WARRANT OF ARREST OF GADAFFI

CONSIDERING accordingly that there are reasonable grounds to

believe that
Muammar Gaddafi is criminally responsible as an indirect co-
perpetrator, under
article 25(3)(a) of the Statute, for the following crimes committed by
Security Forces
under his control in various localities of the Libyan territory, in
particular in
Benghazi, Misrata, Tripoli and other neighboring cities, from 15
February 2011 until
at least 28 February 2011:
murder as a crime against humanity, within the
meaning of article 7(l)(a)
of the Statute; and
i.
persecution as a crime against humanity,
within the meaning of article
7(l)(h) of the Statute;
ii
.
CONSIDERING that, under article 58(1) of the Statute, the arrest of
Muammar
Gaddafi appears necessary at this stage to (i) ensure his appearance
before the Court;
(ii) ensure that he does not continue to use his power to obstruct or
endanger the
investigation, in particular by orchestrating the cover-up of crimes
committed by the
Security Forces; and (iii) prevent him from continuing to use his
power and absolute
control over the Libyan State apparatus to continue the commission
of crimes within
the jurisdiction of the Court;
INCORPORATION CASES

GONZALES V HECHANOVA
The Court is not satisfied that the status of said tracts as alleged executive agreements has been
sufficiently established. The parties to said contracts do not pear to have regarded the same as
executive agreements. But, even assuming that said contracts may properly considered as executive
agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said
agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although
the President may, under the American constitutional system enter into executive agreements
without previous legislative authority, he may not, by executive agreement, enter into a transaction
which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of
the Executive is to enforce laws enacted by Congress. The former may not interfere in the
performance of the legislative powers of the latter, except in the exercise of his veto power. He may
not defeat legislative enactments that have acquired the status of law, by indirectly repealing the
same through an executive agreement providing for the performance of the very act prohibited by
said laws

As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by
providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the
law or the rules of court may provide, final judgments and decrees of inferior courts in — (1) All
cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question". In other words, our Constitution authorizes the nullification of a treaty,
not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of
Congress.

PANGILINAN VS CAYETANO

Treaties may effectively implement the constitutional imperative to protect human rights and
consider social justice in all phases of development—but so can a statute, as Republic Act No. 9851,
the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes
Against Humanity, does.

The president, as primary architect of our foreign policy and as head of state, is allowed by the
Constitution to make preliminary determinations on what, at any given moment, might urgently be
required in order that our foreign policy may manifest our national interest.

On March 15, 2018, the Philippines announced its withdrawal from the International Criminal Court.
On March 16, 2018, it formally submitted its Notice of Withdrawal through a Note Verbale to the
United Nations Secretary-General's Chef de Cabinet. The Secretary General received this
communication the following day, March 17, 2018.
Through these actions, the Philippines completed the requisite acts of withdrawal. This was all
consistent and in compliance with what the Rome Statute plainly requires. By this point, all that
were needed to enable withdrawal have been consummated. Further, the International Criminal
Court acknowledged the Philippines' action soon after it had withdrawn. This foreclosed the
existence of a state of affairs correctible by this Court's finite jurisdiction. The Petitions were,
therefore, moot when they were filed.1 The International Criminal Court's subsequent consummate
acceptance of the withdrawal all but confirmed the futility of this Court's insisting on a reversal of
completed actions

As primary architect of foreign policy, the president enjoys a degree of leeway to withdraw from
treaties. However, this leeway cannot go beyond the president's authority under the Constitution
and the laws. In appropriate cases, legislative involvement is imperative. The president cannot
unilaterally withdraw from a treaty if there is subsequent legislation which affirms and
implements it.

Conversely, a treaty cannot amend a statute. When the president enters into a treaty that is
inconsistent with a prior statute, the president may unilaterally withdraw from it, unless the prior
statute is amended to be consistent with the treaty. A statute enjoys primacy over a treaty. It is
passed by both the House of Representatives and the Senate, and is ultimately signed into law by
the president. In contrast, a treaty is negotiated by the president, and legislative participation is
limited to Senate concurrence. Thus, there is greater participation by the sovereign's democratically
elected representatives in the enactment of statutes.

