The Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951, To further strengthen their defense and security relationship.
Under the treaty, the parties agreed to respond to any external armed attack on
their territory, armed forces, public vessels, and aircraft.
On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty
of Friendship, Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines.
On July 18, 1997 RP and US exchanged notes and discussed, among other things,
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.
Petitioner contends, 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.
Issue:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article
XVIII of the Constitution?
Ruling:
Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops or facilities should apply in the instant case.
The 1987 Philippine Constitution contains two provisions requiring the concurrence
of the Senate on treaties or international agreements. Sec. 21 Art. VII, which
respondent invokes, reads: No treaty or international agreement shall be valid and
effective unless concurred in by at least 2/3 of all the Members of the Senate. Sec.
25 Art. XVIII provides : After the expiration in 1991 of the Agreement between the
RP and the US concerning Military Bases, foreign military bases, troops or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in and
when the Congress so requires, ratified by a majority of votes cast by the people in
a national referendum held for that purpose, and recognized as a treaty by the
Senate by the other contracting state.
The first cited provision applies to any form of treaties and international agreements
in general with a wide variety of subject matter. All treaties and international
agreements entered into by the Philippines, regardless of subject matter, coverage
or particular designation requires the concurrence of the Senate to be valid and
effective.
In contrast, the second cited provision applies to treaties which involve presence of
foreign military bases, troops and facilities in the Philippines. Both constitutional
provisions share some common ground. The fact that the President referred the VFA
to the Senate under Sec. 21 Art. VII, and that Senate extended its concurrence
under the same provision is immaterial.
Bayan vs Zamora
Facts:
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 twothirds of all the members of the senate.
ISSUE:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of
the Constitution?
HELD:
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.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this
petition for certiorari and prohibition, attacking the constitutionality of the joint
exercise.
Issue:
Ruling:
To resolve this, it is necessary to refer to the VFA itself. 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 Vienna Convention on the Law of Treaties, Articles 31 and 32 contains provisos
governing interpretations of international agreements. It clearly provides that the
cardinal rule of interpretation must involve an examination of the text, which is
presumed to verbalize the parties intentions. The Convention likewise dictates what
may be used as aids to deduce the meaning of terms, which it refers to as the
context of the treaty, as well as other elements may be taken into account
alongside the aforesaid context.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. 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.
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 Senates 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.[5] 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.
Issue:
Whether or not the executive department has a ministerial duty to transmit the
Rome Statute (or any treaty) to the Senate for concurrence.
Ruling:
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 countrys sole representative with foreign nations. As the chief architect
of foreign policy, the President acts as the countrys 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:
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 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, 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.
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 Government of Japan and the Government of the Philippines, through their
respective representatives, namely, Mr. Yoshihisa Ara, Ambassador Extraordinary
and Plenipotentiary of Japan to the Republic of the Philippines, and then Secretary of
The assailed resolution recommended the award to private respondent 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 (Codon)-Virac-Jct. Bago-Viga road, with the length of 79.818
kilometers, in the island province of Catanduanes.The DPWH caused the publication
of the Invitation to Prequalify and to Bid for the implementation of the CP I project,
in two leading national newspapers, namely, the Manila Times and Manila Standard
on November 22 and 29, and December 5, 2002.
A total of twenty-three (23) foreign and local contractors responded to the invitation
by submitting their accomplished prequalification documents on January 23, 2003.
In accordance with the established prequalification criteria, eight contractors were
evaluated or considered eligible to bid as concurred by the JBIC. Prior to the opening
of the respective bid proposals, it was announced that the Approved Budget for the
Contract (ABC) was in the amount of P738,710,563.67.
The bid goes to private respondent China Road & Bridge Corporation was corrected
from the original P993,183,904.98 (with variance of 34.45% from the ABC) to
P952,564,821.71 (with variance of 28.95% from the ABC) based on their letter
clarification dated April 21, 2004.
The petitioners anchor the instant petition on the contention that the award of the
contract to private respondent China Road & Bridge Corporation violates RA 9184,
particularly Section 31 thereof which reads:
SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the
Bid prices. Bid prices that exceed this ceiling shall be disqualified outright from
further participating in the bidding. There shall be no lower limit to the amount of
the award.
The respondents however contend that foreign loan agreements, including Loan
Agreement No. PH-P204, as executive agreements and, as such, should be observed
pursuant to the fundamental principle in international law of pacta sunt servanda.
The Constitution, the public respondents emphasize, recognizes the enforceability of
executive agreements in the same way that it recognizes generally accepted
principles of international law as forming part of the law of the land.34 This
recognition allegedly buttresses the binding effect of executive agreements to which
the Philippine Government is a signatory. It is pointed out by the public respondents
that executive agreements are essentially contracts governing the rights and
obligations of the parties. A contract, being the law between the parties, must be
faithfully adhered to by them. Guided by the fundamental rule of pacta sunt
servanda, the Philippine Government bound itself to perform in good faith its duties
and obligations under Loan Agreement.
Issue :
Ruling:
The fundamental principle of international law of pacta sunt servanda, which is, in
fact, embodied in Section 4 of RA 9184 as it provides that [a]ny treaty or
international or executive agreement affecting the subject matter of this Act to
which the Philippine government is a signatory shall be observed, the DPWH, as
the executing agency of the projects financed by Loan Agreement No. PH-P204,
rightfully awarded the contract for the implementation of civil works for the CP I
project to private respondent China Road & Bridge Corporation.
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 apply to:
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.
Pharmaceutical and Health Care Association of the Philippines vs. Duque CASE
DIGEST
Held: YES
under Article 23, recommendations of the WHA do not come into force for
members,in the same way that conventions or agreements under Article 19 and
regulations under Article 21 come into force. Article 23 of the WHO Constitution
reads:
Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization
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
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either
Except Sections 4 (f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code, constituting
reasonable regulation of an industry which affects public health and welfare and,
as such, the rest of the RIRR do not constitute illegal restraint of trade nor are
they violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4 (f), 11 and 46
of Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL
and VOID for being ultra vires. The Department of Health and respondents are
PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar
as the rest of the provisions of Administrative Order No. 2006-0012 is concerned.
|||
(Pharmaceutical and Health Care Ass'n v. Duque III, G.R. No. 173034, October
09, 2007)
FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by
President Corazon Aquino by virtue of the legislative powers granted to the
president under the Freedom Constitution. The Milk Code states that the law seeks
to give effect to Article 112 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981.
