PUBLIC INTERNATIONAL LAW All these terms refer to a similar transaction: the creation of written agreements whereby

the states participating bind themselves legally to act in a particular way to set up particular
Distinguish between customary international law and relations between themselves

I. SOURCES OF INTERNATIONAL LAW Upon what is the obligatory nature of treaties founded upon?
- Upon the customary international law principle pacta sunt servanda
Professor Christopher Greenwood, Sources of International Law: An
Introduction; Law-making treaties vs. treaty-contracts
Malcolm Shaw, Chapter 3: Sources, in INTERNATIONAL LAW 6TH ED. (pp. 69-128);
PHIL. CONST. art. 7 § 20-21; art. 8 § 4; art. 18 § 25; What are law-making treaties?
Statute of the International Court of Justice, Article 38(1); - Intended to have universal or general relevance
North Sea Continental Shelf Case: Summary (I.C.J. Reports, 1969); and - Intended to have an effect generally, not restrictively
Mijares v. Ranada, G.R. No. 139325, April 12, 2005. - Agreements whereby states elaborate their perception of international law upon
any given topic or establish new rules which are to guide them for the future in
II. CUSTOMARY INTERNATIONAL LAW their international conduct
- Require the participation of a large number of states to emphasize this effect
International Law Commission, Identification of Customary International - May produce rules that will bind all
Law, UNITED NATIONS A/CN.4/659 (14 March 2013) - Constitute normative treaties
International Law Commission, Identification of Customary International o Agreements that prescribe rules of conduct to be followed
Law (The role of decisions of national courts in the case law of What are treaty-contracts?
international courts and tribunals of a universal character for the - They apply only as between two or a small number of states
purpose of the determination of customary international law); UNITED
NATIONS, A/CN.4/691 (30 March 2016) [GR] Parties that do not sign and ratify the particular treaty in question are not bound by its
terms
III. TREATIES [E] However, where treaties reflect customary law then non-parties are bound, not because
(12 February 2018) it is a treaty provision but because it reaffirms a rule or rules of customary international law
- non-parties may come to accept that provisions in a particular treaty can generate
Malcolm N. Shaw customary law, depending always upon the nature of the agreement, the number of
Article 38 – international conventions, whether general or particular, establishing rules participants and other relevant factors
expressly recognized by the contracting states
Treaties
I. Also known as: 1969 Vienna Convention on the Law of Treaties
- Conventions May 23, 1969
- International agreements
- Pacts Article 3: Agreements between states that are not in written form are not covered under the
- General acts convention, but the following are not affected:
- Charters - Legal force of the agreements
- Statutes - Application to the agreements of rules in the convention that are otherwise still
- Declarations applicable to them under international law
- Covenants - application of the Convention to the relations of States as between themselves
under international agreements to which other subjects of international law are
II. Treaties also parties.
- Express agreements
- Form of substitute legislation undertaken by states Who represents the States in terms of concluding treaties in their favor?
- Superior to custom (a form of tacit agreement) 1. A person who
- Essentially giving away a part of the sovereignty of the state - produces appropriate full powers
- by the practice or intention of the states, purports to have the powers to do such purpose
Preamble/preambulatory clauses – state why the treaty was entered into 2. OR a person who in virtue of their functions and even without full powers who is:
- (Article 7) heads of states, diplomatic organizations, representatives accredited by a state to
international organizations
What governs the power of the president to delegate the executive power to his or her alter
ego’s?
- Administrative Code
Full powers – governed by the domestic laws of the state
What if a person is not authorized as such concludes a treaty?
- Such act produces no legal effect, unless thereafter confirmed by the state
How is the text of a treaty adopted?
- If it is among two parties, by the consent of all the State parties participating in the
drawing up of the treaty
- If it is in an international conference, by vote of 2/3 of the States present and
voting, unless by the same majority they decide to apply a different rule
How is the text of the treaty authenticated?
- By the procedure provided in the text or as agreed upon by the parties who drew
up the treaty
- Or if at an international conference, by the signing, signing ad referendum or
initialing of the representatives or of the Final Act of a corporate incorporating the
text
What are the means of expressing consent to be bound by a treaty
- Signature
o If the treaty provides that signing shall have that effect, or the parties
intend for the signature to have that effect
- Exchange of instruments constituting a treaty
o If the instruments provide that their exchange shall have that effect or if
otherwise it were the intention for the party to be such
- Ratification, Acceptance, or Approval
o If the treaty provides for consent to be by way of ratification, acceptance,
or approval, or otherwise intended by the parties
o Why is there a need for ratification?
 Necessary for a state to cede some of their sovereignty
- Accession
o Where there are open treaties that you can accede to any time
o Intention to be bound during the conference itself but even if the state
did not express such intention during the conference, the state may still
express its accession after the negotiation phase/conference
- Exchange or deposit of instruments of ratification, acceptance, or approval
o Shows consent upon their exchange or deposit, or upon notification if
agreed upon
- Or by any other means agreed upon
When can a state opt to only be bound by a part of the treaty?
- Only when the treaty allows
When can a state choose from differing provisions of a treaty?
- When the party states which provisions it relates and accepts
A state is bound to refrain from acts which would defeat the purpose of the treaty when
- It has signed the treaty, or exchanged the instruments, until it has made clear that
it has no intention of being bound
- It has expressed its intention to be bound, pending entry into force of the treaty
Can a state formulate a reservation to a treaty?
- Yes, upon signing, ratifying, or accepting a treaty
What are the exceptions to this? Or when can a state not formulate a reservation to a treaty?
- When the treaty expressly prohibits reservation
- When the treaty provides only for specific reservations, and the intended
reservation does not fall under such
- When the reservation is contrary to the objectives and purposes of the treaty
Does a reservation require acceptance by the other State party?
- No, unless the treaty so provides
EXCEPT: A reservation requires the acceptance of the other party when:
- When it appears from the limited number of the state parties and the objects and
purposes of the treaty that its entirety be made applicable to all the parties, and is
an essential condition for the consent to be bound
o Unless otherwise provided, the reservation is deemed accepted when no
objections is raised by the end of 12 months from the notification of the
reservation or the date on which it expressed itself to be bound by the
treaty, whichever is later
- When a treaty is a constituent instrument of an international organization (unless
otherwise provided), acceptance by the competent organ of that organization is
required
- Article 20 paragraph 4 ang haba
May a reservation be withdrawn?
- Yes, and the consent of the other parties are no longer needed
o UNLESS THE TREATY OTHERWISE PROVIDES
- BUT IT becomes operative only upon notice to the other state
- Must be in writing
May an objection to the reservation be withdrawn?
- Yes, at any time
o UNLESS THE TREATY OTHERWISE PROVIDES
- But it becomes operative only upon notice to the party who made the reservation
- Must be in writing
How does a treaty enter into force?
- In such manner and upon such date as the treaty provides OR as the negotiating
parties may agree upon
- Otherwise, as soon as consent to be bound has been established
Can a treaty be provisionally applied?
- Yes, if it so provides or if the negotiating states have in some manner agreed as
such
o But the provisional application ceases when a state expresses its
intention not to be bound
What does “PACTA SUNT SERVANDA” mean? (Article 26)
- Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.
- It is a general principle of law
o It cant be breached technically, you can only act either consistently or
inconsistently with it
o It cannot impose any substantive obligations
- Similar principle in OBLICON – Article 1159
Can a state invoke the provisions of its internal law as justification for its failure to observe
the terms of the treaty?
- No, a state cannot invoke its internal law as justification for failure to comply
- EXCEPT UNLESS, the violation of the internal law is manifest and the law is of
fundamental importance
What is the scope of a treaty?
- The entirety of the territories of the state parties
o Unless a different intention is appears from the treaty, or is otherwise
established
Article 30, application and interpretation of treaties and previous and subsequent treaties
What are the grounds which invalidate the consent of a state to a treat?
- Error
o If the error is on a fact which the state relied upon when it consented to
the treaty
- Fraud
o Induced by fraudulent conduct of another state
- Corruption of the representative of a state
o By another state thru threats or acts directed against him
o The consent of the representative is without legal effect
- Threat or use of force by another state
o The treaty is void
Can treaties derogate or overturn customary norms?
- Depends.
- Ergo omnes norms are non-derogable
- If the norms are non-derogable, the treaty will become void
When is a treaty void?
- If it is concluded thru threats or the use of force by another state
- If at the time of its conclusion, it conflicts with a peremptory norm of general
international law
What is a peremptory norm of general international law?
- norm accepted and recognized by the international community of States as a whole
as a norm from which no derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same character.

How shall a treaty be interpreted?
- In good faith, in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in light of its object and purpose
Does a treaty affect third party states?
- No, a treaty does not create obligations nor rights for a third State without its
consent
- EXCEPT
o If the provisions of the treaty provide for the obligation of the third party
state and the third state expressly accepts the obligation in writing
- Obligation
o May be revoked or modified with the consent of the parties to the
treaties and the third state, unless it is established that they have agreed
otherwise
- Rights
o May not be revoked or modified if it is shown that it shall not be so
without the consent of the parties
- Nevertheless, nothing precludes a rule from binding a state as customary rule of
international law
When may termination or withdrawal from a treaty take place?
- In conformity with the treaty (treaty itself provides for the modes, the grounds and
the manner) (pay attention to what the treaty itself allows)
- Or any time, with the consent of all the parties after consultation with the other
parties
Does a multilateral treaty terminate by the fact of the reduction of state parties required to
enter the treaty into force?
- No, reduction of the number of parties required does not terminate the treaty
o unless otherwise provided.
Is a treaty without a provision regarding termination or denunciation subject to termination
or denunciation
- NO, EXCEPT:
o It is established that the parties intend to admit the possibility of such
withdrawal or denunciation
 With AT LEAST 12 months prior notice. (a party shall not give
less than 12 month notice)
o A right of denunciation or withdrawal may be implied from the treaty

Article 39 onwards amendment of treaties May the operation of a treaty be suspended?