Thus, the president can withdraw from a treaty as a matter of policy in keeping with our legal
system, if a treaty is unconstitutional or contrary to provisions of an existing prior statute. However,
the president may not unilaterally withdraw from a treaty: (a) when the Senate conditionally
concurs, such that it requires concurrence also to withdraw; or (b) when the withdrawal itself will be
contrary to a statute, or to a legislative authority to negotiate and enter into a treaty, or an existing
law which implements a treaty.

The Rome Statute is a multilateral treaty that established the International Criminal Court, where
the gravest crimes under international law are prosecuted.

On July 17, 1998, the Rome Statute of the International Criminal Court was adopted in a conference
participated in by 120 states.55 It created the International Criminal Court, a permanent
autonomous institution,56 that was given jurisdiction to "investigate, prosecute, and try" individuals
accused of international crimes of genocide, crimes against humanity, war crimes, and the crime of
aggression

The International Criminal Court has an international legal personality, and sits at The Hague in the
Netherlands. It may exercise its functions and powers "on the territory of any [s]tate [p]arty and, by
special agreement, on the territory of any other [s]tate."

ARTICLE 5
Crimes within the jurisdiction of the Court

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this Statute with
respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

The International Criminal Court's jurisdiction is "complementary to national criminal

jurisdictions."79 Complementarity means that the International Criminal Court may only exercise
jurisdiction if domestic courts were "unwilling or unable" to prosecute.Article 17 of the Rome
Statute contemplates these situations:
2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to
the principles of due process recognized by international law, whether one or more of the following
exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the
purpose of shielding the person concerned from criminal responsibility for crimes within the
jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent
with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they
were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent
to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total
or substantial collapse or unavailability of its national judicial system, the State is unable to obtain
the accused or the necessary evidence and testimony or otherwise unable to carry out its
proceedings. (Emphasis supplied)

The International Criminal Court has jurisdiction over natural persons. Criminal liability shall attach
to one who:

(a) Commits such a crime, whether as an individual, jointly with another or through another person,
regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in
its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a
group of persons acting with a common purpose. Such contribution shall be intentional and shall
either:

i. Be made with the aim of furthering the criminal activity or criminal purpose of the group, where
such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

ii. Be made in the knowledge of the intention of the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

(f) Attempts to commit such a crime by taking action that commences its execution by means of a
substantial step, but the crime does not occur because of circumstances independent of the person's
intentions. However, a person who abandons the effort to commit the crime or otherwise prevents
the completion of the crime shall not be liable for punishment under this Statute for the attempt to
commit that crime if that person completely and voluntarily gave up the criminal purpose.
Individual criminal responsibility under the Rome Statute does not affect state responsibility in
international law. Further, the Rome Statute provides additional grounds of criminal responsibility
for commanders and other superiors.

In determining liability under the Rome Statute, a person's official capacity is irrelevant:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In
particular, official capacity as a Head of State or Government, a member of a Government or
parliament, an elected representative or a government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for
reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person,
whether under national or international law, shall not bar the Court from exercising its jurisdiction
over such a person

Article 127 of the Rome Statute provides mechanisms on how a state party may withdraw from it:

1. A State Party may, by written notification addressed to the Secretary-General of the United
Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of
receipt of the notification, unless the notification specifies a later date.

2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this
Statute while it was a Party to the Statute, including any financial obligations which may have
accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal
investigations and proceedings in relation to which the withdrawing State had a duty to cooperate
and which were commenced prior to the date on which the withdrawal became effective, nor shall it
prejudice in any way the continued consideration of any matter which was already under
consideration by the Court prior to the date on which the withdrawal became effective

treaty-making process:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange
of the instruments of ratification. The treaty may then be submitted for registration and publication
under the U.N. Charter, although this step is not essential to the validity of the agreement as
between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to
his authorized representatives. These representatives are provided with credentials known as full
powers, which they exhibit to the other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of the proposed treaty which, together
with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations
may be brief or protracted, depending on the issues involved, and may even "collapse" in case the
parties are unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and for the
purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final
consent of the state in cases where ratification of the treaty is required. The document is ordinarily
signed in accordance with the 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.
(Citations omitted)

The Vienna Convention on the Law of Treaties (Vienna Convention) defines treaties as
"international agreement[s] concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation."

