UNIVERSITY OF CAGAYAN VALLEY
COLLEGE OF LAW
PUBLIC INTERNATIONAL
LAW
CASE DIGEST
SUBMITTED BY: JOFEL TARUC UNDAY
SUBMITTED TO: PROSECUTOR SUSAN DANAO
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JOFEL T. UNDAY
PUBLIC INTERNATIONAL LAW
CASE NO. 1
G.R. No. 159618 February 1, 2011
BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep.
LIZA L. MAZA,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs
FACTS
On May 9, 2003, a US Embassy Note was sent by Ambassador Francis J. Ricciardone proposing
the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP
to the DFA. Ople who was the DFA Secretary that time, through Exchange Note dated May 13, 2003, put
in effect the agreement with the US. The agreement the persons of US and RP from frivolous and
harassment suits that might be brought against them in international tribunals
Petitioner prays that the agreement be struck down as unconstitutional, or at least declared as
without force and effect claiming that the respondents committed grave abuse of discretion in concluding
and ratifying the Agreement.
Petitioner challenged the Agreement based on its form, claiming that the exchange notes cannot
be a valid medium for concluding the Agreement.
Petitioner claimed that the Agreement is of uncertain validity, as it does fall under the nature of a
treaty; hence, it must be duly concurred in by the Senate. The cue was taken by the petitioner from the
case of Customs v. Eastern Sea Trading where the SC reproduced the observations made by the US legal
scholars "[I]nternational 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."
Petitioner claimed that the agreement did not fall under any of the enumerated subject categories of that
case.
Petitioner also applied the case of Adolfo v. CFI where the court decided that an executive
agreement through an exchange of notes cannot be used to amend a treaty.
The petitioner also argued that the agreement unduly restricts the ICC’s jurisdiction and infringes
upon the effectivity of the Rome Statute as it undermines the establishment of the ICC. According to the
petitioner, the non-surrender agreement prevents the state parties from fulfilling their obligations under
the Rome Statute postulating that the Agreement was constituted solely for the purpose of providing
individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such grant of
immunity through non-surrender agreements allegedly does not legitimately fall within the scope of Art.
98 of the Rome Statute.
ISSUE
The Supreme Court summarize the issues into 2:
1. Whether or not the Agreement was contracted validly, which resolves itself into the question of
whether or not respondents gravely abused their discretion in concluding it.
2. Whether or not the Agreement, which has not been submitted to the Senate for concurrence,
contravenes and undermines the Rome Statute and other treaties.
RULING
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1. No.
The doctrine of incorporation as specified in Article II, Section 2 of the Constitution wherein the
Philippines adopts the generally accepted principles of international law and international jurisprudence
as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations
should be applied. Exchange of Notes is an internationally accepted form of International Agreement that
falls under the category of inter-governmental agreements. Exchange of notes(E/N BFO-028-03) for the
Non-Surrender Agreement itself is an integral instrument of acceptance or as a consent to be bound - is a
recognized mode of concluding a legally binding international written contract among nations. The
United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:
An "exchange of notes" is a record of a routine agreement, that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the parties being
in the possession of the one signed by the representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its assent. The signatories of the letters may
be government Ministers, diplomats or departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of
legislative approval.
There was no grave abuse of discretion in concluding it. The president of the Philippines, was
vested by the constitution the power enter into international agreements, and in proper cases, subject to
the concurrence votes of the senate. However, executive agreement may validly entered into without such
concurrence. As the Supreme Court said, “ As the President wields vast powers and influence, her
conduct in the external affairs of the nation is, as Bayan would put it, executive altogether. The right of
the President to enter into or ratify binding executive agreements has been confirmed by long practice.”
As confirmed by the long practice, the president has the right to enter into or ratify binding executive
agreements. President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested in her by the Constitution.
2. No.
As to the petitioner’s contention on the categorization of subject matters in the Eastern Sea
Trading case the Supreme Court said, “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”. It is the
intent of the parties which is the primary consideration in the choice of the form of agreement they so
wish to further their respective interests. Under the pacta sunt servanda principle, the form of the
agreement is not a major consideration.
The reliance of the petitioner on the case of Adolfo is misplaced as the facts of the current case is
different from the former. The supreme court said’ “Indeed, an executive agreement that does not require
the concurrence of the Senate for its ratification may not be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of the Executive and the Senate.” However, in the given
case there was no treaty subjected for an amendment through the executive agreement. Thus, the
agreement is effective and valid.
