PIMENTEL VS. EXECUTIVE SECRETARY G.R. NO.

158088, JULY 6, 2005

 ROME STATUTE
 Signing of Treaty vs. Ratification
 Significance of Ratification
 Who has power to ratify

FACTS:

The Rome Statute established the ICC which “shall have the power to exercise its jurisdiction over
persons for the most serious crimes of international concern xxx and shall be complementary to the
national criminal jurisdictions.” The Philippines, through Charge d’ Affairs Enrique A. Manalo of the
Philippine Mission to the UN, signed the Rome Statute on Dec. 28, 2000. Its provisions, however,
require that it be subject to ratification, acceptance or approval of the signatory states. Petitioners
now file this petition to compel the Office of the President to transmit the signed copy of the Rome
Statute to the Senate for its concurrence.

ISSUE:
 Whether or not the Executive Secretary and the DFA have a ministerial duty to transmit to the
Senate the copy of the Rome Statute

Ruling:
We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the sole organ
and authority in external relations and is the country’s sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members
of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that “no treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.”

The participation of the legislative branch in the treaty-making process was deemed essential to
provide a check on the executive in the field of foreign relations. By requiring the concurrence of the
legislature in the treaties entered into by the President, the Constitution ensures a healthy system of
checks and balance necessary in the nation’s pursuit of political maturity and growth.

Signing vs. Ratification of Treaty

It should be underscored that the signing of the treaty and the ratification are two separate and
distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as
a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually
performed by the state’s authorized representative in the diplomatic mission. Ratification, on the other
hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by
its representative. It is generally held to be an executive act, undertaken by the head of the state or of
the government.

Purpose of Ratification

Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify
the treaty which it has signed is without basis. The signature does not signify the final consent of the
state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome
Statute itself requires that the signature of the representatives of the states be subject to ratification,
acceptance or approval of the signatory states. Ratification is the act by which the provisions of a
treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a
state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed
by the state’s representative, the President, being accountable to the people, is burdened with the
responsibility and the duty to carefully study the contents of the treaty and ensure that they are not
inimical to the interest of the state and its people. Thus, the President has the discretion even after
the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna
Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of ratification of treaties would be pointless and futile.
It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed
by its plenipotentiaries. There is no legal obligation to ratify a treaty, but it goes without saying that the
refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise,
the other state would be justified in taking offense.

President has the Power to Ratify Treaties

It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is
a serious step that should not be taken lightly, such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has
no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.
The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond
its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome
Statute to the Senate.

PLARIDEL M. ABAYA VS. HON. SECRETARY HERMOGENES E. EBDANE, JR.

FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and
Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting
Secretary FloranteSoriquez. This resolution recommended the award to China Road & Bridge
Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I),
which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with
the lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine
Government pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs
Secretary Siazon, in behalf of their respective governments.

ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is
a kind of a treaty.

Ruling: :
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December
27, 1999 between the Japanese Government and the Philippine Government is an executive
agreement.
An “exchange of notes” is a record of a routine agreement that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being in
the possession of the one signed by the representative of the other.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding,
modus vivendi and exchange of notes all are refer to international instruments binding at international
law.
Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their mutual
relations. Therefore, they are regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.
What the petitioners wanted was that Foreign funded projects also undergo the procurement process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for
foreign funded projects (IRR-B) of the procurement law If we recall the decision of the Abaya vs
Ebdane was used by the DOJ when the DOTC Secretary was asking for an opinion from the former,
during the ZTE [Link] 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.

G.R. NO. 173034             OCTOBER 9, 2007  PHARMACEUTICAL AND HEALTH CARE

ASSOCIATION OF THE PHILIPPINES, PETITIONER,  VS. HEALTH SECRETARY FRANCISCO T.
DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M.
GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; AND ASSISTANT
SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T.
GAKO, RESPONDENTS.

FACTS :
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-
respondent since respondents issued the questioned RIRR in their capacity as officials of said
executive agency.1Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on
October 28, 1986 by virtue of the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of 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
[Link] 1990, 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. On May 15, 2006, the DOH issued herein assailed
RIRR which was to take effect on July 7, 2006.

Issue: . Whether Administrative Order or the Revised Implementing Rules and Regulations (RIRR)
issued by the Department of Health (DOH) is not constitutional;

Ruling:
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

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. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law.

 Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the
land that can be implemented by executive agencies without the need of a law enacted by the
legislature.