In our jurisdiction, we characterize treaties as "international agreements entered into by the

Philippines which require legislative concurrence after executive ratification. This term may include
compacts like conventions, declarations, covenants and acts."

Treaties under the Vienna Convention include all written international agreements, regardless of
their nomenclature. In international law, no difference exists in the agreements' binding effect on
states, notwithstanding how nations opt to designate the document.

However, Philippine law distinguishes treaties from executive agreements.

Treaties and executive agreements are equally binding on the Philippines. However, an executive
agreement: "(a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with
a narrower range of subject matters." Executive agreements dispense with Senate concurrence
"because of the legal mandate with which they are concluded."They simply implement existing
policies, and are thus entered into:

(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.
 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.

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.

Article 38 of the Statute of the International Court of Justice enumerates the sources of international
law:

a. international conventions, whether general or particular, establishing rules expressly recognized

by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Two constitutional provisions incorporate or transform portions of international law into the
domestic sphere, namely: (1) Article II, Section 2, which embodies the incorporation method; and (2)
Article VII, Section 21, which covers the transformation method. They state:

ARTICLE II
Declaration of Principles and State Policies Principles

....

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all nations.
ARTICLE VII
Executive Department

SECTION 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. (Emphasis supplied)

The sources of international law—international conventions, international custom, general principles

of law, and judicial decisions—are treated differently in our jurisdiction.

Article II, Section 2 of the Constitution declares that international custom and general principles of
law are adopted as part of the law of the land. No further act is necessary to facilitate this:

"Generally accepted principles of international law" refers to norms of general or customary

international law which are binding on all states, i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity, a person's right to life, liberty and due process,
and pacta sunt servanda, among others

In order to qualify as a product of the subsidiary law-creating process, a principle of law must fulfill
three requirements: (1) it must be a general principle of law as distinct from a legal rule of more
limited functional scope, (2) it must be recognized by civilized nations, and (3) it must be shared by a
fair number of states in the community of nations

[T]he doctrine of incorporation which mandates that the Philippines is bound by generally accepted
principles of international law which automatically form part of Philippine law by operation of the
Constitution.

In Kuroda v. Jalandoni, this Court held that this constitutional provision "is not confined to the
recognition of rules and principles of international law as contained in treaties to which our
government may have been or shall be a signatory." The pertinent portion of Kuroda states:

It cannot be denied that the rules and regulations of The Hague and Geneva Conventions form part
of and are wholly based on the generally accepted principles of international law. . . . Such rule and
principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to
the conventions embodying them , for our Constitution has been deliberately general and extensive
in its scope and is not confined to the recognition of rules and principles of international law as
contained in treaties to which our government may have been or shall be a signatory.

Hence, generally accepted principles of international law form part of Philippine laws even if they do
not derive from treaty obligations of the Philippines.

Generally accepted principles of international law, as referred to in the Constitution, include

customary international law. Customary international law is one of the primary sources of
international law under Article 38 of the Statute of the International Court of Justice. Customary
international law consists of acts which, by repetition of States of similar international acts for a
number of years, occur out of a sense of obligation, and taken by a significant number of States. It is
based on custom, which is a clear and continuous habit of doing certain actions, which has grown
under the aegis of the conviction that these actions are, according to international law, obligatory or
right. Thus, customary international law requires the concurrence of two elements: "1 the
established, wide-spread, and consistent practice on the part of the States; and 2 a psychological
element known as opinion juris sive necessitatis (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory by the existence of a rule of
law requiring it."

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.

Treaties become part of the law of the land through transformation pursuant to Article VII, Section
21 of the Constitution ... Thus, treaties or conventional international law must go through a process
prescribed by the Constitution for it to be transformed into municipal law that can be applied to
domestic conflicts.