The agreement not in contravention of the Rome Statute. The agreement and the Rome Statute
actually complement each other. In fact the principle of complementarity underpins the creation of the
ICC the jurisdiction of the ICC is to "be complementary to national criminal jurisdictions [of the
signatory states]."54 Art. 1 of the Rome Statute pertinently provides:
An International Crimininal Court ("the Court") is hereby established. It shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of
this Statute.
The Rome Statute sixth preambular paragraph declares that "it is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes." This means that primary
jurisdiction over the so-called international crimes rests, at the first instance, with the state where the
crime was committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17,
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par. 1of the Rome Statute. Under Art. 20, par. 3 of Rome Statute provides that "no person who has been
tried by another court for conduct (constituting crimes within its jurisdiction) shall be tried by the
International Criminal Court with respect to the same conduct” which again underscores the primacy of
the jurisdiction of a state vis-a-vis that of the ICC.
Therefore, there is no conflict between the Philippines as party to the Agreement and the ICC.
CASE NO. 2
Baggerwerken Decloedt En Zoon NV v. Republic of the Philippines, ICSID Case No. ARB/11/27
Facts
On January 4, 2010, during the time of Arroyo administration, the DENR negotiated an P18.7-
billion dredging project to rehabilitate and enhance Laguna de Bay’s fresh water resources, and at the
same time prevent massive flooding with Baggerweken Decloedt En Zoon (BDC), as the chosen
contractor for the project. BDC project was intended to dredge the 94,900-hectare Laguna de Bay and
deepen its average depth of 2.5 meters, and to create navigational channels in the waterway. The lake has
Class C water quality considered to be unsuitable for human consumption.
Ten billion pesos of the P18.7-billion project was reserved for the dredging of the navigational
lanes the lake and would lower the water level by one centimeter while the P8.7 billion was to be
allocated for the reclamation of certain sites in surrounding communities of the lake. However, the
relocation of informal settlers, the reforestation of bay areas, waste-water treatment plans and the
development of a ferry system within the lake not included in the BDC project.
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The Investment Coordinating Council (ICC) of the National Economic and Development
Authority (NEDA) signed for the supply contract on Oct. 27, 2009, as endorsed by the regional
development council (RDC). The Belgian government was expected to fund the project through its super
subsidy fund.
On April 30, 2010, the agreement for an P18.7-billion commercial loan with BNP Paribas-Fortis
Bank of Belgium was signed by then Finance Secretary Margarito Teves. On the same year, under the
Aquino Administration, the project was ceased by the government. The BDC claimed that they never
received a formal letter from then president Aquino canceling the contract and that have only done it
through press statements.
In April 2011, BDC sued the Republic of the Philippines under the Aquino administration before
ICSID for breaching its contract after all its efforts to push the project.
ISSUE
Whether or not the Philippine Government's unilateral termination of its contract with the BDC entered
into by the previous administration with the claimant for the rehabilitation of Laguna Lake to reduce
flooding caused by heavy siltation and to improve the ecological condition of the area is valid.
RULING
No. ICSD (International Center for the Settlement of Investment Disputes) ordered the Philippine
government to pay P800 million to Baggerwerken Decloedt En Zoon (BDC) for all the losses incurred by
the firm for the project’s cancellation. On January 23, 2017 the Tribunal rendered its award wherein
concurring opinion by Pierre Tercier and a separate opinion by Stanimir A. Alexandrov were attached.
The Philippines as a member of the World Trade Organization is required to commit itself to
enforcements of the international trade agreements. The rehabilitation of the Laguna de Bay constituted a
bilateral agreement between the Philippines and Belgium-Luxembourg. To enforce its right, the Republic
must then first respect the agreement it entered. It is the duty of the country to fulfill its obligation
regardless of its leader’s belief as long as such agreement is valid with the full consent of the parties.
The president has power enter into international agreements as provided in the Philippine
constitution. Gloria Macapagal Arrayo who was the de jure president at the time of perfection of the
contract had the valid authority to ratify the agreement and thus cannot be questioned by the succeeding
administration unless a clear and convincing proof that the Philippines will be put to a more disadvantage
position that will go against international standards if such agreement shall push through shall be
established.
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CASE NO. 3
Award of the International Tribunal in the matter of the South China Sea Arbitration, PCA Case No.