 - Yes:
o In accordance with the terms of the treaty
o At any time with the consent of all the parties after consultation
May certain parties to a multilateral treaty suspend its operation as to them only?
- Yes, if:
o The treaty provides for such possibility
o The suspension is not prohibited by the treaty and does not affect rights
of the other state parties and it is not incompatible with the stated
purpose of the treaty
What is the effect of a subsequent treaty relating to the same subject matter as a previous
treaty?
- The earlier treaty will be suspended if such was the intention of the parties
- The earlier treaty will be terminated if:
o It is established by such latter treaty or it can otherwise be implied as the
intention of the parties OR
o The latter treaty is so incompatible with the previous treaty that both
treaties cannot be applied at the same time
What are grounds of terminating or withdrawing from a treaty?
- Material breach of a bilateral treaty by one of the parties
- Supervening impossibility to perform the treaty if such impossibility resulted from
the permanent disappearance or destruction of an object necessary for the
performance of the treaty
o EXCEPT, such supervening impossibility may not be invoked if it is the
result of a breach of the party invoking it
- Fundamental change of circumstances which has occurred with regard to those
existing at the time of the conclusion of the treaty ONLY IF:
o The existence of those circumstances consisted an essential basis for the
consent
o the effect of the change is to radically change the obligations
- (Involuntary) when a new peremptory norm of general international law emerges
which is in conflict with the treaty
Article 63, Severance of Diplomatic or Consular Relations
- between parties to a treaty is without legal effect as to the relations established by
the treaty EXCEPT if such relations are indispensable to the application of the treaty
Article 64, Emergence of New Peremptory Norm
- Any treaty which is in conflict with such norm becomes void and terminates
Procedure
- Notify the parties, notification to indicate which measures shall be taken (in
writing) (may be revoked at any time before it takes effect)
- If after three months and no objection – may carry out measure
- If with objection – parties shall seek a solution
What are the consequences of an invalid treaty?
- Void, the provisions will be without legal effect
- But if acts have been nevertheless performed in reliance of the void treaty:
o Acts performed in good faith rendered before the invalidity was
established are not unlawful just because of the invalidity
What are the consequences of the termination of a treaty?
- Releases the parties from the obligations to be performed under the treaty
- Does not affect rights or obligations created prior to the termination of the treaty
- UNLESS the treaty otherwise provides or the parties otherwise agree
United States v. Nicaragua, ICJ Reports, 1986, p. 14; 76 ILR
A particular rule can be covered simultaneously by the convention and a customary norm.
This happens in codification and crystallization, a state can violate both or it can violate
either.
Even if you have reservations in a treaty norm and it does not excuse you from complying,
because it can be covered by a customary norm.
Facts imputable to the US:
- Mining of Nicaraguan ports and waters; laying of mines at or near the ports without
stating their existence
- Attacks on oil installations, naval bases
- Infringement of air space by US military aircraft
- Supporting the contra force in Nicaragua
Applicable law: Geneva Convention (Article 3; armed conflict of non-international character)
- US under obligation to respect and ensure respect, and thus not encourage persons
engaged in conflict in Nicaragua to act in violation of such Article
Prohibition of the use of force; and the right of self-defense
- Both parties take the view that the principles as to the use of force incorporated in
the UN Charter correspond to those found n CIL
o They therefore accept a treaty-law obligation to refrain from using
threats and force against territorial sovereignty and political integrity of
another state
- Provides for an exception: right of individual or collective self-defense
o Can only be exercised in response to an armed attack
o In the view of the Court, this is to be understood as meaning not merely
action by regular armed forces across an international border, but also
the sending by a State of armed bands on to the territory of another
State, if such an operation, because of its scale and effects, would have
been classified as an armed attack had it been carried out by regular
armed forces
Principle of non-intervention
- Right of every sovereign state to conduct its affairs without outside interference
- Intervention is wrongful when it uses, in regard to such choices, methods of
coercion, particularly force, either in the direct form of military action or in the
indirect form of support for subversive activities in another State.
- States do not have a right of collective armed response to acts which do not
constitute an armed attack
State Sovereignty
 - concept of sovereignty, both in treaty-law and in customary international law,
extends to the internal waters and territorial sea of every state and to the air-
space above its territory.
- the laying of mines necessarily affects the sovereignty of the coastal State, and that
if the right of access to ports is hindered by the laying of mines by another State,
what is infringed is the freedom of communications and of maritime commerce.
Humanitarian Law
- laying of mines in the waters of another State without any warning or notification is
not only an unlawful act but also a breach of the principles of humanitarian law
underlying the Hague Convention
The US justifies its intervention with the acts of the government of Nicaragua to its people,
the US, and the OAS, as well as human rights violations
- But the Court says that even though there are human rights violations, the use of
force of the US cannot be the appropriate method to monitor and enforce
- With regard to the militarization of Nicaragua, the court states that there are no
rules, except for the rules accepted by the state concerned, by treaty or otherwise,
whereby the level of armaments (military weapons and equipment) can be limited
(this principle is valid for all states without exception)
On prohibition on the use of force and the right of self-defense
- Laying of mines and attacks on Nicaraguan ports, naval bases and installation
- Military maneuvers and supply of funds to the contras on the border are not
violations of such prohibition
- Plea of self-defense not available to the US
On breach of Principle of non-intervention
- US, in supporting the contras, intended to coerce Nicaragua with regard to matters
that it could decide on freely
- If one state in the coercion of another state, in assisting armed bands whose
purpose is to overthrow the government of the other state, that amounts to an
intervention in internal affairs
- Financial support, training, supply of weapons, intelligence and logistic support
given by the US to the contras military amounts to breach of principle of non-
intervention
- There is also a violation of humanitarian law
o The US congress restricted the funds for humanitarian aid to the contras
in Nicaragua
- Intervention in the internal affairs of another state do not entitle the base state to
take collective counter-measures with the use of force
All such imputed acts are also breach of the principle of respect for territorial sovereignty –
also infringed by the direct overflight of Nicaraguan territory
- Even the activities in El Salvador imputed to Nicaragua cannot justify these acts
Treaty: of Friendship, Commerce, and Navigation signed at Managua (that the US allegedly
deprived of its purpose and objectives)
Violations: mining of Nicaraguan ports, attack on ports, oil installations, general trade
embargo
- Mining of ports and trade embargo – in direct contradiction with the freedom of
navigation and commerce
- Therefore, US in breach of the treaty
But court has to consider whether the exception provided therefore, the measures necessary
to protect security interests are applicable in the case at bar
- But after examining the evidence, particularly the EO of Pres. Reagan of May 1,
1985, exception NOT applicable
Peaceful Settlement of disputes: Contadora Process
1. Non-use of force in inter-state relations (already jus cogens)
2. Non-intervention with affairs of another state
- Both already customary international norms, and may also be strengthened thru
treaty law
- In this case, the parties codified such norm through their treaty
Saguisag v. Executive Secretary, G.R. Nos. 212426, 212444, January 12, 2016
Enhanced Defense Cooperation Agreement between PH and US:
EDCA authorizes the U.S. military forces to have access to and conduct activities within
certain "Agreed Locations" in the country.
- It was not transmitted to the Senate on the executive's understanding that to do so
was no longer necessary.
- Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and the U.S.
Embassy exchanged diplomatic notes confirming the completion of all necessary
internal requirements for the agreement to enter into force in the two countries.
- According to government, almost two years discussions, and 8 rounds of
negotiations
- Sec. of National Defense and US Ambassador signed, then Noynoy ratified
- Two petitions for certiorari filed challenging constitutionality, saying that the
agreement should have been embodied in a treaty, and not an executive
agreement
1. Whether the essential requisites for a judicial review have been satisfied
- Petitioners have shown that there is an actual and legal controversy
o Thru Senate Resolution, expressed the view that it has constitutional
rights which were infringed
- While petitioners Saguisag et al do not possess legal standing, still they have raised
issues of transcendental importance
o The present petitions cannot qualify
 as citizens', taxpayers', or
legislators' suits; the Senate as a body has the requisite standing, but
considering that it has not formally filed a pleading to join the suit, as it
merely conveyed to the Supreme Court its sense that EDCA needs the
Senate's concurrence to be valid, petitioners continue to suffer from lack
of standing.
o petitioners have presented serious constitutional issues that provide
ample justification for the Court to set aside the rule on standing. The
 transcendental importance of the issues presented here is rooted in the
Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer:
there is a much stricter mechanism required before foreign military
troops, facilities, or bases may be allowed in the country.
2. Whether the President may enter into executive agreements on foreign military bases,
troops or facilities;
3. Whether the provisions under EDCA comply with the Constitution, as well as with existent
laws and treaties
ISSUE: Whether or not the EDCA between the Philippines and the U.S. is constitutional.
RULING: YES. The EDCA is an executive agreement and does not need the Senate's
concurrence. As an executive agreement, it remains consistent with existing laws and
treaties that it purports to implement.
Petitioners contend that the EDCA must be in the form of a treaty duly concurred by Senate.
They hinge their argument under the following Constitutional provisions:
 Sec. 21, Art. VII: “No treaty or international agreement shall be valid and effective
unless concurred in by at least 2/3rds of all the Members of the Senate.”
 Section 25, Article XVIII: “ xxx Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate xxx ”
The President, however, may enter into an executive agreement on foreign military bases,
troops, or facilities, if (a) it is not the instrument that allows the presence of foreign
military bases, troops, or facilities; or (b) it merely aims to implement an existing law or
treaty
In Commissioner of Customs v. Eastern Sea Trading: Executive Agreements
are defined as international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a more or
less temporary nature.
Treaties are formal documents which require ratification with the approval of two-thirds of
the Senate. The right of the Executive to enter into binding agreements without the necessity
of subsequent Congressional approval has been confirmed by long usage.
The Visiting Forces Agreement – a treaty ratified by the Senate in 1999 – already allowed the
return of US troops. EDCA is consistent with the content, purpose, and framework of the
Mutual Defense Treaty and the VFA. The practice of resorting to executive agreements in
adjusting the details of a law or a treaty that already deals with the presence of foreign
military forces is not at all unusual in this jurisdiction.
In order to keep the peace in its archipelago and to sustain itself at the same time against the
destructive forces of nature, the Philippines will need friends. Who they are, and what form
the friendships will take, are for the President to decide. The only restriction is what the
Constitution itself expressly prohibits. EDCA is not constitutionally infirm. As an executive
agreement, it remains consistent with existing laws and treaties that it purports to
implement.
Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011
Non-Surrender Bilateral Agreement between US and PH
- Agreement seeks to protect persons from US and PH from frivolous and
harassment suits that may be brought against them in international tribunals
- Via Exchange of Notes, DFA Sec Blas Ople accepted the proposals
- US Ambassador stated that such exchange of notes constituted a legally binding
agreement under international law, and as such under US law, no longer required
the advice and consent of the US Senate
- Petitioners assail the procedure in putting into effect the agreement, that the mere
exchange of notes cannot be a valid medium for concluding the agreement; the
respondent argued that the agreement was an executive agreement which no
longer required the concurrence of the Senate
Validity of the Agreement
- Doctrine of incorporation, as expressed in Section 2, Article II of the Constitution,
wherein the Philippines adopts the generally accepted principles of international
law and international jurisprudence as part of the law of the land and adheres to
the policy of peace, cooperation, and amity with all nations. An exchange of notes
falls into the category of inter-governmental agreements, which is an
internationally accepted form of international agreement.
- An exchange of notes is a record of a routine agreement, that has many similarities
with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State
repeats the text of the offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its
speedy procedure, or, sometimes, to avoid the process of legislative approval.
- In another perspective, the terms exchange of notes and executive agreements
have been used interchangeably, exchange of notes being considered a form of
executive agreement that becomes binding through executive action. On the other
hand, executive agreements concluded by the President sometimes take the form
of exchange of notes and at other times that of more formal documents
denominated agreements or protocols.
- It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as
the Non-Surrender Agreement itself, or as an integral instrument of acceptance
thereof or as consent to be bound is a recognized mode of concluding a legally
binding international written contract among nations.
Senate Concurrence not required
- International agreements may be in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive agreements that are
similar to treaties, except that they do not require legislative concurrence and are
usually less formal and deal with a narrower range of subject matters than treaties.
- But over and above the foregoing considerations is the fact that save for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution when a
 treaty is required, the Constitution does not classify any subject, like that involving
political issues, to be in the form of, and ratified as, a treaty. What the Constitution
merely prescribes is that treaties need the concurrence of the Senate by a vote
defined therein to complete the ratification process.
- The Court has, in Eastern Sea Trading, as reiterated in Bayan, given recognition to
the obligatory effect of executive agreements without the concurrence of the
Senate:
o [T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by
long usage. From the earliest days of our history, we have entered
executive agreements covering such subjects as commercial and consular
relations, most favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the
settlement of claims. The validity of these has never been seriously
questioned by our courts.
Agreement not in Contravention of the Rome statute
- Actually complements of each other
- the Rome statute recognizes the primary jurisdiction of the state courts with regard
to crime committed in their jurisdiction
- Moreover, under international law, there is a considerable difference between a
State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of
Treaties, a signatory state is only obliged to refrain from acts which would defeat
the object and purpose of a treaty; whereas a State-Party, on the other hand, is
legally obliged to follow all the provisions of a treaty in good faith.
- In the instant case, it bears stressing that the Philippines is only a signatory to the
Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is
only obliged to refrain from acts which would defeat the object and purpose of the
Rome Statute. Any argument obliging the Philippines to follow any provision in the
treaty would be premature.
- As a result, petitioners argument that State-Parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, specifically
Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon State-
Parties, not signatories.
- Furthermore, a careful reading of said Art. 90 would show that the Agreement is
not incompatible with the Rome Statute. Specifically, Art. 90(4) provides that [i]f
the requesting State is a State not Party to this Statute the requested State, if it is
not under an international obligation to extradite the person to the requesting
State, shall give priority to the request for surrender from the Court. x x x In
applying the provision, certain undisputed facts should be pointed out: first, the US
is neither a State-Party nor a signatory to the Rome Statute; and second, there is an
international agreement between the US and the Philippines regarding extradition
or surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the
States is not a State-Party to the Rome Statute.
Sovereignty limited by International Agreements
- Petitioners postulate that the government has waived a part of its sovereignty
because of the Agreement and such violates the constitution
- To be sure, the nullity of the subject non-surrender agreement cannot be
predicated on the postulate that some of its provisions constitute a virtual
abdication of its sovereignty. Almost every time a state enters into an international
agreement, it voluntarily sheds off part of its sovereignty.
- By their nature, treaties and international agreements actually have a limiting
effect on the otherwise encompassing and absolute nature of sovereignty. By their
voluntary act, nations may decide to surrender or waive some aspects of their state
power or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal undertaking of one contracting
party to grant the same privileges or immunities to the other. On the rationale that
the Philippines has adopted the generally accepted principles of international law
as part of the law of the land, a portion of sovereignty may be waived without
