The following are digested cases in Public International Law for your perusal Atty. Ouano.
Pimentel vs. Executive Secretary
This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to require the Executive Department to transmit the Rome Statute which established the International Criminal Court for the Senate’s concurrence in accordance with Sec 21, Art VII of the 1987 Constitution.
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. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence.
Whether or not the executive department has a ministerial duty to transmit the Rome Statute (or any treaty) to the Senate for concurrence.
The petition was dismissed. The Supreme Court ruled that the the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. 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. 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.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternate, 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, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is 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.
The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. 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 state’s 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 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.
G. R. No. 167919
February 14, 2007
Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante Soriquez. This resolution recommended the award to China Road & Bridge Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine Government pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective governments.
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a kind of a treaty.
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine Government is an executive 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.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes all are refer to international instruments binding at international law.
Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.
What the petitioners wanted was that Foreign funded projects also undergo the procurement process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for foreign funded projects (IRR-B) of the procurement law
If we recall the decision of the Abaya vs Ebdane was used by the DOJ when the
DOTC Secretary was asking for an opinion from the former, during the ZTE controversy.
as ruled by the Supreme Court in Abaya v. Ebdane, an
exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international
instrument binding at international law,
The second issue involves an examination of the coverage of
Republic Act No. 9184, otherwise known as the “Government
Procurement Reform Act”. Section 4 of the said Act provides that it shall
… the Procurement of infrastructure Projects, Goods and
Consulting Services, regardless of source of funds, whether local
or foreign, by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned
and/or -controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any
treaty or international or executive agreement affecting the
subject matter of this Act to which the Philippine government is a
signatory shall be observed.
G. R. No. 175608
June 8, 2007
DEPARTMENT O BUDGET AND MANAGEMENT PROCUREMENT SERVICE (DBM-PS) and the inter-Agency Bids and Awards Committee (IABAC), petetioners VS. KOLONWEL TRADING, respondent.
Whether or not the foreign loan agreements (Loan No. 7118-PH) with international financial institutions, partake of an executive or international agreement and shall govern the procurement of goods necessary to implement the project.
This issue has been affirmatively answered in the case of Abaya. In that case, the court declared that the RP-JBIC loan agreement was to be of governing application over the CP I project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement.
Under the fundamental international law principle of pacta sunt servanda, the RP, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118-PH. Applying this postulate, the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question.
Lim vs. GMA
GR 151445, 11 April 2002
Facts: On 1 February 2002, petitioners Arturo D. Lim and Paulino Ersando filed this petition for certiorari and prohibition attacking the constitutionality of the so-called “Balikatan 01-1.” The “Balikatan” exercises are the largest combined training operations involving Filipino and American troops. It is pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the US in 1951 and an effect of the Visiting Forces Agreement between the two nations of 1999.
Issues: Whether “Balikatan 02-1” is covered by the Visiting Forces Agreement (VFA).
Whether the VFA authorized American soldiers to engage in combat operations in Philippine territory.
Held: In resolving the first issue, it is necessary to refer to the VFA itself. However, not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage on an impermanent basis in “activities”, the exact meaning of which was left undefined. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must “abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity.”
The Supreme Court, after studied reflection of Articles 31 and 32 of Section 3 of the Vienna Convention on the Law of Treaties, concluded that the ambiguity sorrounding the meaning of the word “activities” arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. Under these auspices, the VFA if given legitimacy to the current Balikatan exercise. It is only logical to assume that “Balikatan 02-1” a mutual anti-terrorism advising, assisting and training exercise,” falls under the umbrella of sanctioned or allowable activities in the context of the agreement. In connection with the second issue, both the history and intent of the MDT and the VFA support conclusion that combat-related activities, as opposed to combat itself are indeed authorized.
More so, the Terms of Reference are explicit enough. Paragraph 8 of Section I stipulates that US exercise participants may not engage in combat “except in self-defense.” It is the opinion of the Court that neither the MDT nor the DFA allow foreign troops to engage in an offensive war in Philippine territory bearing in mind the salutory prescription stated in the Charter of the United Nations.
In the same manner, both the MDT and the VFA, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. Although the Constitution present a conflict between the fundamental law and our obligations from international agreements, it however resolves it in section 2 of Article VIII of the Constitution.
The foregoing premises leave us no doubt that US forces are prohibited from engaging in an offensive war on the Philippine territory.
G. R. No. 138570
October 10, 2000
Bayan vs Zamora
The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?
Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate.
The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.