SUZETTE NICOLAS Y SOMBILON V. ALBERTO ROMULO, GR NO. 175888, 2009-02-11

Facts:
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces.
He was charged with the crime of rape committed against a Filipina, petitioner herein, sometime on
November 1, 2005
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the
United States, entered into on February 10, 1998, the United States, at its request, was granted
custody of defendant Smith pending the proceedings.
United States Government faithfully complied with its undertaking to bring defendant Smith to the trial
court every time his presence was... required.
RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith guilt
As a result, the Makati court ordered Smith detained at the Makati jail until further orders.
Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents,
purportedly acting under orders of the Department of the Interior and Local Government, and brought
to a facility for detention under the control... of the United States government, provided for under new
agreements between the Philippines and the United States, referred to as the Romulo-Kenney
Agreement... in accordance with the Visiting Forces Agreement signed between our two nations,
Lance Corporal Daniel J. Smith, United States Marine Corps, be returned... to U.S. military custody at
the U.S. Embassy in Manila.
He will be guarded round the clock by U.S. military personnel. The Philippine police and jail...
authorities, under the direct supervision of the Philippine Department of Interior and Local
Government (DILG) will have access to the place of detention to ensure the United States is in
compliance with the terms of the VFA.
Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases
Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained
by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the
United States.
RP-US Military Bases Agreement was never advised for ratification by the United States Senate, a
disparity in treatment, because the Philippines... regarded it as a treaty and had it concurred in by our
Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with the
expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were
finally ceded to the Philippines.
whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed
"under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other...
contracting State."

Issues:
whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed
"under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other...
contracting State."
Petitioners contend that these undertakings violate another provision of the Constitution, namely, that
providing for the exclusive power of this Court to adopt rules of procedure for all courts in the
Philippines (Art. VIII, Sec. 5[5]). They argue that to... allow the transfer of custody of an accused to a
foreign power is to provide for a different rule of procedure for that accused, which also violates the
equal protection clause of the Constitution (Art. III, Sec. 1.).
Ruling:
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,[5] the VFA was duly concurred in by the Philippine Senate and has
been recognized as a treaty by the United States as attested and certified by the duly authorized
representative of the United States... government.
The fact that the VFA was not submitted for advice and consent of the United States Senate does not
detract from its status as a binding international agreement or treaty recognized by the said State. For
this is a matter of internal United States law.
The second reason has to do with the relation between the VFA and the RP-US Mutual Defense
Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence
of both the Philippine Senate and the United States Senate.
Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist
an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA,
which is the instrument agreed upon to provide for the joint RP-US military... exercises, is simply an
implementing agreement to the main RP-US Military Defense Treaty.
The Preamble of the VFA states
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not
necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
Congress under the Case-Zablocki Act within 60 days of its ratification. It is for this reason that... the
US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and
this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the
presence of the US Armed Forces through the VFA is a presence "allowed under" the RP-US Mutual
Defense Treaty.
The VFA provides that in cases of offenses committed by the members of the US Armed Forces in
the Philippines, the following rules apply:
The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the commission of
the offense until completion of all judicial proceedings.
this Court finds no violation of the Constitution.
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some
aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like
Heads of State, diplomats and members of the armed forces contingents of... a foreign State allowed
to enter another State's territory. On the contrary, the Constitution states that the Philippines adopts
the generally accepted principles of international law as part of the law of the land.
Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it
comes to detention as against custody. The moment the accused has to be detained, e.g., after
conviction, the rule that governs is the following provision of the
VFA:
The confinement or detention by Philippine authorities of United States personnel shall be carried out
in facilities agreed on by appropriate Philippines and United States authorities. United States
personnel serving sentences in the Philippines shall have the right to... visits and material assistance.
It is clear that the parties to the VFA recognized the difference between custody during the trial and
detention after conviction, because they provided for a specific arrangement to cover detention.
not only that the detention shall... be carried out in facilities agreed on by authorities of both parties,
but also that the detention shall be "by Philippine authorities."
Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on
the detention of the accused in the United
States Embassy, are not in accord with the VFA itself because such detention is not "by Philippine
authorities."
Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v.
Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by the United
States are not automatically part of their domestic law unless these... treaties are self-executing or
there is an implementing legislation to make them enforceable.
First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the
parties intend its provisions to be enforceable, precisely because the Agreement is intended to carry
out obligations and undertakings under the RP-US
Mutual Defense Treaty.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec.
112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements
registered under this Act within 60 days from their ratification be... immediately implemented.
VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the
International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the
ICJ decision are not self-executing and are not... registrable under the Case-Zablocki Act, and thus
lack legislative implementing authority.
inally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate
Principles:
The rule in international law is that a foreign armed forces allowed to enter one's territory is immune
from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving
foreign military units around the world vary in terms and conditions,... according to the situation of the
parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State
can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the
parties.
As a result, the situation involved is not one in which the power of this Court to adopt rules of
procedure is curtailed or violated, but rather one in which, as is normally encountered around the
world, the laws (including rules of procedure) of one State do not extend or apply
 except to the extent agreed upon - to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed forces.
It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to
require the other contracting State to convert their system to achieve alignment and parity with ours. It
was simply required that the treaty be recognized as a treaty by the... other contracting State.
as held by the US Supreme Court in Weinberger v. Rossi,[13] an executive agreement is a "treaty"
within the meaning of that word in international law and constitutes enforceable domestic law vis-à-vis
the United States. Thus, the
US Supreme Court in Weinberger enforced the provisions of the executive agreement granting
preferential employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
Art. II, Sec. 2 treaties - These are advised and consented to by the US Senate in accordance with Art.
II, Sec. 2 of the US Constitution.
Executive-Congressional Agreements: These are joint agreements of the President and Congress
and need not be submitted to the Senate.
Sole Executive Agreements. - These are agreements entered into by the President. They are to be
submitted to Congress within sixty (60) days of ratification under the provisions of the Case-Zablocki
Act, after which they are recognized by the Congress and may be... implemented.
BAYAN MUNA v. ALBERTO ROMULO. G.R. No. 159618; February 1, 2011.