violating the Constitution. Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.
No Grave Abuse of Discretion on the part of the President
- The Constitution vests in the President the power to enter into international
agreements, subject, in appropriate cases, to the required concurrence votes of the
Senate. But as earlier indicated, executive agreements may be validly entered into
without such concurrence. The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.
- In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President
Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested in her by the Constitution.
At the end of the day, the President by ratifying, thru her deputies, the non-
surrender agreement did nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office.
- The power to ratify a treaty, the Statute in that instance, rests with the President,
subject to the concurrence of the Senate, whose role relative to the ratification of a
treaty is limited merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or having secured the latters
consent to the ratification of the treaty, refuse to ratify it. This prerogative, the
Court hastened to add, is the Presidents alone and cannot be encroached upon via
a writ of mandamus. Barring intervening events, then, the Philippines remains to be
just a signatory to the Rome Statute.
Agreement need not be in the form of a treaty
- The agreement does not amend nor is repugnant to the rome statute
- Far from it, as earlier explained, the Agreement does not undermine the Rome
Statute as the former merely reinforces the primacy of the national jurisdiction of
the US and the Philippines in prosecuting criminal offenses committed by their
respective citizens and military personnel, among others. The jurisdiction of the ICC
pursuant to the Rome Statute over high crimes indicated thereat is clearly and
 unmistakably complementary to the national criminal jurisdiction of the signatory
states.
China National Machinery & Equipment Corp. v. Santamaria, G.R. No. 185572, February 7,
2012
- Petitioner CNMEG and North Luzon Railway Corporation (NorthRail) entered into
contract agreement regarding construction of Phase 1 of the Northrail system
- Respondents filed a complaint for injunction, alleging as void the agreement as
being contrary to the constitution and law
Issue: Whether or not the agreement is an executive agreement which cannot be questioned
before a court?
The agreement is not an executive agreement
- In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to
a treaty, except that the former (a) does not require legislative concurrence; (b) is
usually less formal; and (c) deals with a narrower range of subject matters.
- Despite these differences, to be considered an executive agreement, the following
three requisites provided under the Vienna Convention must nevertheless concur:
(a) the agreement must be between states; (b) it must be written; and (c) it must
governed by international law. The first and the third requisites do not obtain in
the case at bar.
- CNMEG is neither a government nor a government agency.
- The Contract Agreement was not concluded between the Philippines and China,
but between Northrail and CNMEG.By the terms of the Contract Agreement,
Northrail is a government-owned or -controlled corporation, while CNMEG is a
corporation duly organized and created under the laws of the Peoples Republic of
China. Thus, both Northrail and CNMEG entered into the Contract Agreement as
entities with personalities distinct and separate from the Philippine and Chinese
governments, respectively.
- The contract provides that the applicable law that shall govern is Philippine law
- Since the Contract Agreement explicitly provides that Philippine law shall be
applicable, the parties have effectively conceded that their rights and obligations
thereunder are not governed by international law.
- It is therefore clear from the foregoing reasons that the Contract Agreement does
not partake of the nature of an executive agreement. It is merely an ordinary
commercial contract that can be questioned before the local courts.
Issue: whether or not CNMEG is entitled to immunity, thereby precluding it from being
sued by a local court
The courts have the competence and jurisdiction to ascertain the validity of the contract
agreement as CNMEG has agreed that it will not be afforded immunity from suit.
- This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,
to wit:
- There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the immunity of the
sovereign is recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis.
- The Philippines adheres to the restrictive theory
- CNMEG is engaged in proprietary activity.
- CNMEG failed to adduce evidence that it is immune from suit under Chinese Law
o Even assuming arguendo that CNMEG performs governmental functions,
such claim does not automatically vest it with immunity. This view finds
support in Malong v. Philippine National Railways, in which this Court
held that (i)mmunity from suit is determined by the character of the
objects for which the entity was organized.
o Its designation as the Primary Contractor does not automatically grant it
immunity, just as the term implementing agency has no precise definition
for purposes of ascertaining whether GTZ was immune from suit.
Although CNMEG claims to be a government-owned corporation, it failed
to adduce evidence that it has not consented to be sued under Chinese
law. Thus, following this Courts ruling in Deutsche Gesellschaft, in the
absence of evidence to the contrary, CNMEG is to be presumed to be a
government-owned and -controlled corporation without an original
charter. As a result, it has the capacity to sue and be sued under Section
36 of the Corporation Code.
- CNMEG failed to present certification from the DFA
o The question now is whether any agency of the Executive Branch can
make a determination of immunity from suit, which may be considered as
conclusive upon the courts. This Court, in Department of Foreign Affairs
(DFA) v. National Labor Relations Commission (NLRC), emphasized the
DFAs competence and authority to provide such necessary determination
o This authority is exclusive to the DFA
o In the case at bar, CNMEG offers the Certification executed by the
Economic and Commercial Office of the Embassy of the Peoples Republic
of China, stating that the Northrail Project is in pursuit of a sovereign
activity.[47] Surely, this is not the kind of certification that can establish
CNMEGs entitlement to immunity from suit, as Holy See unequivocally
refers to the determination of the Foreign Office of the state where it is
sued.
o Further, CNMEG also claims that its immunity from suit has the executive
endorsement of both the OSG and the Office of the Government
Corporate Counsel (OGCC), which must be respected by the courts.
However, as expressly enunciated in Deutsche Gesellschaft, this
determination by the OSG, or by the OGCC for that matter, does not
inspire the same degree of confidence as a DFA certification. Even with a
DFA certification, however, it must be remembered that this Court is not
precluded from making an inquiry into the intrinsic correctness of such
certification.
- An agreement to submit any dispute to arbitration may be construed as an implicit
waiver of immunity from suit.
Reservations to the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide (Advisory Opinion, I.C.J. Reports, 1951)
[GR]: You adopt the treaty as a whole, the states must accept your reservation; supposing
that reservations are allowed and the reservation is not incompatible with the object and
purpose of the treaty
[E]: if you objected, you are not a party with respect to the party that objected to your
reservation
- BUT IT DEPENDS ON THE CIRCUMSTANCES OF THE OBJECTING PARTY
- Think about the circumstances that gave rise to such reservation
Situation: Valid reservation because compatible with the object and purpose and such
reservation provided expressly by the treaty
- Relationship between the reserving party and the objecting party  the reserving
party is not a party with respect to the objecting party
ISSUE 1:
Can the reserving State be regarded as being a party to the Convention while still maintaining
its reservation if the reservation is objected to by one or more of the parties to the
Convention but not by others?
A State which has made and maintained a reservation which has been objected to by
one or more of the parties to the Convention but not by others
- Regarded as party to the Convention: If the reservation is compatible with the
object and purpose of the convention
- But not regarded as a party to the Convention, if the reservation is otherwise
(incompatible)
- BUT! The Court further explains that the compatibility of the reservation and the
object and purpose of the Convention is the criterion to determine the attitude of
the State which makes the reservation and of the State which objects
o That is why according to the court, this question cannot be given an
absolute answer
o The appraisal of the reservation and the effect of objections depend
upon the circumstances of each individual case
NOTES:
A multilateral Convention is the result of an agreement freely concluded
- Linked with the notion of integrity of the convention as adopted (traditional
concept of this notion envisages the principle that no reservation is valid unless
accepted by all contracting parties)
! But as regards the Genocide Convention, such a traditional concept is made more flexible
(could be attributable to the universal character of the UN under which the Geneva
Convention was concluded)
- Need for flexibility in the operation of multilateral conventions
- The Genocide Convention, altho adopted unanimously, was nevertheless still the
result of a series of majority votes
o Which make it necessary for certain states to make reservations
Just because no article providing for reservations, doesn’t mean one can infer that such are
prohibited
- In the absence of express provisions, to determine possibility of making
reservations – one must consider their character, purpose, provisions, mode of
preparation and adoption
o Preparation of Genocide Convention shows that an undertaking was
reached within the GA on the faculty to make reservations  States,
becoming parties to the Convention gave their assent thereto
What is the character of the reservations which may be made and the objections which may
be raised thereto?
- Solution found on the special characteristics of the Convention
o Intended to be universal in scope
o Purpose: purely humanitarian and civilizing
o Contracting parties don’t have individual interests = common interest for
all = as many states as possible to participate = such purpose would be
defeated if an objection to a minor reservation would result in exclusion
from the Convention
- Depend upon the circumstances of each case
ISSUE 2:
If the answer to Question 1 is in the affirmative, what is the effect of the reservation as
between:
- The reserving state and the parties which OBJECT to the reservation?
o If a party to the Convention objects to a reservation which it considers to
be incompatible with the object and purpose of the Convention  such
party can consider the RESERVING PARTY as NOT a party to the
Convention
- The reserving state and the parties which ACCEPT the reservation
o If the party accepts the reservation as being compatible, then it can then
consider such RESERVING PARTY AS A STATE PARTY
NOTES:
No state can be bound by a reservation to which it has not consented  each state, on the
basis of its individual appraisals of the reservations, within the limits of the object and
purpose, will OR will not consider the reserving state to be a party (=depends on the
objecting state’s “beliefs”)
But! Sometimes the objection might aim to a total exclusion from the Convention  because
assent considered as incompatible with the purpose of the Convention  might wish to
settle the dispute (the objection ) thru (1) special agreement or (2) procedure laid down in
the Convention itself
ISSUE 3:
What would be the legal effect as regards the answer to Question 1 if an objection to a
reservation is made:
- By a signatory which has not yet ratified?
o Such objection by such a signatory can only have the legal effect
(objection becomes final) ONLY UPON RATIFICATION.
o Until that moment, it merely serves as notice to the reserving state of the
eventual attitude of the signatory state
 - Because such signatory states have already taken certain steps necessary
for the exercise of the right of being a party  already has a provisional
status
- By a state entitled to sign or accede but which has not yet done so?
- Such an objection to the reservation is without legal effect
- Inconceivable that a state possessing no rights under the convention
could exclude another state
Case Concerning Gabcikovo-Nagymaros Project, (Hungary v. Slovakia) 37 ILM, 1998
Court findings:
 Hungary was not entitled to suspend and subsequently abandon, in 1989, its part
of the works in the dam project (on the Nagymaros Project and on the Gabcikovo
Project), as laid down in the treaty signed in 1977 by Hungary and Czechoslovakia
and related instruments
 Czechoslovakia was entitled to start, in November 1991, preparation of an
alternative provisional solution (called "Variant C"), but not to put that solution into
operation in October 1992 as a unilateral measure
 Hungary's notification of termination of the 1977 Treaty and related instruments
on 19 May 1992 did not legally terminate them (and that they are consequently still
in force and govern the relationship between the Parties)
 Slovakia, as successor to Czechoslovakia became a party to the Treaty of 197 as of
January 1, 1993
 Hungary and Slovakia must negotiate in good faith in the light of the prevailing
situation, and must take all necessary measures to ensure the achievement of the
objectives of the 1977 Treaty;
 unless the Parties agree otherwise, a joint operational regime for the dam on
Slovak territory must be established in accordance with the Treaty of 1977
 each Party must compensate the other Party for the damage caused by its conduct;
and that the accounts for the construction and operation of the works must be
settled in accordance with the relevant provisions of the 1977 Treaty and its
related instruments.
Factual Antecedents:
- Case rose out of the signatures of Hungary and Czechoslovakia on Sept. 16, 1977 =
1977 treaty concerning the construction and operation of the Gabcikovo-
Nagymaros System of Locks as a joint investment
- Treaty entered into force on June 30, 1978
- Joint investment aimed at the production of hydroelectricity, protection of the
areas against flooding, improvement of navigation on the section in Danube
o A stretch of the Danube river approximately 20 km, between Bratislava in
Slovakia and Budapest in Hungary
- The project was supposed to be an integrated joint project with the two parties on
equal footing in respect of the financing, construction, and operation of the works
o Single and indivisible nature to be realized thru the Joint Contractual Plan
which complemented the treaty
- As a result of intense criticism which the Project had generated in Hungary, the
Hungarian Government decided on 13 May 1989 to suspend the works at
Nagymaros pending the completion of various studies which the competent
authorities were to finish before 31 July 1989.
- Lastly, on 27 October 1989, Hungary decided to abandon the works at Nagymaros
and to maintain the status quo at Dunakiliti.
- Czechoslovakia also started investigating alternative solutions. One of them, an
alternative solution subsequently known as "Variant C", entailed a unilateral
diversion of the Danube by Czechoslovakia on its territory some 10 km upstream of
Dunakiliti
- Slovak Government then decided to begin in Sept. 1991 construction to put the
project into operation by the provisional solution Variant C
- On May 19, 1992 Hungary transmitted to the Czechoslovak Govt a “Note Verbale”
terminating the 1977 treaty to take effect on May 25, 1992
- On Jan 1, 1993, Slovakia became an independent State and that in the Special
Agreement thereafter concluded between Hungary and Slovakia the Parties agreed
to establish and implement a temporary water management regime for the
Danube
ISSUE 1:
Whether Hungary was entitled to suspend and subsequently abandon in 1989 the works on
the Projects for which the 1977 treaty attributed responsibility to Hungary (NO, NO STATE OF
NECESSITY)
- Article 60-62 of the Vienna Convention concerning the termination and suspension
of the operation of treaties
- The Vienna Convention is also applicable to the Protocol whereby both parties
agreed to accelerate completion of the works
o A determination of whether a convention is or is not in force, and
whether it has or has not been properly suspended or denounced, is to
be made pursuant to the law of treaties. On the other hand, an
evaluation of the extent to which the suspension or denunciation of a
convention, seen as incompatible with the law of treaties, involves the
responsibility of the State which proceeded to it, is to be made under the
law of State responsibility.
- The conduct of Hungary in abandoning the works can only be interpreted as an
expression of its unwillingness to comply with at least some of the provisions of the
Treaty and the Protocol accelerating the project
o The effect of Hungary's conduct was to render impossible the
accomplishment of the system of works that the Treaty expressly
described as "single and indivisible".
- So then, was there a state of necessity that could have permitted Hungary to
abandon its responsibility without incurring international responsibility?
o There was no state of necessity.
o The state of necessity is a ground recognized by customary international
law for precluding the wrongfulness of an act not in conformity with an
international obligation. It considers moreover that such ground for
precluding wrongfulness can only be accepted on an exceptional basis.
o Elements:
 (1) it must have been occasioned by an "essential interest" of
the State which is the author of the act conflicting with one of
its international obligations
  (2) that interest must have been threatened by a "grave and
imminent peril";
 (3) the act being challenged must have been the "only means"
of safeguarding that interest;
 (4) that act must not have "seriously impair[ed] an essential
interest" of the State towards which the obligation existed;
 (5) and the State which is the author of that act must not have
"contributed to the occurrence of the state of necessity".
o The concerns expressed by Hungary for its natural environment in the
region affected by the project relates to an essential interest of that State
o BUT! It is of the view, however, that, with respect to both Nagyniaros and
Gabcikovo, the perils invoked by Hungary, without prejudging their
possible gravity, were not sufficiently established in 1989, nor were they
"imminent"; and that Hungary had available to it at that time means of
responding to these perceived perils other than the suspension and
abandonment of works with which it had been entrusted. What is more,
negotiations were under way which might have led to a review of the
Project and the extension of some of its time limits, without there being
need to abandon it.
o Hungary was also presumably aware of the situation when it entered into
the treaty
ISSUE 2:
Whether Czechoslovak was entitled to proceed in 1991 to proceed to the provisional solution
- Yes but only insofar as it confined itself to undertaking works which did not
predetermine the final decision to be taken by it?, but not from October of 1992
- The Treaty provided for a single and indivisible purpose, something Variant C, a