From 1982 to 2006, the WHA adopted several Resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it should be
ensured that nutrition and health claims are not permitted for breastmilk
substitutes. the Philippines ratified the International Convention on the Rights of the
Child. Article 24 of said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are informed of the advantages
of breastfeeding. the DOH issued RIRR which was to take effect on July 7, 2006. a
petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Revised
Implementing Rules and Regulations of The Milk Code, assailing that the RIRR was
going beyond the provisions of the Milk Code, thereby amending and expanding the
coverage of said law.
ISSUE: Whether or not respondents officers of the DOH acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in promulgating the
RIRR
RULING:
The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and
VOID for being ultra vires. The Department of Health and respondents are
PROHIBITED from implementing said provisions. The international instruments
pointed out by the respondents, UNRC, ICESR, CEDAW, are deemed part of the law
of the land and therefore the DOH may implement them through the RIRR.
Customary international law is deemed incorporated into our domestic system.
Custom or customary international law means a general and consistent practice of
states followed by them from a sense of legal obligation (opinio juris). Under the
1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation. The transformation method requires that
an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. Generally accepted principles of international
law refers to norms of general or customary international law which are binding on
all states. The Milk Code is a verbatim reproduction of the (ICMBS), but it did not
ISSUE: Whether or not the GRP violated the Constitutional and statutory provisions
on public consultation and the right to information when they negotiated and
initiated the MOA-AD and Whether or not the MOA-AD brought by the GRP and MILF
is constitutional
REASONING: The GRP is required by this law to carry out public consultations on
both national and local levels to build consensus for peace agenda and process and
the mobilization and facilitation of peoples participation in the peace process.
Sec. 7. The right of people on matters of public concern shall be recognized, access
to official records and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development shall be afforded the citizen, subject to such limitations as may
be provided by law.
Article II
Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.
LGC (1991), require all national agencies and officers to conduct periodic
consultations. No project or program be implemented unless such consultations are
complied with and approval mus be obtained.
Sec. 21. 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.
Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are
the province, cities, municipalities and barangays. There shall be autonomous
regions on Muslim Mindanao and the Cordillera as hereinafter provided.
Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities and geographical areas
sharing common and distinctive historical and cultural heritage, economic and
social structures and other relevant characteristics within the framework of this
constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.
Section 16. The President shall exercise general supervision over autonomous
regions to ensure that laws are faithfully executed.
Sec. 18. The creation of autonomous region shall be effective when approved by a
majority of the votes cast by the constituents units in a plebiscite called for the
purpose, provided that only provinces, cities and geographic areas voting
favourably in such plebiscite shall be included in the autonomous region.
Sec. 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
1. Administrative organization;
2. Creation of sources of revenues;
3. Ancestral domain and natural resources;
4. Personal, family, and property relations;
5. Regional urban and rural planning development;
6. Economic, social, and tourism development;
7. Educational policies;
8. Preservation and development of the cultural heritage; and
9. Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.
Section 4. Any amendment to, or revision of, this Constitution under Section 1
hereof shall be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.
MOA-AD states that all provisions thereof which cannot be reconciled with the
present constitution and laws shall come into force upon signing of a
comprehensive compact and upon effecting the necessary changes to the legal
framework. The presidents authority is limited to proposing 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.
MOA-AD itself presents the need to amend therein.
February 1, 2011
BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and
Rep. LIZA L. MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his
capacity as Secretary of Foreign Affairs, Respondents.
VELASCO, JR., J.:
Facts:
Issue: Whether or not the RP-US Non Surrender Agreement is void ab initio for
contracting obligations that are either immoral or otherwise at variance with
universally recognized principles of international law.
Held: No. Petitioner urges that theAgreement be struck down as void ab initio for
imposing immoral obligations and/or being at variance with allegedly universally
recognized principles of international law. The immoral aspect proceedsfrom the
fact that the Agreement, as petitioner would put it, leaves criminals immune from
responsibility for unimaginable atrocities that deeply shock the conscience of
humanity; it precludes our country from delivering an American criminal to the ICC.
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, is an assertion by the
Philippines of its desire to try and punish crimes under its national law. The
agreement is a recognition of the primacy and competence of the countrys judiciary
to try offenses under its national criminal laws and dispense justice fairly and
judiciously. Petitioner, labors under the erroneous impression that the Agreement
would allow Filipinos and Americans committing high crimes of international concern
to escape criminal trial and punishment. This is manifestly incorrect. Persons who
may have committed acts penalized under the Rome Statute can be prosecuted and
punished in the Philippines or in the US; or with the consent of the RP or the US,
before the ICC, assuming that all the formalities necessary to bind both countries to
the Rome Statute have been met.
prior statutory enactment. Petitioner, in this case, argues that the Non-Surrender
Agreement between the Philippines and the US is of dubious validity, partaking as it
does of the nature of a treaty; hence, it must be duly concurred in by the Senate.
Petitioner relies on the case, Commissioner of Customs v. Eastern Sea Trading, in
which the Court stated: international agreements involving political issues or
changes of national policy and those involving international arrangements of a
permanent character usually take the form of treaties; while those embodying
adjustments of detail carrying out well established national policies and traditions
and those involving arrangements of a more or less temporary nature take the form
of executive agreements. According to petitioner, the subject of the Agreement
does not fall under any of the subject-categories that are enumerated in the Eastern
Sea Trading case that may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and settlement of
claims. The Supreme Court held, however, that the categorization of subject
matters that may be covered by international agreements mentioned in Eastern Sea
Trading is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the
form of agreement is the parties intent and desire to craft an international
agreement in the form they so wish to further their respective interests. The matter
of form takes a back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt servanda principle.
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.
Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive Order No. 292, otherwise known as
the Administrative Code.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to
Dismiss and setting the case for summary hearing to determine whether the
injunctive reliefs prayed for should be issued. CNMEG then filed a Motion for
Reconsideration, which was denied by the trial court in an Order dated 10 March
2008. Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for the
Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008.
the appellate court dismissed the Petition for Certiorari. Subsequently, CNMEG filed
a Motion for Reconsideration, which was denied by the CA in a Resolution dated 5
December 2008.