FACTS: In 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute
which, by its terms, is “subject to ratification, acceptance or approval” by the signatory states.

In 2003, via Exchange of Notes with the US government, the RP, represented by then DFA Secretary
Ople, finalized a non-surrender agreement which aimed to protect certain persons of the RP and US
from frivolous and harassment suits that might be brought against them in international tribunals.

Petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the
Agreement and prays that it be struck down as unconstitutional, or at least declared as without force
and effect.

ISSUE:
[1] Did respondents abuse their discretion amounting to lack or excess of jurisdiction in
concluding the RP-US Non Surrender Agreement in contravention of the Rome Statute?
[2] Is the agreement valid, binding and effective without the concurrence by at least 2/3 of all
the members of the Senate?

RULING:
 The Agreement does not contravene or undermine, nor does it differ from, the Rome Statute.  Far
from going against each other, one complements the other.  As a matter of fact, the principle of
complementarity underpins the creation of the ICC. According to Art. 1 of the Statute, the jurisdiction
of the ICC is to “be complementary to national criminal jurisdictions [of the signatory states].” the
Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes
committed within their respective borders, the complementary jurisdiction of the ICC coming into play
only when the signatory states are unwilling or unable to prosecute.

Also, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and purpose of a treaty. The Philippines is
only a signatory to the Rome Statute and not a State-Party for lack of ratification by the Senate. Thus,
it is only obliged to refrain from acts which would defeat the object and purpose of the Rome Statute.
Any argument obliging the Philippines to follow any provision in the treaty would be premature. And
even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the States is not a State-
Party to the Rome Statute.

The right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history, we
have entered executive agreements covering such subjects as commercial and consular relations,
most favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned
by our courts.