unilateral action, which was decided on and was to be implemented by Slovakia on
its own, cannot accomplish.
- Despite having some similarity to the treaty, Variant C differs sharply from the
treaty in its legal characteristics
- Additionally –
o Slovakia tried to invoke the principle of approximate application to justify
the operation of Variant C, as the only possibility of fulfilling the purposes
of the 1977 treaty. But there is no such principle in customary
international law, and even if there was, it could only be employed within
the limits of the treaty in question (Variant C, not similar to the Treaty of
1977)
o Slovakia also maintained that it was acting under a duty to mitigate
damages as there is a general principle of international law that a party
must do what it can to mitigate damages it has sustained due to the non-
performance of the other contracting party  but the court said that
such a principle could not justify an otherwise wrongful act
ISSUE 3:
What are the legal effects of the notification served by Hungary of the termination of the
treaty?
- No effect
- Five arguments of Hungary and the Court’s response
- (1) State of necessity
o Even if a state of necessity is found to exist, it is not a ground for the
termination of a treaty; can only be invoked to exonerate from its
responsibility a state which has failed to implement a treaty
- (2) Impossibility of performance
o the Treaty actually provides the parties with necessary means to proceed
at any time, by negotiation, to the required readjustments between
economic imperatives and ecological imperatives
- (3) Fundamental change of circumstances
o but the prevalent political conditions according to the court were not so
closely linked to the object and purpose of the treaty that they altered
the consent of the parties thereto
o nor can the environmental changes be said to be unforeseen
o articles 15, 19, and 20 are even actually designed to accommodate
change
- (4) Material breach of treaty (as to the construction and putting into effect of
Variant C)
o it was only a preparatory activity, it constructed the works that would
lead to the operation of Variant C, and hence it cannot be said to have
acted unlawfully
o Slovakia only violated the treaty when it diverted the waters of the
Danube into the bypass canal in October of 1992 (so May 1992
notification of termination premature)
- (5) Development of new norms of international environmental law
o Yes, there are new peremptory norms of environmental law that
emerged since the conclusion of the 1997 treaty and that according to
the Vienna Convention, the treaty is voided by the emergence of a jus
cogens law
o BUT these new norms are relevant of the implementation of the treaty
and that the parties could by agreement incorporate them thru the
application of Articles 15, 19, and 20
o These articles do not contain specific obligations of performance but
require the parties, in carrying out their obligations to ensure that the
quality of water in the Danube is not impaired and that nature is
protected, to take new environmental norms into consideration when
agreeing upon the means to be specified in the joint contractual plan
o By inserting these evolving provisions in the treaty, the parties recognized
the potential necessity to adapt the Project = treaty is not static and is
open to adapt to emerging norms of international law
- FINALLY, even though both Hungary and Czech failed to comply with their
obligations under the 1977 treaty, this reciprocal wrongful conduct did not bring
the treaty to an end nor justify its termination
ISSUE 4:
Whether Slovakia became a party to the 1977 treaty as successor to Czech? (Hungary says
that treaty ceased to be in force as a treaty when one of the parties “disappeared”)
- YES
- The nature and character of the treaty provides for its application
o It is a joint investment (involves territories of both)
 o Also involves an international waterway
o Interests of other users of Danube are affected
o Article 12 of Vienna Convention  treaties of a territorial character have
been regarded as unaffected by a succession of States = reflects a rule of
CIL = establishes a “territorial regime”
o Created rights and obligations attaching to the parts of the Danube to
which is treaties
IN CONCLUSION
- 1977 treaty still in force and governs the relationship between the parties
treaty enacted before the Vienna convention plus one of the parties to the conflict was not a
state party to the convention – Slovakia came into existence in 1993
Law of treaty – law that determines validity of the parties in the termination
Law of state responsibility – responsibility as a state arising out of a wrongful act
(consequence of the act that is inconsistent with international law, the mitigating
circumstances, justifying circumstances)
When a treaty has a specific geographical area, the territories still covered by such
geographical area are still governed under the treaty
Pharmaceutical and Healthcare Association of the Philippines v. Health Secretary, G.R. No.
173034, Oct. 9, 2007
Facts:
- Petition for certiorari seeking to nullify the Revised IRR of the Milk Code
- One of the perambulatory clauses of the Milk Code is that it seeks to give effect to
Article 11 of the International Code of Marketing of Breastmilk Substitutes (ICMBS)
a code adopted by the WHA in 1981 (resolutions that breastfeeding should be
supported etc)
- 1990 PH ratified International Convention on the Rights of the Child, Art. 24 of
which provides that States should take measures to diminish infant and child
mortality and to inform segments of society of advantages of breastfeeding
- Petitioner, as representatives of manufacturers of breastmilk substitutes assailed
the constitutionality of the RIRR of the milk code
ISSUE 1: Whether petitioner has standing as real-party-in-interest
- Yes, as representatives of the pharmaceutical health care industry
ISSUE 2: Whether the pertinent international instruments adverted to by the respondents
are considered as law of the land (ICMBS yes, but not as to prohibition, WHA resolutions,
No.)
As to the ICMBS –
- Not a treaty as not concurred in by 2/3 of the senate
- BUT transformed thru domestic law, thru the Milk Code = Milk Code has force and
effect of law, not ICMBS per se
- Milk Code almost verbatim replication of ICMBS, BUT no prohibition on advertising
of breastmilk substitutes, in fact provides that advertising of breastfeeding may be
allowed if duly authorized or approved by the Inter-Agency Committee
As to the WHA resolutions -
- Also not a treaty as not concurred in by 2/3 of the senate
- But, could they be deemed as part of customary international law and then
deemed as incorporated into the law of the land?
o Apparently, the WHA Resolution adopting the ICMBS and subsequent
WHA Resolutions urging member states to implement the ICMBS are
merely recommendatory and legally non-binding. Thus, unlike what has
been done with the ICMBS whereby the legislature enacted most of the
provisions into law which is the Milk Code, the subsequent WHA
Resolutions, specifically providing for exclusive breastfeeding from 0-6
months, continued breastfeeding up to 24 months, and absolutely
prohibiting advertisements and promotions of breastmilk substitutes,
have not been adopted as a domestic law.
o As previously discussed, for an international rule to be considered as
customary law, it must be established that such rule is being followed by
states because they consider it obligatory to comply with such rules
(opinio juris). Respondents have not presented any evidence to prove
that the WHA Resolutions, although signed by most of the member
states, were in fact enforced or practiced by at least a majority of the
member states; neither have respondents proven that any compliance by
member states with said WHA Resolutions was obligatory in nature.
o Respondents failed to establish that the provisions of pertinent WHA
Resolutions are customary international law that may be deemed part of
the law of the land.
o Consequently, legislation is necessary to transform the provisions of the
WHA Resolutions into domestic law. The provisions of the WHA
Resolutions cannot be considered as part of the law of the land that can
be implemented by executive agencies without the need of a law
enacted by the legislature. (vs. regulations that are binding on member
states)
- Secondly, can the DOH implement the provisions of the WHA resolutions by virtue
of its powers? (whether the prohibition on advertising has been adopted as
national health policy)
o But the national policy on infant and young child feeding does embodied
in an AO does not provide for the absolute prohibition on promotion of
breastmilk substitutes
o The national policy of protection, promotion and support of
breastfeeding cannot automatically be equated with a total ban on
advertising for breastmilk substitutes.
 In view of the enactment of the
Milk Code which does not contain a total ban on the advertising and
promotion of breastmilk substitutes, but instead, specifically creates an
IAC which will regulate said advertising and promotion, it follows that a
total ban policy could be implemented only pursuant to a law amending
the Milk Code passed by the constitutionally authorized branch of
government, the legislature.
o Thus, only the provisions of the Milk Code, but not those of subsequent
WHA Resolutions, can be validly implemented by the DOH through the
subject RIRR.
ISSUE 3: Whether the provisions of the RIRR are in accordance with those of the Milk Code
- Not all, most especially the absolute ban on advertising of breastmilk substitutes as
the Milk Code itself does not band and actually recognizes the need when it
provided for the process of getting approval from the Inter-Agency Committee
Issue: Authority of the health secretary to promulgate the RIRR
~~ Prohibition can never be a norm of customary norm because the element of opinion juris
(that the country believes it to be obligatory) is absent
Pimentel v. Executive Secretary, G.R. 158088, July 6, 2005
Facts:
- This is a petition for mandamus filed by petitioners to compel the Office of the
Exec. Sec. and DFA to transmit the signed copy of the Rome Statute of the ICC to
the Senate of the Philippines for its concurrence
- The Rome Statute established the ICC which shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern.
- Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes
and the crime of aggression as defined in the Statute.
- The Statute was opened for signature by all states in Rome on July 17, 1998 and
had remained open for signature until December 31, 2000. The Philippines signed
the Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo. Its
provisions, however, require that it be subject to ratification, acceptance or
approval of the signatory states.
- It is the theory of the petitioners that ratification of a treaty, under both domestic
law and international law, is a function of the Senate. Hence, it is the duty of the
executive department to transmit the signed copy of the Rome Statute to the
Senate to allow it to exercise its discretion with respect to ratification of treaties.
ICC – will only have jurisdiction when there’s no meaningful authority
What could be the reason for the hesitation of the Exec to transmit – GMA time during this
petition, there were accusations of state sponsored killings, Gen. Palparan, crime that she
might be indicted for if the ICC had jurisdiction over her
ICC ratified during the time of PNoy but prior to that time, transformed the ICC Statute thru
domestic law – IHL law (adopted and defined crimes against humanity, genocide, war crimes
under our domestic law, the only thing we did not adopt was the jurisdiction of the ICC)
Sec 27 Article 6 – what if the president does not want to sign – override the veto thru vote of
2/3 separately of both houses
ISSUE 1: Do petitioners have legal standing to file the suit?
- Only Senator Pimentel as member of the senate has legal standing
- 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 sustain a direct injury from the non- transmittal of the signed
text of the Rome Statute to the Senate.
- Senator Pimentel bases his standing as being part of the senate, the body which
has the power to concur in a treaty, as such will be affected and has legal standing
ISSUE 2: Whether the Exec Sec and the DFA have a ministerial duty to transmit to the senate
the signed text of the treaty
- NO!
- Petitioners submission that the 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 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, 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 behalf, a state expresses its willingness to be bound
by the provisions of such treaty. After the treaty is signed by the states
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
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 not to ratify the same.
- It should be emphasized that under our Constitution, the power to ratify is vested
in the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent for its ratification, refuse to
ratify it. Although the refusal of a state to ratify a treaty which has been signed in
its behalf is a serious step that should not be taken lightly, such decision is within
the competence of the President alone, which cannot be encroached by this Court
via a writ of mandamus. This Court has no jurisdiction over actions seeking to
enjoin the President in the performance of his official duties. The Court, therefore,
cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the
signed text of Rome Statute to the Senate.
Steps in the treaty-making process:
 Negotiation
o May be undertaken directly by the head of state but he now usually
assigns this task to his authorized representatives who are provided with
full powers.
o It is standard practice for one of the parties to submit a draft of the
proposed treaty which, together with the counter-proposals, becomes
the basis of the subsequent negotiations.
o The negotiations may be brief or protracted, depending on the issues
involved, and may even collapse in case the parties are unable to come to
an agreement on the points under consideration.
 Signature
o If and when the parties decide on the terms of the treaty, it is now open
for signature
o A means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties
o It DOES NOT indicate the final consent of the state in cases where
ratification of the treaty is required.
o The document is ordinarily signed in accordance with the alternat, that is,
each of the several negotiators is allowed to sign first on the copy which
he will bring home to his own state.
  Ratification
o The formal act by which a state confirms and accepts the provisions of a
treaty concluded by its representatives.
o Purpose - to enable the contracting states to examine the treaty more
closely and to give them an opportunity to refuse to be bound by it
should they find it inimical to their interests.
 It is for this reason that most treaties are made subject to the
scrutiny and consent of a department of the government other
than that which negotiated them.
 Exchange of instruments of ratification
o Usually also signifies the effectivity of the treaty unless a different date
has been agreed upon by the parties.
o ***Where ratification is dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed effective upon its
signature.
Customary norm – to be binding in the PH, either incorporated or transformed
Treaty – can only be ratified, but can be transformed, CANNOT BE INCORPORATED
It should be underscored that the signing of the treaty and the ratification are two separate
and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily
intended as a means of authenticating the instrument and as a symbol of the good faith of
the parties. It is usually performed by the states authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representative. It is generally held to be an
executive act, undertaken by the head of the state or of the government.
Executive Order No. 459
- issued by President Fidel V. Ramos on November 25, 1997
- provides the guidelines in the negotiation of international agreements and its
ratification.
- mandates that after the treaty has been signed by the Philippine representative,
the same shall be transmitted to the Department of Foreign Affairs.
- The Department of Foreign Affairs shall then prepare the ratification papers and
forward the signed copy of the treaty to the President for ratification.
- After the President has ratified the treaty, the Department of Foreign Affairs shall
submit the same to the Senate for concurrence.
- Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs
shall comply with the provisions of the treaty to render it effective.
STATEHOOD
Malcolm Shaw, States, INTERNATIONAL LAW 6TH ED (pp. 197-223)
Article 1 of the Montevideo Convention on the Rights and Duties of States:What are the
elements of a state?
1. Permanent population
2. Permanent and defined territory
3. Government
4. Capacity to enter into relations with other states
Other factors are also determinative, such as self-determination and recognition, but the
relevant framework revolves essentially around territorial effectiveness.
The state is commonly defined as a community which consists of a territory and a population
subject to an organized political authority and that such a state is characterized by sovereignty.
Permanent population
- It is naturally required and there is no specification of a minimum number of
inhabitants, but there is an issue that relates to the question of an acceptable
minimum with regard to self-determination issues
Defined territory
- Focuses upon the requirement for a particular territorial base upon which to operate
- A state may be recognized as a legal person even though it is involved in a dispute
with its neighbors as to the precise demarcation of its frontiers, so long as there is a
consistent band of territory which is undeniably controlled by the government of the
alleged state
- What matters is the presence of a stable community within a certain area, even
though its frontiers may be uncertain, since it is possible for the territory of a state
to be split into distinct parts
Government or central control
- For a political society to function reasonably effectively
- However this is not a precondition for recognition as an independent country
- Should be regarded more as an indication of some sort of coherent political structure
and society
- In a situation that lacks effective central control, this might be balanced by significant
international recognition, culminating in membership of the UN.
- BUT NEVERTHELESS, a foundation of effective control is required for statehood
- But still also, a breakdown in order or loss of control will not obviate statehood. The
collapse of governance within a state (sometimes referred to as “failed state”) has
no necessary effect upon the status of that state as a state
Capacity to enter into relations with other states
- An aspect of the existence as an indication of the importance attached to recognition
by other countries
- It is a capacity NOT limited to sovereign nations, since international organizations,
non-independent states can enter into legal relations with other entities under the
rules of international law
- But it is essential for a sovereign state to be able to create such legal relations with
other units as it sees fit – where this is absent, the entity cannot be an independent
state
- The essence of such capacity is INDEPENDENCE
o The state is not subject to another sovereignty and is unaffected either by
factual dependence upon other states or by submission to the rules of
international law
o BUT! It is possible for a state to be accepted as independent even though,
exceptionally, certain functions of government are placed in the hands of
an outside body