Petitioners Argument: Petitioner claims that the EXIM Bank extended financial
assistance to Northrail because the bank was mandated by the Chinese government,
and not because of any motivation to do business in the Philippines, it is clear from
the foregoing provisions that the Northrail Project was a purely commercial
transaction.
Respondents Argument: respondents alleged that the Contract Agreement and
the Loan Agreement were void for being contrary to (a) the Constitution; (b)
Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government
Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive Order No. 292, otherwise known as
the Administrative Code.
Issues: Whether or not petitioner CNMEG is an agent of the sovereign Peoples
Republic of China.
Whether or not the Northrail contracts are products of an executive agreement
between two sovereign states.
Ruling:
The instant Petition is DENIED. Petitioner China National Machinery &
Equipment Corp. (Group) is not entitled to immunity from suit, and the Contract
Agreement is not an executive agreement. CNMEGs prayer for the issuance of a TRO
and/or Writ of Preliminary Injunction is DENIED for being moot and academic.
The 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. (Emphasis supplied; citations omitted.)
As it stands now, the application of the doctrine of immunity from suit has been
restricted to sovereign or governmental activities (jure imperii). The mantle of state
immunity cannot be extended to commercial, private and proprietary acts (jure
gestionis).
Facts
On April 15, 1994, the Philippine Government represented by its Secretary of the
Department of Trade and Industry signed the Final Act binding the Philippine
Government to submit to its respective competent authorities the WTO (World Trade
Organization) Agreements to seek approval for such. On December 14, 1994,
Resolution No. 97 was adopted by the Philippine Senate to ratify the WTO
Agreement.
national economy, and Sections 10 and 12, Article XII, providing for the Filipino
first policy.
Issue
Held:
The Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the
constitution mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with
the rest of the world on the bases of equality and reciprocity and limits protection of
Filipino interests only against foreign competition and trade practices that are
unfair. In other words, the Constitution did not intend to pursue an isolationalist
policy. Furthermore, the constitutional policy of a self-reliant and independent
national economy does not necessarily rule out the entry of foreign investments,
goods and services. It contemplates neither economic seclusion nor mendicancy
in the international community.
The Senate, after deliberation and voting, gave its consent to the WTO Agreement
thereby making it a part of the law of the land. The Supreme Court gave due
respect to an equal department in government. It presumes its actions as regular
and done in good faith unless there is convincing proof and persuasive agreements
to the contrary. As a result, the ratification of the WTO Agreement limits or restricts
the absoluteness of sovereignty. A treaty engagement is not a mere obligation but
creates a legally binding obligation on the parties. A state which has contracted
valid international obligations is bound to make its legislations such modifications as
may be necessary to ensure the fulfillment of the obligations undertaken
Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human
rights violations during the Marcos era, obtained a Final Judgment in their favor
against the Estate of the late Ferdinand Marcos amounting to roughly $1.9B in
compensatory and exemplary damages for tortuous violations of international law in
the US District Court of Hawaii. This Final Judgment was affirmed by the US Court of
Appeals.
As a consequence, Petitioners filed a Complaint with the RTC Makati for the
enforcement of the Final Judgment, paying P410 as docket and filing fees based on
Rule 141, 7(b) where the value of the subject matter is incapable of pecuniary
estimation. The Estate of Marcos however, filed a MTD alleging the non-payment of
the correct filing fees. RTC Makati dismissed the Complaint stating that the subject
matter was capable of pecuniary estimation as it involved a judgment rendered by a
foreign court ordering the payment of a definite sum of money allowing for the easy
determination of the value of the foreign judgment. As such, the proper filing fee
was P472M, which Petitioners had not paid.
Issue: Whether or not the amount paid by the Petitioners is the proper filing fee.
Ruling:
What governs the proper computation of the filing fees over Complaints for the
enforcement of foreign judgments is 7(b)(3), involving other actions not involving
property.
The question concerning the International States of South West Africa had been
referred for an advisory opinion to the Court by the General Assembly of the United
Nations (G.A. resolution of 6 December 1949).
The Court decided unanimously that South-West Africa was a territory under the
international Mandate assumed by the Union of South Africa on December 17th,
1920;
by 12 votes to 2 that the Union of South Africa continued to have the international
obligations resulting from the Mandate, including the obligation to submit reports
and transmit petitions from the inhabitants of that Territory, the supervisory
functions to be exercised by the United Nations and the reference to the Permanent
Court of International Justice to be replaced by reference to the International Court
of Justice, in accordance with Article 7 of the Mandate and Article 37 of the Statute
of the Court;
unanimously that the provisions of Chapter XII of the Charter were applicable to the
Territory of South-West Africa in the sense that they provided a means by which the
Territory may be brought under the Trusteeship system;
by 8 votes to 6 that the Charter did not impose on the Union of South Africa a legal
obligation to place the Territory under Trusteeship;
and finally, unanimously that the Union of South Africa was not competent to modify
the international status of South-West Africa, such competence resting with the
Union acting with the consent of the United Nations.
**
The circumstances in which the Court was called upon to give its opinion were the
following:
The Territory of South-West Africa was one of the German overseas possessions in
respect of which Germany, by Article 119 of the Treaty of Versailles renounced all
her rights and titles in favour of the Principal Allied and Associated Powers. After the
war of 1914-1918 this Territory was placed under a Mandate conferred upon the
Union of South Africa which was to have full power of administration and legislation
over the Territory as an integral portion of the Union. The Union Government was to
exercise an international Sanction of administration on behalf of the League, with
the object of promoting the well-being and development of the inhabitants.
After the second world war, the Union of South Africa, alleging that the Mandate had
lapsed, sought the recognition of the United Nations to the integration of the
Territory in the Union.
The United Nations refused their consent to this integration and invited the Union of
South Africa to place the Territory under Trusteeship, according to the provisions of
Chapter XII of the Charter.
The Union of South Africa having refused to comply, the General Assembly of the
United Nations, on December 6th, 1949, adopted the following resolution:
Considering that it is desirable that the General Assembly, for its further
consideration of the question, should obtain an advisory opinion on its legal aspects,
"What is the international status of the Territory of South-West Africa and what are
the international obligations of the Union of South Africa arising therefrom, in
particular:
"(a) Does the Union of South Africa continue to have international obligations under
the Mandate for South-West Africa and, if so, what are those obligations?
"(b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what
manner, to the Territory of South-West Africa?