Executive agreements may be validly entered into without such concurrence.  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. 
DISMISSED.
VINUYA V ROMULO
G.R. No. 162230, April 28, 2010
FACTS:
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the
issuance of a writ of preliminary mandatory injunction against the Office of the Executive Secretary,
the Secretary of the DFA, the Secretary of the DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered
with the SEC, established for the purpose of providing aid to the victims of rape by Japanese military
forces in the Philippines during the Second World War.
Petitioners claim that since 1998, they have approached the Executive Department through the DOJ,
DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military
officers who ordered the establishment of the “comfort women” stations in the Philippines. But officials
of the Executive Department declined to assist the petitioners, and took the position that the individual
claims of the comfort women for compensation had already been fully satisfied by Japan’s
compliance with the Peace Treaty between the Philippines and Japan.
Hence, this petition where petitioners pray for this court to (a) declare that respondents committed
grave abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims
for the crimes against humanity and war crimes committed against them; and (b) compel the
respondents to espouse their claims for official apology and other forms of reparations against Japan
before the International Court of Justice (ICJ) and other international tribunals.
Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt
with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.
On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs for former comfort women.
Over the next five years, these were implemented by the Department of Social Welfare and
Development.
ISSUE:
WON the Executive Department committed grave abuse of discretion in not espousing petitioners’
claims for official apology and other forms of reparations against Japan.
RULING:
Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners’ claims against Japan.
Political questions refer “to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure.”
One type of case of political questions involves questions of foreign relations. It is well-established
that “the conduct of the foreign relations of our government is committed by the Constitution to the
executive and legislative–‘the political’–departments of the government, and the propriety of what
may be done in the exercise of this political power is not subject to judicial inquiry or decision.” are
delicate, complex, and involve large elements of prophecy. They are and should be undertaken only
by those directly responsible to the people whose welfare they advance or imperil.
But not all cases implicating foreign relations present political questions, and courts certainly possess
the authority to construe or invalidate treaties and executive agreements. However, the question
whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question.
The President, not Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular and other officials.
The Executive Department has determined that taking up petitioners’ cause would be inimical to our
country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For the to overturn the Executive Department’s determination
would mean an assessment of the foreign policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally committed.
From a municipal law perspective, certiorari will not lie. As a general principle, where such an
extraordinary length of time has lapsed between the treaty’s conclusion and our consideration – the
Executive must be given ample discretion to assess the foreign policy considerations of espousing a
claim against Japan, from the standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and whether further steps are
appropriate or necessary.
In the international sphere, traditionally, the only means available for individuals to bring a claim
within the international legal system has been when the individual is able to persuade a government
to bring a claim on the individual’s behalf. By taking up the case of one of its subjects and by resorting
to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its
own right to ensure, in the person of its subjects, respect for the rules of international law.
Within the limits prescribed by international law, a State may exercise diplomatic protection by
whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting.
Should the natural or legal person on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law. All they can do is resort to national
law, if means are available, with a view to furthering their cause or obtaining redress. All these
questions remain within the province of municipal law and do not affect the position internationally.
Even the invocation of jus cogens norms and ergaomnes obligations will not alter this analysis.
Petitioners have not shown that the crimes committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of
international crimes is an ergaomnes obligation or has attained the status of jus cogens.
The term ergaomnes (Latin: in relation to everyone) in international law has been used as a legal
term describing obligations owed by States towards the community of states as a whole. Essential
distinction should be drawn between the obligations of a State towards the international community
as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very
nature, the former are the concern of all States. In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection; they are obligations ergaomnes.
The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority,
superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the
sense that they are mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority
WHEREFORE, the Petition is hereby DISMISSED.