Self-determination and the criteria of statehood
- The best approach is to accept the development of self-determination as an
additional criterion of statehood, denial of which would obviate statehood
*From Yori reviewer:
Self-determination — the right to freely determine their political status and freely pursue their
economic, social and cultural development. Self-determination has 2 levels:
1. Establishment of new states
 claim by a group within an established state to
break away and form a new entity
2. Does not establish a new state
 claims to be free from external coercion, claim to
overthrow effective rulers and establish a new government (assertion of the right of
revolution), or claim of people within an entity to be give autonomy.
Recognition
- A method of accepting certain factual situations and endowing them with legal
significance, but this relationship is a complicated one
- In the context of creation of statehood, may be viewed as constitutive or declaratory
- Constitutive: it is only through recognition that a state comes into being under
international law
- Declaratory: once the factual criteria of statehood have been satisfied, a new state
exists as an international person, recognition becoming merely a political and not a
legal act in this context
- The role of recognition, at least in providing strong evidential demonstration of
satisfaction of the relevant criteria, must be acknowledged
- Integral relationship between recognition and criteria for statehood in the sense
that:
o The more overwhelming the scale of international recognition is in any
given situation, the less may be demanded in terms of the objective
demonstration of adherence to the criteria of statehood (four elements)
Extinction of statehood
- may take place thru:
o Merger
o Absorption
o Annexation
o Dismemberment of an existing state
- In general, caution needs to be exercised before the dissolution of a state is
internationally accepted
- It is not usual for governments to disappear, and states to become extinct, as a result
of the illegal use of force or as a consequence of internal upheavals within a state,
but it may occur by CONSENT
The fundamental rights of states
1. Independence
- Or sovereignty
- Capacity of a state to provide for its own well-being and development free from
domination of other states, providing it does not impair or violate their
legitimate rights
- It is no deviation from independence to be subject to the rules of international
law
- Any political or economic dependence that may in reality exist does not affect
the legal independence of the state, unless that state is formally compelled to
submit to the demands of a superior state, in which case dependent status is
concerned.
- “In international law there are no rules, other than such rules as may be
accepted by the state concerned, by treaty or otherwise, whereby the level of
armaments of a sovereign state can be limited, and this principle is valid for all
states without exception.”
- International law permits freedom of action for states, unless there is a rule
constraining this, and therefore it is international law which dictates the scope
and content of the independence of states and not the states themselves
individually and unilaterally
- The notion of independence in international law implies a number of rights and
duties:
o Right of a state to exercise jurisdiction over its territory and
permanent population
o Right to engage upon an act of self-defense in certain situations
o Duty not to intervene in the internal affairs of other sovereign states
 Also covers any assistance or aid to subversive elements
aiming at the violent overthrow of the government of a
state
o A state cannot purport to enforce its laws in the territory of another
state without the consent of the state concernted
2. Equality
- Legal equality of states, equality of legal rights and duties
- States, irrespective of size or power, have the same juridical capacities and
functions, and are likewise entitled to one voted in the United Nations General
Assembly
- 1970 Declaration on Principles of International Law:
o All states enjoy sovereign equality. They have equal rights and duties
and are equal members of the international community,
notwithstanding differences of an economic, social, political or other
nature.
o In particular, sovereign equality includes the following elements:
 (a) States are juridically equal; 