Article VII, Section 21 does not limit the requirement of senate concurrence to treaties alone. It may
cover other international agreements, including those classified as executive agreements, if: (1) they
are more permanent in nature; (2) their purposes go beyond the executive function of carrying out
national policies and traditions; and (3) they amend existing treaties or statutes

As explained in Pimentel, Jr.:

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. . . .

....

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.

SECTION 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. (Emphasis supplied)

In sum, treaty-making is a function lodged in the executive branch, which is headed by the president.
Nevertheless, a treaty's effectivity depends on the Senate's concurrence, in accordance with the
Constitution's system of checks and balances.

VII

While Senate concurrence is expressly required to make treaties valid and effective, no similar
express mechanism concerning withdrawal from treaties or international agreements is provided
in the Constitution or any statute. Similarly, no constitutional or statutory provision grants the
president the unilateral power to terminate treaties. This vacuum engenders the controversy around
which the present consolidated Petitions revolve.
We are asked to decide whether the President may terminate a treaty under the Constitution
without congressional approval. Resolution of the question may not be easy, but it only requires us
to apply normal principles of interpretation to the constitutional provisions at issue.... The present
case involves neither review of the President's activities as Commander in Chief nor impermissible
interference in the field of foreign affairs. Such a case would arise if we were asked to decide, for
example, whether a treaty required the President to order troops into a foreign country. But "it is
error to suppose that every case or controversy which touches foreign relations lies beyond judicial
cognizance."... This case "touches" foreign relations, but the question presented to us concerns only
the constitutional division of power between Congress and the President

Professor Koh proposed the operation of what he dubbed as the "mirror principle," where "the
degree of legislative approval needed to exit an international agreement must parallel the degree of
legislative approval originally required to enter it."He further said:

Under the mirror principle, the Executive may terminate, without congressional participation,
genuinely "sole" executive agreements that have lawfully been made without congressional input.
But the President may not entirely exclude Congress from the withdrawal or termination process
regarding congressional-executive agreements or treaties that were initially concluded with
considerable legislative input

Having laid out the parameters and underlying principles of relevant foreign concepts, and
considering our own historical experience and prevailing legal system, this Court adopts the
following guidelines as the modality for evaluating cases concerning the president's withdrawal from
international agreements.

First, the president enjoys some leeway in withdrawing from agreements which he or she
determines to be contrary to the Constitution or statutes.

The Constitution is the fundamental law of the land. It mandates the president to "ensure that the
laws be faithfully executed." Both in negotiating and enforcing treaties, the president must ensure
that all actions are in keeping with the Constitution and statutes. Accordingly, during negotiations,
the president can insist on terms that are consistent with the Constitution and statutes, or refuse to
pursue negotiations if those negotiations' direction is such that the treaty will turn out to be
repugnant to the Constitution and our statutes. Moreover, the president should not be bound to
abide by a treaty previously entered into should it be established that such treaty runs afoul of the
Constitution and our statutes.

Thus, a valid treaty or international agreement may be effective just as a statute is effective. It has
the force and effect of law. Still, statutes enjoy preeminence over international agreements. In case
of conflict between a law and a treaty, it is the statute that must prevail.

The second point proceeds from the first. The validity and effectivity of a treaty rests on its being in
harmony with the Constitution and statutes. The Constitution was ratified through a direct act of the
sovereign Filipino people voting in a plebiscite; statutes are adopted through concerted action by
their elected representatives. Senate concurrence is the formal act that renders a treaty or
international agreement effective, but it is not, in substance, the sole criterion for validity and
effectivity. Ultimately, a treaty must conform to the Constitution and statutes.
These premises give the president leeway in withdrawing from treaties that he or she determines to
be contrary to the Constitution or statutes.

Second, the president cannot unilaterally withdraw from agreements which were entered into
pursuant to congressional imprimatur.
When a treaty was entered into upon Congress's express will, the president may not unilaterally
abrogate that treaty. In such an instance, the president who signed the treaty simply implemented
the law enacted by Congress. While the president performed his or her function as primary architect
of international policy, it was in keeping with a statute. The president had no sole authority, and the
treaty negotiations were premised nor only upon his or her own diplomatic powers, but on the
specific investiture made by Congress. This means that the president negotiated not entirely out of
his or her own volition, but with the express mandate of Congress, and more important, within the
parameters that Congress has set.