"(c) Has the Union of South Africa the competence to modify the international status
of the Territory of South West Africa, or, in the event of a negative reply, where does
competence rest to determine and modify the international status of the Territory?"
The Secretary-General shall include among these documents the text of article 22 of
the Covenant of the League of Nations; the text of the Mandate for German South-
West Africa, confirmed by the Council of the League on 17 December 1920; relevant
documentation concerning the objectives and the Sanctions of the Mandates
System; the text of the resolution adopted by the League of Nations on the question
of Mandates on 18 April 1946; the text of Articles 77 and 80 of the Charter and data
on the discussion of these Articles in the San Francisco Conference and the General
Assembly; the report of the Fourth Committee and the official records, including the
annexes, of the consideration of the question of South-West Africa at the fourth
session of the General Assembly.
**
In its opinion the Court examined first if the Mandate conferred by the Principal
Allied and Associated Powers on His Britannic Majesty, to be exercised on his behalf
by the Union of South Africa, over the Territory of South-West Africa was still in
existence. The Court declared that the League was not a "mandator" in the sense in
which this term is used in the national law of certain states. The Mandate had only
the name in common with the several notions of mandate in national law. The
essentially international character of the functions of the Union appeared from the
fact that these functions were subject to the supervision of the Council of the
League and to the obligation to present annual reports to it; it also appeared from
the fact that any Member of the League could submit to the Permanent Court of
International Justice any dispute with the Union Government relating to the
interpretation or the application of the provisions of the Mandate.
The international obligations assumed by the Union of South Africa were of two
kinds. One kind was directly related to the administration of the Territory and
corresponded to the sacred trust of civilization referred to in article 22 of the
Covenant; the other related to the machinery for implementation and was closely
linked to the supervision and control of the League. It corresponded to the
"securities for the performance of this trust" referred to in the same Article.
The obligations of the first group represent the very essence of the sacred trust of
civilization. Their raison d'tre and original object remain. Since their fulfilment did
not depend on the existence of the League of Nations, they could not be brought to
an end merely because this supervisory organ ceased to exist. This view is
With regard to the second group of obligations, the Court said that some doubts
might arise from the fact that the supervisory functions of the League with regard to
mandated territories not placed under the new trusteeship system were neither
expressly transferred to the United Nations, nor expressly assumed by that
Organization. Nevertheless, the obligation incumbent upon a Mandatory State to
accept international supervision and to submit reports is an important part of the
Mandates System. It could not be concluded that the obligation to submit to
supervision had disappeared merely because the supervisory organ had ceased to
exist when the United Nations had another international organ performing similar,
though not identical, supervisory functions.
The right of petition was not mentioned in the Covenant or the Mandate, but was
organized by a decision of the Council of the League. The Court was of opinion that
this right which the inhabitants of South-West Africa had thus acquired, was
maintained by Article 80, paragraph 1, of the Charter, as this clause was interpreted
above. The Court was therefore of the opinion that petitions are to be transmitted
by the Government of the Union to the General Assembly of the United Nations,
which is legally qualified to deal with them.
Having regard to Article 37 of the Statute of the International Court of Justice and
Article 80, paragraph 1, of the Charter, the Court was of opinion that this clause in
the Mandate was still in force, and therefore that the Union of South Africa was
under an obligation to accept the compulsory jurisdiction of the Court according to
those provisions.
With regard to question (b) the Court said that Chapter XII of the Charter applied to
the Territory of South-West Africa in this sense, that it provides a means by which
the Territory may be brought under the trusteeship system.
With regard to the second part of the question, dealing with the manner in which
those provisions are applicable, the Court said that the provisions of this chapter did
not impose upon the Union of South Africa an obligation to put the Territory under
Trusteeship by means of a Trusteeship Agreement. This opinion is based on the
permissive language of Articles 75 and 77. These Articles refer to an "agreement"
which implies consent of the parties concerned. The fact that Article 77 refers to the
"voluntary" placement of certain Territories under Trusteeship does not show that
the placing of other territories under Trusteeship is compulsory. The word
"voluntary" used with respect to territories in category (c) in Article 77 can be
explained as having been used out of an abundance of caution and as an added
assurance of free initiative to States having territories falling within that category.
The Court considered that if Article 80, paragraph 2 had been intended to create an
obligation for a Mandatory State to negotiate and conclude an agreement, such
intention would have been expressed in a direct manner. It considered also that this
article did not create an obligation to enter into negotiations with a view to
concluding a Trusteeship Agreement as this provision expressly refers to delay or
postponement "of the negotiation and conclusion", and not to negotiations only.
Moreover, it refers not merely to territories held under mandate but also to other
territories. Finally the obligation merely to negotiate does not of itself assure the
conclusion of Trusteeship Agreements. It is true that the Charter has contemplated
and regulated only one single system, the international Trusteeship system. If it may
be concluded that it was expected that the mandatory States would follow the
normal course indicated by the Charter and conclude Trusteeship Agreements, the
Court was unable to deduce from these general considerations any legal obligation
for mandatory States to conclude or negotiate such agreements. It is not for the
Court to pronounce on the political or moral duties which these considerations may
involve.
With regard to question (c) the Court decided that the Union had no competence to
modify unilaterally the international status of the Territory. It repeated that the
normal way of modifying the international status of the Territory would be to place it
under the Trusteeship System by means of a Trusteeship Agreement, in accordance
with the provisions of Chapter XII of the Charter.
Article 7 of the Mandate required the authorization of the Council of the League for
any modifications of its terms. In accordance with the reply given to question (a) the
Court said that those powers of supervision now belong to the General Assembly of
the United Nations. Articles 79 and 85 of the Charter required that a trusteeship
agreement be approved by the General Assembly. By analogy it could be inferred
that the same procedure was applicable to any modification of the international
status of a territory under Mandate which would not have for its purpose the placing
of the territory under the trusteeship system.
Moreover, the Union of South Africa itself decided to submit the question of the
future international status of the territory to the "judgment" of the General
Assembly as the "competent international organ". In so doing, the Union recognised
the competence of the General Assembly in the matter. On the basis of these
considerations, the Court concluded that competence to determine and modify the
international status of the Territory rested with the Union, acting in agreement with
the United Nations.
Sir Arnold McNair and Judge Read appended to the Court's Opinion a statement of
their separate opinions.