 (b) Each state enjoys the rights inherent in full sovereignty;


 (c) Each state has the duty to respect the personality of
other states; 

 (d) The territorial integrity and political independence of
the state are 
 inviolable; 

 (e)Each state has the right freely to choose and develop its
political, social, economic and cultural systems; 

  (f) Each state has the duty to comply fully and in good faith plane can really only be determined in the light of the constitution of the state
with its 
 international obligations and to live in peace with concerned and state practice.

other states. 
 Montevideo Convention on the Rights and Duties of States (1933)
- notion of equality accepted in the sense of equality of legal personality and Asked in class:
capacity but it is not strictly accurate to talk in terms of equality of states in Qualifications of states:
creating law 1. Permanent population
o major states will always have an influence commensurate with their 2. Permanent and defined territory
statues, if only because their concerns are much wider, their interests 3. Government
much deeper and their power more effective 4. Capacity to enter into relations with other states
- Within GA of UN – doctrine of equality is maintained by the rule of ONE STATE,
ONE VOTE How do you recognize a state?
o But don’t forget the existence of the veto power possessed by the 1. Express (thru formal declarations etc)
USA, Russia, China, France, and UK in the Security Council 2. Tacit (thru entering into treaties/contracts with the emerging state)
3. Peaceful co-existence - But the recognition is irrevocable and unconditional
- Mutual respect for each other’s territorial integrity and sovereignty, mutual
non-aggression, non-interference in each other’s affairs and the principle of Is the Montivideo Convention considered as customary international law? (asked in class)
equality
ARTICLE 1
Protectorates and protected states The state as a person of international law should possess the following qualifications: (a) a
- Protectorate: entity concerned enters into an arrangement with a state under permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into
which, while separate legal personality may be involved, separate statehood is relations with the other states.
not
- Protected state: entity concerned retains its status as a separate state but
ARTICLE 2

enters into a valid treaty relationship with another state affording the latter
The federal state shall constitute a sole person in the eyes of international law.
certain extensive functions possibly internally and externally
o The extent of powers delegated to the protecting state may vary, as
ARTICLE 3
may the manner of the termination of the arrangement
The political existence of the state is independent of recognition by the other states. Even
o Formal sovereignty remains unaffected and the entity in question
before recognition the state has the right to defend its integrity and independence, to provide
retains its status as a state, and may act as such in the various
for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate
international for a, regard being had of course to the terms of the
upon its interests, administer its services, and to define the jurisdiction and competence of its
agreement
courts.
- BUT! The question of which type of arrangement is made and the nature of the
The exercise of these rights has no other limitation than the exercise of the rights of other
status, rights and duties in question – will depend upon the circumstances and
states according to international law.
the terms of the relevant agreement and third-party attitudes
ARTICLE 4
Federal states
States are juridically equal, enjoy the same rights, and have equal capacity in their exercise.
- union of previously autonomous entities. 
 The rights of each one do not depend upon the power which it possesses to assure its exercise,
- There are various forms of federation or confederation, according to the but upon the simple fact of its existence as a person under international law.
relative distribution of power between the central and local organs
- In some states, power lies with the central government, in others with the local
ARTICLE 5