CHINA NATIONAL MACHINERY & EQUIPMENT CORP. (GROUP), Petitioner,

vs.
HON. CESAR D. SANTAMARIA, in his official capacity as Presiding Judge of Branch 145, Regional
Trial Court of Makati City, et al.,  Respondents
Facts
On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG),
represented by its chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the
North Luzon Railways Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for the
conduct of a feasibility study on a possible railway line from Manila to San Fernando, La Union (the
Northrail Project).
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of
the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU), wherein China
agreed to extend Preferential Buyer’s Credit to the Philippine government to finance the Northrail
Project. The Chinese government designated EXIM Bank as the lender, while the Philippine
government named the DOF as the borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend
an amount not exceeding USD 400,000,000 in favor of the DOF, payable in 20 years, with a 5-year
grace period, and at the rate of 3% per annum.
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote
a letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho) informing him of CNMEG’s
designation as the Prime Contractor for the Northrail Project.
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of
Section I, Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis
(the Contract Agreement). The contract price for the Northrail Project was pegged at USD
421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial
agreement – Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement). In the Loan
Agreement, EXIM Bank agreed to extend Preferential Buyer’s Credit in the amount of USD
400,000,000 in favor of the Philippine government in order to finance the construction of Phase I of
the Northrail Project.
On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with
Urgent Motion for Summary Hearing to Determine the Existence of Facts and Circumstances
Justifying the Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO
against CNMEG, the Office of the Executive Secretary, the DOF, the Department of Budget and
Management, the National Economic Development Authority and Northrail. RTC Br. 145 issued an
Order dated 17 March 2006 setting the case for hearing on the issuance of injunctive reliefs. On 29
March 2006, CNMEG filed an Urgent Motion for Reconsideration of this Order. Before RTC Br. 145
could rule thereon, CNMEG filed a Motion to Dismiss dated 12 April 2006, arguing that the trial court
did not have jurisdiction over (a) its person, as it was an agent of the Chinese government, making it
immune from suit, and (b) the subject matter, as the Northrail Project was a product of an executive
agreement.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEG’s 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.
In the assailed Decision dated 30 September 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.
Issue:
Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.
Ruling:
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.
Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the
act involved – whether the entity claiming immunity performs governmental, as opposed to
proprietary, functions. The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to be sued only when it enters
into business contracts. It does not apply where the contract relates to the exercise of its sovereign
functions.
It was CNMEG that initiated the undertaking, and not the Chinese government. The Feasibility Study
was conducted not because of any diplomatic gratuity from or exercise of sovereign functions by the
Chinese government but was plainly a business strategy employed by CNMEG with a view to
securing this commercial enterprise.
The use of the term “state corporation” to refer to CNMEG was only descriptive of its nature as a
government-owned and/or -controlled corporation, and its assignment as the Primary Contractor did
not imply that it was acting on behalf of China in the performance of the latter’s sovereign functions.
To imply otherwise would result in an absurd situation, in which all Chinese corporations owned by
the state would be automatically considered as performing governmental activities, even if they are
clearly engaged in commercial or proprietary pursuits.
Even assuming arguendo that CNMEG performs governmental functions, such claim does not
automatically vest it with immunity. This view finds support in Malong v. Philippine National Railways,
in which this Court held that “immunity from suit is determined by the character of the objects for
which the entity was organized.”
In the case at bar, it is readily apparent that CNMEG cannot claim immunity from suit, even if it
contends that it performs governmental functions. Its designation as the Primary Contractor does not
automatically grant it immunity, just as the term “implementing agency” has no precise definition for
purposes of ascertaining whether GTZ was immune from suit. Although CNMEG claims to be a
government-owned corporation, it failed to adduce evidence that it has not consented to be sued
under Chinese law. Thus, following this Court’s ruling in Deutsche Gesellschaft, in the absence of
evidence to the contrary, CNMEG is to be presumed to be a government-owned and -controlled
corporation without an original charter. As a result, it has the capacity to sue and be sued under
Section 36 of the Corporation Code.
 An agreement to submit any dispute to arbitration may be construed as an implicit waiver of immunity
from suit.
In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by
implication of state immunity. In the said law, the agreement to submit disputes to arbitration in a
foreign country is construed as an implicit waiver of immunity from suit. Although there is no similar
law in the Philippines, there is a reason to apply the legal reasoning behind the waiver in this case.

SAGUISAG V. EXEC SECRETARY OCHOA JULY 26, 2016 G.R. NO. 212426 EDCA, TREATY,
EXECUTIVE AGREEMENT, INTERNATIONAL AGREEMENT
AUGUST 22, 2018
FACTS:

This is a Resolution on the Motion for Reconsideration seeking to reverse the Decision of this Court in
Saguisag et. al., v. Executive Secretary dated 12 January 2016.

Petitioners claim this Court erred when it ruled that the Enhanced Defense Cooperation Agreement
(EDCA) between the Philippines and the US was not a treaty. In connection to this, petitioners move
that EDCA must be in the form of a treaty in order to comply with the constitutional restriction under
Section 25, Article· XVIII of the 1987 Constitution on foreign military bases, troops, and facilities.
Additionally, they reiterate their arguments on the issues of telecommunications, taxation, and nuclear
weapons.

The principal reason for the Motion for Reconsideration is evidently petitioners’ disagreement with the
Decision that EDCA implements the VFA and Mutual Defense Treaty (MDT).

Petitioners argue that EDCA’s provisions fall outside the allegedly limited scope of the VFA and MDT
because it provides a wider arrangement than the VFA for military bases, troops, and facilities, and it
allows the establishment of U.S. military bases.

ISSUE:

Whether or not EDCA is a treaty.