Vice-President Guerrero declared that he could not concur in the Court's opinion on
the answer to question (b). For him, the Charter imposed on the South African Union
an obligation to place the Territory under Trusteeship. On this point and on the text
in general, he shared the views expressed by Judge De Visscher.
Judges Zoricic and Badawi Pasha declared that they were unable to concur in the
answer given by the Court to the second part of the question under letter (b) and
declared that they shared in the general views expressed on this point in the
dissenting opinion of Judge De Visscher.
The Court's opinion was given in a public hearing. Oral statements were presented
on behalf of the Secretary-General of the United Nations by the Assistant SecretaryGeneral in charge of the Legal Department, and on behalf of the Governments of
the Philippines and of the Union of South Africa.
institutions :
(a) that the control of the trustee, tuteur or curateur over the
property is limited in one way or another ; he is not in the position of
the normal complete owner, who can do what he likes with his own,
because he is precluded from administering the property for his own
personal benefit;
(b) that the trustee, tuteur or curateur is under some kind of legal
obligation, based on confidence and conscience, to carry out the
trust or mission confided to him for the benefit of some other person
or for some public purpose ;
(c) that any attempt by one of these persons to absorb the property
entrusted to him into his own patrimony would be illegal and would
be prevented by the law.
These are some of the general principles of private law which throw
light upon this new institution, and I am convinced that in its future
development the law governing the trust is a source from which
much can be derived. The importance of the Mandates System is
marked by the fact that, after the experience of a quarter of a
century, the Charter of the United Nations made provision for an
"International Trusteeship System", which was described by a [p150]
Resolution of the Assembly of the League of April 18th, 1946, as
embodying "principles corresponding to those declared in Article 22
of the Covenant of the League".
Upon sovereignty a very few words will suffice. The Mandates
System (and the "corresponding principles" of the International
Trusteeship System) is a new institution-a new relationship
between territory and its inhabitants on the one hand and the
government which represents them internationally on the other a
new species of international government, which does not fit into the
old conception of sovereignty and which is alien to it. The doctrine of
sovereignty has no application to this new system. Sovereignty over
a Mandated Territory is in abeyance ; if and when the inhabitants of
something "on behalf of the League", and that that is all that can be
extracted from their use. It is primarily from the principles of the
trust that help can be obtained on the side of private law.
In Ffrost v. Stevenson (1937), 58 Commonwealth Law Reports 528,
Annual Digest and Reports of Public International Law Cases, 19351937, Case No. 29, the High Court of Australia, on appeal from the
Supreme Court of New South Wales, had to decide, on a matter of
extradition, whether or not "the Mandated Territory of New Guinea
[also a C Mandate] is a place out of His Majesty's Dominions in
which His Majesty has jurisdiction....". The High Court gave an
affirmative answer. This decision involved a consider-[p152]ation of
the nature of a Mandate and the powers of a Mandatory, and the
following extracts from the judgments of Chief Justice Latham and
Mr. Justice Evatt are of interest. The former said :
"The grant of mandates introduced a new principle into international
law...." (P. 550.)
"The position of a mandatory in relation to a mandated territory
must be regarded as sui generis. The Treaty of Peace, read as a
whole, avoids cession of territory to the mandatory, and, in the
absence of definite evidence to the contrary, it must, I think, be
taken that New Guinea has not become part of the dominions of the
Crown." (P. 552.)
"The intention of this provision [Article 257 of the Treaty of Peace]
must be taken to have been to provide for the transfer of the
territory to the mandatory, but only in its capacity as a mandatory.
The mandatory, as a kind of international trustee, receives the
territory subject to the provisions of the mandate which limit the
exercise of the governmental powers of the mandatory. Thus the
article quoted, while recognizing that the territory is actually to be
transferred to the mandatory, emphasizes the conditions and
limitations upon governmental power which constitute the essence
of the mandatory system. Thus the title under which the territory is
conscience and the free exercise of all forms of worship" and for the
admission, travel and residence of missionaries who are nationals of
any State Member of the League of Nations. Article 6 provides that :
"The mandatory shall make to the Council of the League of Nations
an annual report to the satisfaction of the Council, containing full
information with regard to the Territory and indicating the measures
taken to carry out the obligations assumed under Articles 2, 3, 4 and
5."
Article 7 provides that :
"The consent of the Council of the League of Nations is required for
any modification of the terms of the present Mandate.
The Mandatory agrees that, if any dispute whatever should arise
between the Mandatory and another Member of the League of
Nations relating to the interpretation or the application of the
provisions of the Mandate, such dispute, if it cannot be settled by
negotiation, shall be submitted to the Permanent Court of
International Justice provided for by Article 14 of the Covenant of the
League of Nations...."
These obligations possess two distinct characters. The provisions of
the Mandate are in part contractual 'and in part "dispositive" (upon
which term see Westlake, International Law (2nd edition), ii, pp. 60,
294). In English terminology, it is both a "contract" and a
"conveyance", that is to Say, a document which transfers or creates
rights connected with property or possession. In addition to the
personal rights and obligations referred to above, it also created
certain "real" rights and obligations. Coupled with the effect of the
assent of the Principal Allied and Associated Powers, in whose favour
Germany renounced her rights and titles over South-West Africa and
who are expressly described in the preamble of the Mandate as the
proposers of the Mandate, the Mandate transferred to the
There are also many statements to the effect that the Union
Government will continue to administer the Territory "in the spirit of
the Mandate". These statements are in the aggregate contradictory
and inconsistent; and I do not find in them adequate evidence that
the Union Government has either assented to an implied succession
by the United Nations to the administrative supervision exercised by
the League up to the outbreak of the war in 1939, or has entered
into a new obligation towards the United Nations to revive the prewar system of supervision.
A fourth contention is based on a Resolution on the Mandates
adopted by the Assembly of the League on April 18, 1946, by virtue
of which, the Assembly
"3. Recognizes that, on the termination of the League's existence, its
functions with respect to the Mandated Territories will come to an
end, but notes that Chapters XI, XII and XIII of the Charter of the
United Nations embody principles corresponding to those declared
in Article 22 of the Covenant of the League;
4. Takes note of the expressed intentions of the Members of the
League now administering Territories under Mandate to continue to
administer them for the well-being and development of the peoples
concerned in accordance with the obligations contained in the
respective Mandates, until other arrangements have been agreed
between the United Nations and the respective Man-datory Powers."