or provincial bodies
The fundamental rights of states are not susceptible of being affected in any manner
- Confederation – implies a more flexible arrangement, leaving a considerable
whatsoever.
degree of authority and competence with the component units to the
ARTICLE 6
detriment of the central organ
The recognition of a state merely signifies that the state which recognizes it accepts the
- The federal state will itself, have personality, but the question of the personality
personality of the other with all the rights and duties determined by international law.
and capability of the component units of the federation on the international
Recognition is unconditional and irrevocable.
ARTICLE 7
The recognition of a state may be express or tacit. The latter results from any act which implies
the intention of recognizing the new state.
ARTICLE 8
No state has the right to intervene in the internal or external affairs of another.
ARTICLE 9
The jurisdiction of states within the limits of national territory applies to all the inhabitants.
Nationals and foreigners are under the same protection of the law and the national authorities
and the foreigners may not claim rights other or more extensive than those of the nationals.
ARTICLE 10
The primary interest of states is the conservation of peace. Differences of any nature which
arise between them should be settled by recognized pacific methods.
ARTICLE 11
The contracting states definitely establish as the rule of their conduct the precise obligation
not to recognize territorial acquisitions or special advantages which have been obtained by
force whether this consists in the employment of arms, in threatening diplomatic
representations, or in any other effective coercive measure. The territory of a state is inviolable
and may not be the object of military occupation nor of other measures of force imposed by
another state directly or indirectly or for any motive whatever even temporarily.
ARTICLE 12
The present Convention shall not affect obligations previously entered into by the High
Contracting Parties by virtue of international agreements.
ARTICLE 13
The present Convention shall be ratified by the High Contracting Parties in conformity with
their respective constitutional procedures. The Minister of Foreign Affairs of the Republic of
Uruguay shall transmit authentic certified copies to the governments for the aforementioned
purpose of ratification. The instrument of ratification shall be deposited in the archives of the
Pan American Union in Washington, which shall notify the signatory governments of said
deposit. Such notification shall be considered as an exchange of ratifications.
ARTICLE 14
The present Convention will enter into force between the High Contracting Parties in the order
in which they deposit their respective ratifications.
ARTICLE 15
The present Convention shall remain in force indefinitely but may be denounced by means of
one year's notice given to the Pan American Union, which shall transmit it to the other
signatory governments. After the expiration of this period the Convention shall cease in its
effects as regards the party which denounces but shall remain in effect for the remaining High
Contracting Parties.
ARTICLE 16
The present Convention shall be open for the adherence and accession of the States which are
not signatories. The corresponding instruments shall be deposited in the archives of the Pan
American Union which shall communicate them to the other High Contracting Parties.
IN WITNESS WHEREOF, the following Plenipotentiaries have signed this Convention in Spanish,
English, Portuguese and French and hereunto affix their respective seals in the city of
Montevideo, Republic of Uruguay, this 26th day of December, 1933.
Island of Palmas Case, 2 RIAA, pp. 829, 838 (1928)
Whether the Island of Palmas is part of the sovereignty of the US or Netherlands
Between discovery and indirect control, the arbitrator decided that the Netherlands had more
control and had sovereignty over the island.
From Yori reviewer digest:
Island of Palmas Case
Facts:
 Palmas (or Miangas), is an island having a population of about 750 and was of little
strategic or economic value. It lies between Mindanao and Nanusa in the Netherlands
Indies. It is within the boundaries of the Philippines as defined by Spain and thus ceded
to the US.
 Later, Leonard Wood, an American General, visited Palmas and discovered
that Netherlands also claimed sovereignty over the island.
 The US and Netherlands
submitted the dispute to arbitration before Max Huber, a Swiss Jurist.
 US claim:
US bases their title on cession by Spain, who obtained title through discovery. they claim that
the existence of their sovereignty over the island is confirmed by the Treaty of Munster
and Treaty of Versailles. They also claim that, by virtue of the principle of contiguity, since
Palmas forms a geographical part of the Philippines, whoever has sovereignty over the
Philippines has sovereignty over Palmas.
Netherlands claim:
 Palmas formed part of the Native States of the Island of Sangi which were
connected with the Netherlands by contracts of suzerainty which conferred upon the
suzerain such powers as would justify considering the vassal state as part of its
territory.
 Netherlands, by virtue of such suzerain power, exercised acts characteristic of
state authority over Palmas in different period of time starting from 1700s.
Issue:
 W/N Palmas belonged to US territory or to Netherlands territory - Netherlands
Held:
 Netherlands
First, sovereignty, in relation between states, signifies independence over a territory which
is the right to exercise therein, to the exclusion of other States, the functions of a State.
The continuous and peaceful display (peaceful in relation to other states) of territorial
sovereignty is as good as title. Territorial sovereignty involves the exclusive right to
display activities of a state. This right has a corollary duty:
obligation to protect within the territory the rights of other states together with the rights
which each state may claim for its nationals in foreign territory
Territorial sovereignty cannot be limited to simply excluding
the activities of other states
 Second, although the Treaty of Paris was communicated to the
Netherlands who made no reservation thereto, any sovereignty that Netherlands had
over the island cannot be affected by their mere silence
 Third, discovery alone by Spain,
 i.e., the mere act of seeing the land without any act of taking possession thereof does
not give the effect of acquiring sovereignty over the land.
Assuming arguendo that Spain obtained an inchoate title thereto, such inchoate title cannot
prevail over the continuous and peaceful display of authority by another state.
Lastly, there is no positive law providing that islands outside territorial water should belong to
a state by virtue that it form the terra firma (nearest island of considerable size)
Form Darvin Utopia digest (hehe hi Jas)
“discovery / mere inchoate right / actual & peaceful display of sovereignty”
The US and the Netherlands dispute over title to the Island of Palmas – the US alleging that it
was ceded to it by Spain by virtue of the Treaty of Paris. The US argues that it was Spain
that “discovered” the Island, and also invokes the principle of contiguity – that islands
situated outside territorial waters should be considered part of the nearest continent or
island of considerable size. These contentions cannot be sustained. Spain can only
transfer such rights that it had in the first place. Assuming that Spain “discovered” the
island, discovery only confers an inchoate title w/c must be perfected by effective
occupation. It cannot prevail over the peaceful and continuous display of state authority
by another state over the said Island. The principle of contiguity, on the other hand, has
no basis in IL.
Netherlands, on the other hand, has been in continuous display of authority since the 1700’s
through progressive evolution and intensification of control; and Spain never contested
it. The conditions for the acquisition of sovereignty on the part of the Netherlands are
therefore satisfied.
The forms of acquisition of title are:
. occupation coupled w/ effectiveness 
 political consequences.
. conquest (allowed before) 
 o The Court finds that, while the request put to it concerns one aspect of a
. cession 
 situation which the Security Council has characterized as a threat to
. accretion 