RULING:

Petitioners detail their objections to EDCA in a similar way to their original petition, claiming that the
VFA and MDT did not allow EDCA to contain the following provisions:

1. Agreed Locations

2. Rotational presence of personnel

3. U.S. contractors

4. Activities of U.S. contractors

We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these provisions.
The very nature of EDCA, its provisions and subject matter, indubitably categorize it as an executive
agreement – a class of agreement that is not covered by the Article XVIII Section 25 restriction – in
painstaking detail. To partially quote the Decision:

Executive agreements may dispense with the requirement of Senate concurrence because of the
legal mandate with which they are concluded.

As culled from the deliberations of the Constitutional Commission, past Supreme Court Decisions,
and works of noted scholars, executive agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements.

They are concluded

(1) to adjust the details of a treaty;

(2) pursuant to or upon confirmation by an act of the Legislature; or

(3) in the exercise of the President’s independent powers under the Constitution.

The raison d’etre of executive agreements hinges on prior constitutional or legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in international
agreements.

International practice has accepted the use of various forms and designations of international
agreements, ranging from the traditional notion of a treaty – which connotes a formal, solemn
instrument – to engagements concluded in modern, simplified forms that no longer necessitate
ratification.

An international agreement may take different forms: treaty, act, protocol, agreement, concordat,
compromis d’arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter,
agreed minute, memorandum of agreement, modus vivendi, or some other form.
Consequently, under international law, the distinction between a treaty and an international
agreement or even an executive agreement is irrelevant for purposes of determining international
rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an optional constitutional directive.
There remain two very important features that distinguish treaties from executive agreements and
translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of
these rules. In turn, executive agreements cannot create new international obligations that are not
expressly allowed or reasonably implied in the law they purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate unlike executive agreements, which are solely
executive actions. Because of legislative participation through the Senate, a treaty is regarded as
being on the same level as a statute. If there is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior. An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty are considered ineffective. Both types of
international agreement are nevertheless subject to the supremacy of the Constitution.

Subsequently, the Decision goes to great lengths to illustrate the source of EDCA’s validity, in that as
an executive agreement it fell within the parameters of the VFA and MDT, and seamlessly merged
with the whole web of Philippine law. We need not restate the arguments here. It suffices to state that
this Court remains unconvinced that EDCA deserves treaty status under the law.

We find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines’ legal
regime through the MDT and VFA. It also fully conforms to the government’s continued policy to
enhance our military capability in the face of various military and humanitarian issues that may arise.