2013-19 [2016]
FACTS
In 2013, the Philippines served China with notification and Statement of Claim concerning
certain issues in the South China Sea including the legality of China's Nine-dash line. The case was
known as South China Sea Arbitration, an arbitration case under Annex VII to the United Nations
Convention on the Law of the Sea (UNCLOS) brought by the Republic of the Philippines against the
People's Republic of China. An arbitral tribunal at The Hague was then created. However, On February
19, 2013, China declared its non-participation in the arbitration.
According to the Philippines China’s claim on "nine-dotted line" is a violation on the UNCLOS
agreements about exclusive economic zones and territorial seas and thus, is invalid. The features in
the South China Sea, including most of the Spratly Islands cannot be given their own continental shelf as
defined in the convention because it cannot sustain life.
China claimed that several treaties with the Philippines stipulate that bilateral negotiations be
used to resolve border disputes so it refused to participate in the arbitration. According to China also, the
Philippines of violated the voluntary Declaration on the Conduct of Parties in the South China Sea, made
in 2002 between ASEAN and China, which also stipulated bilateral negotiations as the means of
resolving border and other disputes. China claimed that the dispute was a matter of sovereignty not
exploitation rights and thus cannot be subjected to arbitration. However, China’s Its refusal did not
prevent the PCA tribunal from proceeding with the case. After the award ruling, the People of the
Republic of China issued a statement rejecting the award as 'null' and having decided not to abide by the
arbitral tribunal's decision and thus it will ignore the ruling.
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According to China the dispute’s principal subject matters are political thus outside the
jurisdiction and competence of the Tribunal while the Philippines claimed that the dispute is within
jurisdiction of the Tribunal because subject matters in the dispute tangled the interpretation and
application of UNCLOS.
ISSUE
Whether or not the Award of the International Tribunal in the matter of the South China Sea Arbitration is
valid.
RULING
Yes. On July 12, 2016, the PCA tribunal ruled that there is no legal basis or historic claim on the
Nine-dash line by China. China rejected the ruling, despite stating that all nations should 'respect
international laws' but the PCA tribunal held that it had jurisdiction to ponder the merits of almost all the
Submissions made by the Philippines and, overall, recognized the claims and arguments on the merits
emphasized by the Philippines.
The international legal basis for the arbitration is based under the provision of the UNCLOS. In
Annex VII, Arbitration, Article 11 states that “the award of the arbitral tribunal shall be final and binding
and without appeal. It shall be complied with by the parties to the dispute.” Therefore, China is obliged to
respect and obey the rulings of the tribunal.
The nonappearance by a state does not changes or effects the “final and binding” nature of the
Award. China has asserted both after the release of the 2015 Award on Jurisdiction and the 2016 Award
that the both are “null and void” and have “no binding force,”. For such assertions, there is no legal basis
in UNCLOS.
With regards to the declaration of China that it “neither accepts nor recognizes” the Award. There
is a modest practice of states opting not to accept or recognize, and thus not comply with, decisions of the
ICJ, the International Tribunal for the Law of the Sea (ITLOS), and a tribunal established pursuant to
UNCLOS.
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CASE NO. 4
Nicaragua v. Costa Rica, Rep No. 11/07, Interstate Case 01/06, Inter-Am. Comm. H.R. March 8, 2006
FACTS
The state of Nicaragua forwarded a communication on February 6, 2006 to the Inter-American
Commission on Human Rights alleging that the state of Costa Rica has committed violations the
following:
a) Articles 1(1) (Obligation to respect rights), 8 (Right to a fair trial), 24 (Right to equal protection),
and 25 (Right to judicial protection) of the American Convention on Human Rights (hereinafter
“the Convention” or “the American Convention”); Articles 2, 7, 8, and 28 of the Universal
Declaration of Human Rights
b) Articles II (Right to equality before law) and XVIII (Right to a fair trial) of the American
Declaration of the Rights and Duties of Man
c) Article 9 of the Inter-American Democratic Charter, which refers to the elimination of all forms
of discrimination, where according to Nicaragua, Costa Rica failed to fulfill its duty of protecting
human rights of Nicaraguan Migrant.
On February 13, 2006, the IACHR, in accordance with Articles 45 et seq. of the Convention,
processed the communication and transmitted the communication presented by the State of Nicaragua to
the State of Costa Rica based on the fact that both of the parties deposited their declaration recognizing
the Commission’s competence in receiving and examining from them.