By this Resolution the Assembly recognized that the functions of the
League had come to an end ; but it did not purport to transfer them,
with the consent of all States interested therein, to the United
Nations. I do not see how this Resolution can be construed as having
created a legal obligation by the Union to make annual reports to
the United Nations and to transfer to that Organization the pre-war
supervision of its Mandate by the League. At the most it could
impose an obligation to perform those obligations of the Mandate
and there are manywhich did not involve the activity of the
League.
In these circumstances, I cannot find any legal ground on which the
Court would be justified in replacing the Council of the League by
the United Nations for the purposes of exercising the administrative
supervision of the Mandate and the receipt and examin-[p162]ation
of reports. It would amount to imposing a new obligation upon the
Union Government and would be a piece of judicial legislation. In
saying this, I do not overlook the competence of the 7General
Assembly of the United Nations, under Article 10 of the Charter, to
discuss the Mandate for South-West Africa and to make
recommendations concerning it, but that competence depends not
upon any theory of implied succession but upon the provisions of
the Charter.
For these reasons I am of the opinion that the continuing
international obligations of the Union of South Africa under the
Mandate for South-West Africa do not include the obligation to
accept the administrative supervision of the United Nations and to
render annual reports to that Organization.
***
Question (b)
I concur in the Opinion of the majority of the Court with respect to
this question.
***
Question (c)
There remains to be considered the effect of the dissolution of the
League upon the first paragraph of Article 7 of the Mandate,
whereby "the consent of the Council of, the League of Nations is
required for any modification of the terms of the present Mandate"
between the United Nations and the Union Government, and that
competence to determine and modify the international status of the
Territory rests with the Union of South Africa acting with the consent
of the United Nations.
{Signed) Arnold D. McNair. [p164]
Filrtiga v. Pea-Irala
Synopsis
Filrtiga v. Pea-Irala is a lawsuit filed in 1979 charging former Paraguayan official
Americo Pea-Irala with the wrongful death of Joelito Filrtiga.
Description
On April 6, 1979, in the U.S. District Court for the Eastern District of New York,
Filrtiga v. Pea-Irala was filed on behalf of Dr. Joel Filrtiga and Dolly Filrtiga
charging former Paraguayan official Americo Pea-Irala with the wrongful death of
Joelito Filrtiga. The suit was filed under a previously little-used 1789 federal
statute, the Alien Tort Claims Act, which gives foreign nationals the right to sue for
wrongful actions that violate international law.
Dolly Fitrtiga and her younger brother Joelito lived in Asuncion, Paraguay, with their
mother and father, Dr. Joel Filrtiga, a well-known physician, painter, and opponent
of Latin Americas most durable dictator, General Alfredo Stroessner. In 1976, 17year-old Joelito was abducted and later tortured to death by Americo Norberto PeaIrala, the inspector general in the Department of Investigation for the Police of
Asunsion. Dolly Filrtiga was forced out of her house in the middle of the night to
view her brothers mutilated body.
Although the district court initially stayed Peas deportation, it ultimately granted
Peas motion to dismiss the complaint and allowed his return to Paraguay, ruling
that, although the proscription of torture had become a norm of customary
international law, the court was bound to follow appellate precedents which
narrowly limited the function of international law only to relations between states.
On appeal, the circuit reversed, recognizing that foreign nationals who are victims of
international human rights violations may sue their malfeasors in federal court for
civil redress, even for acts which occurred abroad, so long as the court has personal
jurisdiction over the defendant. The court ruled that freedom from torture is
guaranteed under customary international law. This decision provides a critical
forum for human rights violations.
The Center for Constitutional Rights (CCR) attorneys had briefed the meaning of
international law in view of the post-Nuremberg emergence of an international law
of human rights applicable to individuals as well as states. CCR explored the origin
of the act as a source of federal judicial power over matters of international
dimension and its purpose in preventing the sanctuary this country offers to the
persecuted from immunizing international criminals. Todays torturers, CCR argued,
are like eighteenth century piratesenemies of all humanity (hostes humani
generis)and should pay for their crimes wherever they are found.
Asked by the court to submit an amicus brief, the State Department, influenced
perhaps by the Iran hostage crisis, supported plaintiffs view of international law and
the scope of the acts jurisdiction. The circuit court completely rejected its earlier
narrow interpretation of international law and opened the door of the federal courts
to civil actions by aliens and citizens alike for damages for human rights violations.
The decision was a precedent for claims involving an increasing number of
internationally recognized rights, including freedom from torture, slavery, genocide,
and cruel and inhuman treatment. It was been hailed by international human rights
experts in this country and abroad.
Upon remand by the circuit in June 1980, the district court granted plaintiffs motion
for a default judgment against Pea for failure to answer the complaint and referred
the case to a magistrate for determination of the damages due the Filrtiga family.
The magistrate awarded the Filrtigas over $10 million in damages. CCR attorneys
continued to investigate ways to enforce the award.
Alien Tort Statute (ATS) (28 U.S.C. 1350) provides: " the district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations or of a treaty of the United States."
This law was pretty much never used between the time it was enacted (1789), and
during the 1980s.
FACTS
Filartiga was a Paraguayan dissident. Filartiga's son was tortured and murdered by a
Paraguayan official named Pena-Irala (where does one get a name like that!?) in the
state of Paraguay.
The killing was politically motivated.
Filartigia tried to get justice in Paraguay, was unsuccessful. :(
Pena-Irala came to the US on vacation, and was sued by Filartiga (who lived in the
US) under the ATS. (Maybe he will get some justice now!)
PROCEDURAL HISTORY
Quick Synopsis
Filrtiga v. Pea-Irala was a lawsuit that charged former Paraguayan official Americo
Pea-Irala with the wrongful death of Joelito Filrtiga.
Issue
Can an individual sue for a murder that happened outside of the United States that
was politically motivated?
Holding
Rules of Law
The Alien Torts Statute (28 U.S.C. 1350) states that the district courts shall have
original jurisdiction of any civil action by an alien for tort only, committed in
violation of the law of nations or a treaty with the United States.
Since 1980, courts have interpreted this statute to give foreign citizens the right to
seek remedies in the courts of the United States for human-rights violations for
conduct that has been committed outside of the United States.