Consistent with the mirror principle, any withdrawal from an international agreement must reflect
how it was entered into. As the agreement was entered pursuant to congressional imprimatur,
withdrawal from it must likewise be authorized by a law.

Third, the President cannot unilaterally withdraw from international agreements where the
Senate concurred and expressly declared that any withdrawal must also be made with its
concurrence.

The Senate may concur with a treaty or international agreement expressly indicating a condition that
withdrawal from it must likewise be with its concurrence. It may be embodied in the same resolution
in which it expressed its concurrence. It may also be that the Senate eventually indicated such a
condition in a subsequent resolution. Encompassing legislative action may also make it a general
requirement for Senate concurrence to be obtained in any treaty abrogation. This may mean the
Senate invoking its prerogative through legislative action taken in tandem with the House of
Representatives—through a statute or joint resolution—or by adopting, on its own, a comprehensive
resolution. Regardless of the manner by which it is invoked, what controls is the Senate's exercise of
its prerogative to impose concurrence as a condition

NATURAL LAW AND THE CONSTITUTION

PCIB VS NAMAWU-MIF

all benefits of the employees under a Collective Bargaining Agreement, like severance pay,
educational allowance, accrued vacation leave earned but not enjoyed, as wen as workmen's
compensation awards and unpaid salaries for services rendered, fan under the term 'wages'
which enjoy first preference over all other claims against the employer

The reason behind the provisions of the Labor Code giving preference to claims of labor in the
liquidation of a business or industrial concern is patent and manifest. It is but humane and
partakes of the divine that labor, as human beings, must be treated over and above chattels,
machineries and other kinds of properties and the interests of the employer who can afford and
survive the hardships of life better than their workers. Universal sense of human justice, not to
speak of our specific social justice and protection to labor constitutional injunctions dictate the
preferential lien that the above provisions accord to labor.

In the most legal sense and, again, consonant with the principles of social justice and protection
to labor under the Constitution of the Philippines above referred to the NLRC decision was only
confirmatory of such right, not unlike the juridical effect of the issuance of a Torrens title over a
piece of land already covered by a legitimate Spanish title. And so, when petitioners acquired the
properties of PIM in the foreclosure sales, those properties were already encumbered in favor of
the Union members/claimants by force of law. Worse, petitioners were well aware they were
foreclosing on properties of a mortgage debtor who had already secured from the Ministry of
Labor a corresponding clearance for shutdown due to liquidation, and, needless to say,
petitioners are presumed to know the law on the matter already referred to above.

DELA LLANA VS ALBA

petitioners contend that the abolition of the existing inferior courts collides with the security of tenure
enjoyed by incumbent Justices and judges under Article X, Section 7 of the Constitution.

Moreover, this Court is em powered "to discipline judges of inferior courts and, by a vote of at least
eight members, order their dismissal." 76 Thus it possesses the competence to remove judges. Under
the Judiciary Act, it was the President who was vested with such power. 77 Removal is, of course, to
be distinguished from termination by virtue of the abolition of the office. There can be no tenure to a
non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an
office with an occupant who would thereby lose his position. It is in that sense that from the standpoint
of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the
incumbents of inferior courts abolished, the effect is one of separation. As to its effect, no distinction
exists between removal and the abolition of the office. Realistically, it is devoid of significance. He
ceases to be a member of the judiciary. In the implementation of the assailed legislation, therefore, it
would be in accordance with accepted principles of constitutional construction that as far as
incumbent justices and judges are concerned, this Court be consulted and that its view be accorded
the fullest consideration. No fear need be entertained that there is a failure to accord respect to the
basic principle that this Court does not render advisory opinions. No question of law is involved. If
such were the case, certainly this Court could not have its say prior to the action taken by either of the
two departments. Even then, it could do so but only by way of deciding a case where the matter has
been put in issue. Neither is there any intrusion into who shall be appointed to the vacant positions
created by the reorganization. That remains in the hands of the Executive to whom it properly
belongs.