On July 18, 2006 the commission placed itself at the disposal of the parties aiming that to achieve
friendly settlement between the parties and thus it held a hearing in the framework of regular session.
Costa Rica mentioned in that occasion that the initiation of friendly settlement procedure was not timely
but because of Article 41(4) and (6) of its Rules of Procedure, Inter-American Commission decided to
conclude its intervention in the friendly settlement procedure and to continue to process the interstate
communication.
Pursuant to Article 37(3) of its Rules of Procedure, Commission decided to defer its treatment of
admissibility until the debate and decision on the merits since the commission found the allegations to be
groundless.
In order to determine if the evidences where sufficient, the Commission considered it necessary
to receive information from both states on the merits of the allegations to prove the existence of
discrimination. Nicaragua then submitted its evidences to support its claims.
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ISSUE
Whether or not the allegations of the Nicaraguan State concerning violation of the rights enshrined in
Articles 1(1) (Obligation to observe rights), 8 (Right to a fair trial), 24 (Right to equal protection), and 25
(Right to judicial protection) of the American Convention on Human Rights, are admissible under
Articles 46 of the Convention and 31 of the Rules of Procedure of the IACHR.
RULING
No. The commission found that the evidences submitted by Nicaragua to support its allegation of
where insufficient existence of a generalized practice of discrimination against the Nicaraguan migrant
population in Costa Rica, and thus no remedies to repair the violations exist. The commission concluded
that the allegations where inadmissible under Articles 46 of the Convention and 31 of the Rules of
Procedure of the IACHR.
Article 31 of the Rules of Procedure of the IACHR states that “in order to decide on the
admissibility of a matter, the Commission shall verify whether the remedies of the domestic legal system
have been pursued and exhausted in accordance with the generally recognized principles of international
law”. Nicaragua failed to sufficiently convince the commission that all domestic remedies where first
exhausted.
Thus, it is then necessary that the parties must resolve their disputes first at the level of domestic
laws first before they can lift the issue in to the international court.
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CASE NO. 5
Gabcikovo-Nagymaros Case, ICJ Rep. [1997], 40
FACTS
In September 1977, Czechoslovak Socialist Republic and the People's Republic of Hungary under
Budapest Treaty, initiated Gabčíkovo–Nagymaros Dams project on the Danube to prevent catastrophic
floods, improve river navigability and produce clean electricity. The treaty was intended create a cross-
border barrage system between the towns of Czechoslovak Socialist Republic (now Slovak Republic),
People's Republic of Hungary (now Hungary), Gabčíkovo, and Nagymaros.
The Hungarian government was obligated to participate in some construction in Slovakia because
most of the construction was planned to occur in Slovak territory to ensure equal investment by both
sides. The produced electricity was to equally shared between the Hungary and Slovakia.
Article 15.1 of the Budapest Treaty holds significance because it provides that, "the Contracting
Parties shall ensure, by the means specified in the joint contractual plan, that the quality of the water in
the Danube is not impaired as a result of the construction and operation of the System of Locks".
In 1989, due to environmental and economic concerns Hungary suspended the project and tried to
terminate the treaty. In May 1992, Hungary and Slovakia agreed to take their dispute to the International
Court of Justice in The Hague. The newly established Slovak Republic carried on with the project after
Czechoslovakia split up in 1993. Only a part then of the project has been finished in Slovakia.
ISSUE
Whether or not Hungary was entitled to suspend and subsequently abandon the works on the Gabčikovo–
Nagymaros project for which the Treaty on the Construction and Operation of the Gabčikovo–Nagymaros
Barrage.
RULING
No. As laid down in the 1977 treaty, Hungary was not entitled to suspend and subsequently abandon is
obligation in the Gabčíkovo–Nagymaros Dams project. The notification in 1997 of Hungary about
its intention to terminate the treaty did not legally terminate the said agreement thus the treaty
consequently remained effective and governing between the parties, where Slovakia as successor
to Czechoslovakia is a party. As for future actions, the parties must in good faith negotiate about
the prevailing situation in connection to the project for them to decide what remedies they may
employ where both shall be benefited. The are parties are obliged to achieve the objectives of the
Budapest Treaty as they previously agreed upon, unless they agree otherwise. Each party must
compensate each other for the damages they caused, and that the construction and operation of
the work must be settled congruent to the Budapest Treaty.
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