Mere title is insufficient; there must be the element of actual display of state functions.
Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo, ICJ (22
July 2010) International court of Justice
Main issue: Is the unilateral declaration of independence by the Provisional Institutions of Self-
Government of Kosovo in accordance with international law?
Factual background:
- The Court observes that the situation in Kosovo had been the subject of action by
the Security Council, in the exercise of its responsibility for the maintenance of
international peace and security, for more than ten years prior to the present
request for an advisory opinion.
- General Assembly has also adopted resolutions relating to the situation in Kosovo.
Prior to the adoption by the Security Council of resolution 1244 (1999), the General
Assembly adopted five resolutions on the situation of human rights in Kosovo.
I. JURISDICTION AND DISCRETION
A. Jurisdiction (Whether the ICJ has jurisdiction to give the advisory opinion requested by the
General Assembly[GA])
- Power to give an advisory opinion from ICJ Statute, provides that it may give an
advisory opinion on any legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the UN to make such request
- The GA is authorized to request an advisory
- The question put by the General Assembly asks whether the declaration of
independence to which it refers is “in accordance with international law”.
B. Discretion
- The Court then notes that “[t]he fact that [it] has jurisdiction does not mean,
however, that it is obliged to exercise it”
- Court has a discretionary power to decline to give an advisory opinion even if the
conditions of jurisdiction are met.
- It notes that the advisory jurisdiction is not a form of judicial recourse for States but
the means by which the General Assembly and the Security Council, as well as other
organs of the United Nations and bodies specifically empowered to do so by the
General Assembly Charter, may obtain the Court’s opinion in order to assist them in
their activities. The Court’s opinion is given not to States but to the organ which has
requested it.
- The Court recalls that it has consistently made clear that it is for the organ which
requests the opinion, and not for the Court, to determine whether it needs the
opinion for the proper performance of its functions.
- Nor does the Court consider that it should refuse to respond to the General
Assembly’s request on the basis of suggestions that its opinion might lead to adverse
- On whether it is ok/proper for the GA to request for the advisory opinion
international peace and security and which continues to feature on the
agenda of the Council in that capacity, that does not mean that the General
Assembly has no legitimate interest in the question. Articles 10 and 11 of
the Charter confer upon the General Assembly a very broad power to
discuss matters within the scope of the activities of the United Nations,
including questions relating to international peace and security. That
power is not limited by the responsibility for the maintenance of
international peace and security which is conferred upon the Security
Council
o The fact that the situation in Kosovo is before the Security Council and the
Council has exercised its Chapter VII powers in respect of that situation
does not preclude the General Assembly from discussing any aspect of that
situation, including the declaration of independence.
o The Court considers that the fact that a matter falls within the primary
responsibility of the Security Council for situations which may affect the
maintenance of international peace and security and that the Council has
been exercising its powers in that respect does not preclude the General
Assembly from discussing that situation or, within the limits set by Article
12, making recommendations with regard thereto.
- The Court recalls that the purpose of the advisory jurisdiction is to enable organs of
the United Nations and other authorized bodies to obtain opinions from the Court
 which will assist them in the future exercise of their functions. The Court cannot
determine what steps the General Assembly may wish to take after receiving the
Court’s opinion or what effect that opinion may have in relation to those steps. As
has been demonstrated, the General Assembly is entitled to discuss the declaration
of independence and, within the limits considered above, to make recommendations
in respect of that or other aspects of the situation in Kosovo without trespassing on
the powers of the Security Council.
- The Court concludes from the foregoing that “there are no compelling reasons for it
to decline to exercise its jurisdiction in respect of the . . . request” before it.
II. SCOPE AND MEANING OF THE QUESTION
- The GA asks for the Court’s opinion on whether or not the declaration of
independence is in accordance with international law and that the answer to that
question turns on whether or not the applicable international law prohibited the
declaration of independence.
III. FACTUAL BACKGROUND
- The court indicated that the declaration of independence of [Kosovo adopted on] 17
February 2008 must be considered within the factual context which led to its
adoption”. It briefly describes the relevant characteristics of the framework put in
place by the Security Council to ensure the interim administration of Kosovo, namely,
Security Council resolution 1244 (1999) and the regulations promulgated thereunder
by the United Nations Mission in Kosovo (UNMIK).
IV. THE QUESTION: WHETHER THE DECLARATION IS IN ACCORDANCE WITH INTERNATIONAL
LAW
A. General International Law
- State practice during this period points clearly to the conclusion that international
law contained no prohibition of declarations of independence
- The ICJ observes that while the Security Council previously has condemned particular
declarations of independence, those were connected with violations of jus cogens
law. But in the context of Kosovo, the Security Council has never taken this position.
- No general prohibition against unilateral declarations of independence may be
inferred from the practice of the Security Council.
- Accordingly, it concludes that the declaration of independence of 17 February 2008
did not violate general international law.
B. Security Council resolution 1244 (1999) and the UNMIK Constitutional Framework created
thereunder
- Security Council resolution 1244 (1999) and the Constitutional Framework form part
of the international law which is to be considered in replying to the question posed
by the General Assembly in its request for the advisory opinion.
1. Interpretation of Security Council resolution 1244 (1999)
- Security Council resolutions are issued by a single, collective body and are drafted
through a very different process than that used for the conclusion of a treaty; they
are the product of a voting process as provided for in Article 27 of the Charter, and
the final text of such resolutions represents the view of the Security Council as a
body. Moreover, Security Council resolutions can be binding on all Member States
- x First, resolution1244(1999) establishes an international civil and security presence
in Kosovo with full civil and political authority and sole responsibility for the
governance of Kosovo.
- x Secondly, the solution embodied in resolution 1244 (1999), namely, the
implementation of an interim international territorial administration, was designed
for humanitarian purposes: to provide a means for the stabilization of Kosovo and
for the re-establishment of a basic public order in an area beset by crisis.
o x By placing an emphasis on these “four pillars”, namely, interim civil
administration, humanitarian affairs, institution building and
reconstruction, and by assigning responsibility for these core components
to different international organizations and agencies,
resolution1244(1999) was clearly intended to bring about stabilization and
reconstruction. The interim administration in Kosovo was designed to
suspend temporarily Serbia’s exercise of its authority flowing from its
continuing sovereignty over the territory of Kosovo.
- x Thirdly, resolution 1244 (1999) clearly establishes an interim régime; it cannot be
understood as putting in place a permanent institutional framework in the territory
of Kosovo.
- x The Court thus concludes that the object and purpose of resolution 1244 (1999)
was to establish a temporary, exceptional legal régime which, save to the extent that
it expressly preserved it, superseded the Serbian legal order and which aimed at the
stabilization of Kosovo. The Court notes that it was designed to do so on an interim
basis.
V. GENERAL CONCLUSION
The Court recalls its conclusions reached earlier, namely, “that the adoption of the declaration
of independence of 17 February 2008 did not violate general international law, Security Council
resolution 1244 (1999) or the Constitutional Framework”. Finally, it concludes that
“[c]onsequently the adoption of that declaration did not violate any applicable rule of
international law.”
Province of North Cotabato v. GRP Peace Panel, G.R. No. 183591, October 14, 2008
G.R. No. 183591 October 14 2008
Province of North Cotabato vs Government of the Republic of the Philippines
FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic
Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement of the
Ancestral Domain Aspect of the GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala
Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MA-AD
and to prohibit the slated signing of the MOA-AD and the holding of public consultation
thereon. They also pray that the MOA-AD be declared unconstitutional. The Court issued
a TRO enjoining the GRP from signing the same.
ISSUES:
3Whether or not the signing of the MOA, the Government of the Republic of the Philippines
would be binding itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF
1997), particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)
RULINGS:
3.
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not recognized by law;
Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely approximating
it.
The concept of association is not recognized under the present Constitution.
No province, city, or municipality, not even the ARMM, is recognized under our laws as having
an “associative” relationship with the national government. Indeed, the concept implies
powers that go beyond anything ever granted by the Constitution to any local or regional
government. It also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence.
The BJE is a far more powerful entity than the autonomous region recognized in the
Constitution. It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different from that of the
ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down
in the Montevideo Convention, namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it – which has betrayed itself by its use of
the concept of association – runs counter to the national sovereignty and territorial
integrity of the Republic.
The defining concept underlying the relationship between the national government and the
BJE being itself contrary to the present Constitution, it is not surprising that many of the
specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict
with the Constitution and the laws. The BJE is more of a state than an autonomous region.
But even assuming that it is covered by the term “autonomous region” in the
constitutional provision just quoted, the MOA-AD would still be in conflict with it.
b) to revise or amend the Constitution and existing laws to conform to the MOA:
The MOA-AD provides that “any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal framework,” implying an
amendment of the Constitution to accommodate the MOA-AD. This stipulation, in
effect, guaranteed to the MILF the amendment of the Constitution .
It will be observed that the President has authority, as stated in her oath of office, only to
preserve and defend the Constitution. Such presidential power does not, however, extend
to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and revision, her
mere recommendation need not be construed as an unconstitutional act.
The “suspensive clause” in the MOA-AD viewed in light of the above-discussed standards.
Given the limited nature of the President’s authority to propose constitutional amendments,
she cannot guarantee to any third party that the required amendments will eventually
be put in place, nor even be submitted to a plebiscite. The most she could do is submit
these proposals as recommendations either to Congress or the people, in whom
constituent powers are vested.
CONCLUSION:
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion
when he failed to carry out the pertinent consultation process, as mandated by E.O. No.
3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise
thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship
envisioned between the GRP and the BJE, are unconstitutional, for the concept
presupposes that the associated entity is a state and implies that the same is on its way
to independence.
ADDITIONAL NOTES FROM YORI REVIEWER:
MOA-AD between GRP and MILF is not a treaty
 While there were States and international
organizations involved, in the negotiation and projected signing of the MOA-AD, they
participated merely as witnesses or, in the case of Malaysia, as facilitator. Mere fact that
the peace settlement is signed by representatives of states and international
organisations does not mean that the agreement is internationalized so as to create
obligations in international law.
 Since the commitments in the MOA-AD were not
addressed to States, not to give legal effect to such commitments would not be
detrimental to the security of international intercourse - to the trust and confidence
 essential in the relations among States.
 BUT while the MOA-AD would not amount to
an international agreement, respondents’ act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally defective.
Class discussion:
What about nomadic people? (i.e. an island which is inhabited only half the year, can this island
constitute itself as a state?)
Defined and permanent territory: Can you make a state out of manmade(plastic) structures?
Must it be natural? What form of territory is needed to satisfy this category?
o Technically yes you can create your own territory but if creating the
territory will violate international law, this will not satisfy the requirement.
What about island nations that are about to be submerged due to rising waters, that will lose
their territory imminently?
- Still an emerging topic, no definite answer yet, but is a problem area
What about the requirement of government and capacity to enter into relations with other
states?
What is it important to discuss about states, what they are and what are not states?
- Because the basic person in IL is the state; IL is created by States
- Rights and obligations adhere to the state
- The creation of customs is very state centric
- Violation of international norms is dependent on this factor
- *North C/Sentinal Island – has a primitive community never had contact with the
outside world ever
o insofar as India is concerned, it has international jurisdiction over the
island but it does not control or administer or enforce its laws in the island
Two theories on the recognition of statehood
1. declaratory theory
a. recognition of a new State is a political act, which is, in principle,
independent of the existence of the new State
 as a subject of
international law.
b. statehood is a legal status independent of recognition
c. Europe etc adhere to this theory
2. constitutive theory
a. theory that the rights and duties pertaining
 to statehood derive from
recognition by other States
b. recognition by other states bestows the state with statehood
c. US adheres to this theory
It’s the CAPACITY only to enter, not actually relations with other states – so does this mean
you have to be recognized by other states? – to enter into relations yes, BUT 
- You can still be a state in isolation, therefore, no longer requiring recognition
- SO WHAT THEORY IS THE MORE SOUND THEORY, CONSTITUTIVE OR DECLARATORY?
(MT QUESTION)
ADDITIONAL STATEHOOD NOTES FROM YORI REVIEWER
Subjects of international law
Subjects of international law are entities endowed with rights and obligations in the
international order and possessing the capacity to take certain kinds of action on the
international plane. They are those who have international personality.
 Objects of
international law are those who indirectly have rights under or are beneficiaries of
international law through subjects of international law.
 The subjects of law are not
necessarily identical in their nature or in the extent of their rights, and their nature depends
upon the needs of the community.
States: Commencement of their existence
Under the Montevideo Convention of 1933, a state as a person of international law should
possess:
1. a permanent population
 2. defined territory
 3. government
 4. capacity to enter into
relations with other States
Characteristics of Statehood
Article 1 of the Convention on Rights and Duties of States (1933 Montevideo) provides for
the qualifications of a State:
. permanent population - community of persons sufficient in number and capable of
maintaining the permanent existence of the community and held together by a
common bond of law 

. defined territory - even if boundaries of the state have not yet been settled, if one
or more of its boundaries are disputed, or if some its territories are claimed by
another state, the entity does not cease to be a state 

. government - that institution or aggregate of institutions by which an independent
society makes and carries out those rules of action which are necessary to enable
men to live in a social state, or which are imposed upon the people forming that
society by those who possess power or authority of prescribing them 

. capacity to enter into relations with other states - means sovereignty which is
dependent on recognition. 

. Self-determination — the right to freely determine their political status and freely
pursue their economic, social and cultural development.
 Self-determination has 2
levels: 

1. Establishment of new states
 claim by a group within an established state to break away
and form a new entity 

2. Does not establish a new state
 claims to be free from external coercion, claim to
overthrow effective rulers and establish a new government (assertion of the right of
revolution), or claim of people within an entity to be give autonomy. 

Recognition of states
- when State A recognises State B, it means that both recognize the capacity of each
other to exercise all the rights belonging to statehood. It is an acknowledgment of
the capacity of an entity to exercise rights belonging to statehood.
Can an entity claim to be a state before it is recognized by other states? 2 theories:
 1. Declaratory theory
 recognition is merely declaratory of the existence of the
state and that its being a state depends upon its possession of the required elements and not
upon recognition
2. Constitutive theory
 recognition constitutes a state. it is what makes a state a
state and confers legal personality on the entity. This recognizes that States may decide to
recognize an entity as a state even if it does not have all the elements of state as defined
under the Montevideo Convention

Recognition of governments
- It means that the act of acknowledging the capacity of an entity to exercise powers
of government of a state.

- If a change in government is brought about through ordinary constitutional
procedure, recognition by others comes as a matter of course.
- The problem is acute when a new government within a state comes into existence
through extra-constitutional means.
-
Consequences of Recognition or Non-recognition
- A government, once recognized, gains increased prestige and stability. The doors of
funding agencies are opened, loans are facilitated, access to foreign court and
immunity from suit are gained.
- Non-recognition bars an entity from all these benefits. Recognition is terminated
when another regime is recognized.