Discussion
The appellate court reversed the holding of the trial court, looking to The Paquete
Habana (175 U.S. 677 (1900)).
The Paquete Habana stated that the law of nations should be interpreted as
customary international law, under which exists a set of human rights and
fundamental freedoms.
The extent of those rights and freedoms is debatable, however, they surely include
the right to not be tortured and the right to not be killed.
Under the Alien Tort Statute, Filartiga had a claim since Pena-Iralia was accused of
violating the laws of nations.
Held: The key questions are those of governmental control and governmental
functions and that these are to be determined as a matter of English law, although
the English courts may have regard to the position under the law where the body is
incorporated and account can be taken of the view of the government concerned.
International law was incorporated into domestic law unless it was in conflict with
statutory provision. This enabled domestic law to respond to changes in
international law rather than it being bound by the interpretation of international
law upon a particular point when it was first decided, if international law had later
evolved. Domestic law could evolve as the incorporated international law evolved.
Lord Denning MR said: Seeing that the rules of international law have changed
and do change and that the courts have given effect to the changes without any
Act of Parliament, it follows to my mind inexorably that the rules of international
law, as existing from time to time, do form part of our English law. and we should
give effect to those changes and not be bound by any idea of stare decisis in
international law and Governments everywhere engage in activities which
although incidental in one way or another to the business of government are in
themselves essentially commercial in their nature.
Lord Denning MR said that it was necessary to look to all the evidence to see
whether the organisation in question was under government control and exercised
governmental functions in order to determine whether it was part of the State.
Shaw LJ stated that whether a particular organisation is to be accorded the status of
a department of government or not must depend upon its constitution, its powers
and duties and its activities. There could be no intermediate hybrid status occupied
by the bank where it was regarded as a government department for certain
purposes and as an ordinary commercial or financial institution for different
purposes.
o
o
o
Federico Tinoco.
Tinoco assumed power & established new constitution
During his tenure, he:
Granted certain concession to search for oil to a British company
Passed legislation issuing certain new currencies, and British banks [in the
course of business] became holders of much of this currency
1919 - Tinoco retired, left the country Government fall.
Old constitution restored and elections were held.
August 22, 1922, restored government passed Acts nullifying the currency laws it
had made
o Consequence: Invalidated all transactions involved
o The restored government is a signatory of the treaty of arbitration.
The Claim:
o Brought by Great Britain on behalf of two British Corporations:
Royal Bank of Canada
Central Costa Rica Petroleum Company
o Royal Bank of Canada claimed:
Banco Internacional of Costa Rica and the Government of Costa Rica are
significant manner
Thus giving the government legitimacy
All its acts were valid and its successor has no right to repudiate[annul]
them
Costa Rica:
Objected. Claimed that any acts carried out by the government were void
UK always refused to recognize the Tinoco gment as either de facto or de jure government. H/ever, they still
claim at the
arbitration proceedings that the Tinoco gment was in fact a de facto and de jure government.
The court finds in favor of the Royal Bank of Canada, but finds the petroleum
concession to be a violation of the 1917 Constitution (which means Tinoco
international law.
States may change between forms of government without ceasing to be that
state in the eyes of international law, or in terms of its international
obligations.
The principle of the continuity of states = state is bound by engagements
entered into by governments that have ceased to exist; the restored
government is generally liable for the acts of the usurper.
WESTERN SAHARA
In its Advisory Opinion which the General Assembly of the United Nations had
requested on two questions concerning Western Sahara, the Court,
With regard to Question I, "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at
the time of colonization by Spain a territory belonging to no one (terra nullius)?",
- decided by 13 votes to 3 to comply with the request for an advisory opinion;
- was unanimously of opinion that Western Sahara (Rio de Oro and Sakiet El Hamra)
at the time of colonization by Spain was not a territory belonging to no one (terra
nullius).
With regard to Question II, "What were the legal ties between this territory and the
Kingdom of Morocco and the Mauritanian entity?", the Court
- decided by 14 votes to 2 to comply with the request for an advisory opinion;
- was of opinion, by 14 votes to 2, that there were legal ties between this territory
and the Kingdom of Morocco of the kinds indicated in the penultimate paragraph of
the Advisory Opinion;
- was of opinion, by 15 votes to 1, that there were legal ties between this territory
and the Mauritanian entity of the kinds indicated in the penultimate paragraph of
the Advisory Opinion.
The penultimate paragraph of the Advisory Opinion was to the effect that:
The materials and information presented to the Court show the existence, at the
time of Spanish colonization, of legal ties of allegiance between the Sultan of
Morocco and some of the tribes living in the territory of Western Sahara. They
equally show the existence of rights, including some rights relating to the land,
which constituted legal ties between the Mauritanian entity, as understood by the
Court, and the territory of Western Sahara. On the other hand, the Court's
conclusion is that the materials and information presented to it do not establish any
tie of territorial sovereignty between the territory of Western Sahara and the
Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal
ties of such a nature as might affect the application of General Assembly resolution
1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle
of self-determination through the free and genuine expression of the will of the
peoples of the Territory.
For these proceedings the Court was composed as follows: President Lachs; VicePresident Ammoun; Judges Forster, Gros, Bengzon, Petrn, Onyeama, Dillard,
Ignacio-Pinto, de Castro, Morozov, Jimnez de Archaga, Sir Humphrey Waldock,
Nagendra Singh and Ruda; Judge ad hoc Boni.
Judges Gros, Ignacio-Pinto and Nagendra Singh appended declarations to the
Advisory Opinion; Vice-President Ammoun and Judges Forster, Petrn, Dillard, de
Castro and Boni appended separate opinions, and Judge Ruda a dissenting opinion.
In these declarations and opinions the judges concerned make clear and explain
their positions.
*
**
Course of the Proceedings
(paras. 1-13 of Advisory Opinion)
The Court first recalls that the General Assembly of the United Nations decided to
submit two questions for the Court's advisory opinion by resolution 3292 (XXIX)
adopted on 13 December 1974 and received in the Registry on 21 December. It
retraces the subsequent steps in the proceedings, including the transmission of a
dossier of documents by the Secretary-General of the United Nations (Statute, Art.
65, para. 2) and the presentation of written statements or letters and/or oral
which, if nomadic, were socially and politically organized in tribes and under chiefs
competent to represent them; (b) that Spain did not proceed upon the basis that it
was establishing its sovereignty over terrae nullius: thus in his Order of 26
December 1884 the King of Spain proclaimed that he was taking the Rio de Oro
under his protection on the basis of agreements entered into with the chiefs of local
tribes.