FUJII V CALIFORNIA
The 1952 California Supreme Court case Fujii v. California (38 Cal 2nd 718) overturned California's
historic Alien Land Act, which barred Japanese and other Asian aliens "ineligible to citizenship" from
owning agricultural property. Together with Masaoka v. California, Fujii finally put a stop to decades of
legal discrimination against Asians. The Fujii case also led to a serious public controversy over
whether the United Nations Charter represented a legal basis for striking down state-sponsored
discrimination.
Land Law Background
The Fujii case grew out of California's "Alien Land Act," enacted in 1913, further amended in 1920,
and originally upheld by the U.S. Supreme Court three years later. According to this law (and the
copycat laws subsequently enacted in other Western states) Japanese and other Asian immigrants
who were "ineligible for citizenship" under federal law were forbidden to own agricultural property,
although provisions of the law limiting the right of aliens to act as guardians of property for minor
citizens were successfully challenged in court. The law was widely evaded and seldom enforced
during the prewar period. However, following the wartime exclusion of West Coast Japanese
Americans, California legislators enacted provisions in 1944 and 1945 providing funding for "escheat"
suits to challenge property ownership by Japanese aliens. The goal of the suits was to express
hostility to Japanese Americans and discourage them from returning to California after their release
from camp. Within a few years, some 59 cases had been brought. Even though by 1946 there were
barely 10,000 "aliens ineligible to citizenship" farming in California, most of whom were elderly, these
escheat proceedings left title to land uncertain, and made it onerous and expensive for all Japanese
Americans to obtain insurance or secure funding for improvements. In numerous cases, Japanese
American families were forced to pay a ransom to the state, usually half the assessed value of the
land, in order to quiet title—a profitable racket for the state of California.
In mid-1945, Kajiro and Fred Oyama challenged the law in court, with assistance from the  Japanese
American Citizens League (JACL). In January 1948 the U.S. Supreme Court ruled 6-3 in their favor in
the landmark constitutional case Oyama v. California. However, the Court's majority opinion struck
down the law based on the equal rights of American citizens of Japanese ancestry to receive property
from their alien parents. Although California's attorney general, recognizing that the law would likely
not stand, froze all escheat suits following the Oyama decision, the Alien Land Act remained
theoretically valid as applied against Japanese aliens.
Mounting a Test Case
It was in the face of this uncertainty that Sei Fujii decided to undertake a test case to determine the
law's constitutionality. Fujii, who had immigrated to the United States from Japan as a young man in
1903, was a visible figure in Los Angeles's Little Tokyo, most notably as editor of the crusading daily
newspaper Kashu Mainichi. With assistance from J. Marion Wright, his onetime law school
classmate, and the American Civil Liberties Union (although not the JACL, which he had long
opposed) Fujii purchased a lot in the Boyle Heights district and filed suit to clear title so that he could
build a home there. While this hardly constituted agricultural land, California's Attorney General Fred
Howser stepped into the case and argued that under the Alien Land Act Fujii could not purchase any
property.
The Fujii case was argued before Judge Wilbur C. Curtis in the Los Angeles Superior Court, who in
March 1949 issued a ruling upholding the state law. Fujii and Wright then appealed to the state
supreme court, which remanded the case to the appellate level. Fujii and Wright argued that the Alien
Land Act represented race-based discrimination, which was forbidden both under the 14th
Amendment's Equal Protection clause and the United Nations Charter. Fujii's case was strengthened
by the Oregon Supreme Court, which struck down that state's alien land law in  Kenji Namba v.
McCourt (1949), and by a favorable Superior Court ruling in Masaoka v. California, which addressed
the right of citizens to make gifts of property to alien parents. Nevertheless, most observers expected
the California court to uphold the law, since the U.S. Supreme Court had not specifically overturned
its original 1920s rulings establishing the law's constitutionality, and because the court had previously
validated it in Oyama.
In a surprise ruling, in April 1950 a three-judge panel of the California's District Court of Appeal
unanimously overturned Curtis's lower court ruling. In his opinion, Judge Emmet J. Wilson found that
the alien land law was unconstitutional because it contravened Chapter I, Section I of the United
Nations Charter, which stated that one purpose of the United Nations was "promoting and
encouraging respect for human rights and for fundamental freedoms for all, without distinction as to
race, sex, language, or religion." Since the United States had ratified the Charter in 1945, it took the
form of an international treaty whose provisions took precedence over domestic laws. The law
likewise contravened the UN's Universal Declaration of Human Rights, to which the US was a
signatory.
The ruling unleashed a storm of controversy nationwide. While the Alien Land Act itself found few
defenders, legal scholars and political thinkers nevertheless expressed dismay over the court's
contention that the UN Charter had become fundamental law. Isolationists who worried about
encroachments on national sovereignty denounced the ruling as interference with the nation's
domestic institutions. (Conversely, Admiral Chester Nimitz, an internationalist, praised the decision as
demonstrating American support for the United Nations). Harvard law professor Manley Hudson
argued in an influential law journal article that the court's ruling was mistaken. The provisions of the
UN Charter, he determined, were addressed to the political departments of member states, not their
judiciaries. The provisions were clearly not "self-executing" in the manner of a treaty, but rather
represented a goal to be achieved by legislation.
Attorney General Howser appealed the ruling to California's Supreme Court. In April 1952, by a
narrow 4-3 majority, the California high court struck down the Alien Land Act. In the majority opinion,
Chief Justice Phil Gibson found that the law violated the 14th Amendment, since it had been created
and enforced "as an instrument for effectuating racial discrimination." Although he recognized that the
U.S. Supreme Court had not specifically overruled its previous decisions on the Act's constitutionality,
he proclaimed that following the Oyama and Takahashi decisions, they could no longer be considered
controlling precedent. At the same time, in a widely quoted and praised section of the ruling, Gibson
considered and rejected the argument that the law was invalidated by the UN Charter, since the
provisions of the Charter were "not intended to supersede existing domestic legislation." State
officials decided not to appeal to the U.S. Supreme Court, no doubt realizing that the appeal would
likely be futile.
The state supreme court rulings in Fujii v. California and Masaoka v. California (1952), decided
shortly afterwards, eliminated the last vestiges of the Alien Land Act. Though symbolically important,
their actual impact was questionable, as they came just weeks before Congress passed the
1952 McCarran-Walter Immigration Act, which eliminated the legal category of "immigrant ineligible to
citizenship" on which the law had been based.