The Court therefore gives a negative answer to Question I. In accordance with the
terms of the request for advisory opinion, "if the answer to the first question is in
the negative", the Court is to reply to Question II.
Question 11: "What Were the Legal Ties of This Territory with the Kingdom of
Morocco and the Mauritanian Entity?"
(paras. 84-161 of Advisory Opinion)
The meaning of the words "legal ties" has to be sought in the object and purpose of
resolution 3292 (XXIX) of the United Nations General Assembly. It appears to the
Court that they must be understood as referring to such legal ties as may affect the
policy to be followed in the decolonization of Western Sahara. The Court cannot
accept the view that the ties in question could be limited to ties established directly
with the territory and without reference to the people who may be found in it. At the
time of its colonization the territory had a sparse population that for the most part
consisted of nomadic tribes the members of which traversed the desert on more or
less regular routes, sometimes reaching as far as southern Morocco or regions of
present-day Mauritania Algeria or other States. These tribes were of the Islamic
faith.
Morocco (paragraphs 90-129 of the Advisory Opinion) presented its claim to legal
ties with Western Sahara as a claim to ties of sovereignty on the ground of an
alleged immemorial possession of the territory and an uninterrupted exercise of
authority. In the view of the Court, however, what must be of decisive importance in
determining its answer to Question II must be evidence directly relating to effective
display of authority in Western Sahara at the time of its colonization by Spain and in
the period immediately preceding. Morocco requests that the Court should take
account of the special structure of the Moroccan State. That State was founded on
the common religious bond of Islam and on the allegiance of various tribes to the
Sultan, through their caids or sheiks, rather than on the notion of territory. It
consisted partly of what was called the Bled Makhzen, areas actually subject to the
Sultan, and partly of what was called the Bled Siba, areas in which the tribes were
not submissive to him; at the relevant period, the areas immediately to the north of
Western Sahara lay within the Bled Siba.
As evidence of its display of sovereignty in Western Sahara, Morocco invoked
alleged acts of internal display of Moroccan authority, consisting principally of
evidence said to show the allegiance of Saharan caids to the Sultan, including
dahirs and other documents concerning the appointment of caids, the alleged
imposition of Koranic and other taxes, and acts of military resistance to foreign
penetration of the territory. Morocco also relied on certain international acts said to
constitute recognition by other States of its sovereignty over the whole or part of
Western Sahara, including (a) certain treaties concluded with Spain, the United
States and Great Britain and Spain between 1767 and 1861, provisions of which
dealt inter alia with the safety of persons shipwrecked on the coast of Wad Noun or
its vicinity, (b) certain bilateral treaties of the late nineteenth and early twentieth
centuries whereby Great Britain, Spain, France and Germany were said to have
recognized that Moroccan sovereignty extended as far south as Cape Bojador or the
boundary of the Rio de Oro.
Having considered this evidence and the observations of the other States which
took part in the proceedings, the Court finds that neither the internal nor the
international acts relied upon by Morocco indicate the existence at the relevant
period of either the existence or the international recognition of legal ties of
territorial sovereignty between Western Sahara and the Moroccan State. Even
taking account of the specific structure of that State, they do not show that Morocco
displayed any effective and exclusive State activity in Western Sahara. They do,
however, provide indications that a legal tie of allegiance existed at the relevant
period between the Sultan and some, but only some, of the nomadic peoples of the
territory, through Tekna caids of the Noun region, and they show that the Sultan
displayed, and was recognized by other States to possess, some authority or
influence with respect to those tribes.
The term "Mauritanian entity" (paragraphs 139-152 of the Advisory Opinion) was
first employed during the session of the General Assembly in 1974 at which
resolution 3292 (XXIX), requesting an advisory opinion of the Court, was adopted. It
denotes the cultural, geographical and social entity within which the Islamic
Republic of Mauritania was to be created. According to Mauritania, that entity, at the
relevant period, was the Bilad Shinguitti or Shinguitti country, a distinct human unit,
characterized by a common language, way of life, religion and system of laws,
featuring two types of political authority: emirates and tribal groups.
Expressly recognizing that these emirates and tribes did not constitute a State,
Mauritania suggested that the concepts of "nation" and of "people" would be the
most appropriate to explain the position of the Shinguitti people at the time of
colonization. At that period, according to Mauritania, the Mauritanian entity
extended from the Senegal river to the Wad Sakiet El Hamra. The territory at
present under Spanish administration and the present territory of the Islamic
Republic of Mauritania thus together constituted indissociable parts of a single
entity and had legal ties with one another.
The information before the Court discloses that, while there existed among them
many ties of a racial, linguistic, religious, cultural and economic nature, the
emirates and many of the tribes in the entity were independent in relation to one
another; they had no common institutions or organs. The Mauritanian entity
therefore did not have the character of a personality or corporate entity distinct
from the several emirates or tribes which comprised it. The Court concludes that at
the time of colonization by Spain there did not exist between the territory of
Western Sahara and the Mauritanian entity any tie of sovereignty, or of allegiance of
tribes, or of simple inclusion in the same legal entity. Nevertheless, the General
Assembly does not appear to have so framed Question II as to confine the question
exclusively to those legal ties which imply territorial sovereignty, which would be to
disregard the possible relevance of other legal ties to the decolonization process.
The Court considers that, in the relevant period, the nomadic peoples of the
Shinguitti country possessed rights, including some rights relating to the lands
through which they migrated. These rights constituted legal ties between Western
Sahara and the Mauritanian entity. They were ties which knew no frontier between
the territories and were vital to the very maintenance of life in the region.
Morocco and Mauritania both laid stress on the overlapping character of the
respective legal ties which they claimed Western Sahara to have had with them at
the time of colonization (paragraphs 153-160 of the Advisory Opinion). Although
their views appeared to have evolved considerably in that respect, the two States
both stated at the end of the proceedings that there was a north appertaining to
Morocco and a south appertaining to Mauritania without any geographical void in
between, but with some overlapping as a result of the intersection of nomadic
routes. The Court confines itself to noting that this geographical overlapping
indicates the difficulty of disentangling the various relationships existing in the
Western Sahara region at the time of colonization.