this Court is called upon to reconcile or harmonize constitutional provisions. To be specific, the
Batasang Pambansa is expressly vested with the authority to reorganize inferior courts and in the
process to abolish existing ones. As noted in the preceding paragraph, the termination of office of
their occupants, as a necessary consequence of such abolition, is hardly distinguishable from the
practical standpoint from removal, a power that is now vested in this Tribunal. It is of the essence of
constitutionalism to assure that neither agency is precluded from acting within the boundaries of its
conceded competence. That is why it has long been well-settled under the constitutional system we
have adopted that this Court cannot, whenever appropriate, avoid the task of reconciliation. As Justice
Laurel put it so well in the previously cited Angara decision, while in the main, "the Constitution has
blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and
the judicial departments of the government, the overlapping and interlacing of functions and duties
between the several departments, however, sometimes makes it hard to say just where the one
leaves off and the other begins."

HARD LAW AND SOFT LAW

ARIGO VS SWIFT

a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known
as the Rules of Procedure for Environmental Cases (Rules), involving violations of environmental
laws and regulations in relation to the grounding of the US military ship USS Guardian over the
Tubbataha Reefs.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In
December 2012, the US Embassy in the Philippines requested diplomatic clearance for the said
vessel "to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic
Bay for the purpose of routine ship replenishment, maintenance, and crew liberty." while
transiting the Sulu Sea, the ship ran aground on the northwest side of South Shoal of the
Tubbataha Reefs, about 80 miles east-southeast of Palawan. No cine was injured in the incident,
and there have been no reports of leaking fuel or oil.

whether this Court has jurisdiction over the US respondents who did not submit any pleading or
manifestation in this case.

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-
suability of the State, is expressly provided in Article XVI of the 1987 Constitution which states:
17

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto, we discussed the principle of state immunity from
18

suit, as follows:

The rule that a state may not be sued without its consent, now · expressed in Article XVI, Section
3, of the 1987 Constitution, is one of the generally accepted principles of international law that
we have adopted as part of the law of our land under Article II, Section 2. x x x.

Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the law of every civilized state as a
condition and consequence of its membership in the society of nations. Upon its admission to
such society, the state is automatically obligated to comply with these principles in its relations
with other states.

As applied to the local state, the doctrine of state immunity is based on the justification given by
Justice Holmes that ''there can be no legal right against the authority which makes the law on
which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical
reasons for the enforcement of the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem,
non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary disposition would, in the language of a celebrated case, "unduly vex the
peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]

While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in
the discharge of their duties. The rule is that if the judgment against such officials will require the
state itself to perform an affirmative act to satisfy the same,. such as the appropriation of the
amount needed to pay the damages awarded against them, the suit must be regarded as against
the state itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA
120] In such a situation, the state may move to dismiss the comp.taint on the ground that it has
been filed without its consent

This traditional rule of State immunity which exempts a State from being sued in the courts of
another State without the former's consent or waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (Jure imperil") from private, commercial and
proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State immunity
extends only to acts Jure imperii. 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. 24
Considering that the satisfaction of a judgment against said officials will require remedial actions
and appropriation of funds by the US government, the suit is deemed to be one against the US
itself. The principle of State immunity therefore bars the exercise of jurisdiction by this Court over
the persons of respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the
conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No.
10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article
31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained that while
historically, warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31
of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules
and regulations of the coastal State regarding passage through the latter's internal waters and
the territorial sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of
long-standing policy the US considers itself bound by customary international rules on the
"traditional uses of the oceans" as codified in UNCLOS, as can be gleaned from previous
declarations by former Presidents Reagan and Clinton, and the US judiciary in the case of United
States v. Royal Caribbean Cruise Lines, Ltd. 27

The international law of the sea is generally defined as "a body of treaty rules arid customary
norms governing the uses of the sea, the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. It is a branch of public international law, regulating the
relations of states with respect to the uses of the oceans." The UNCLOS is a multilateral treaty
28

which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified
by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of the
60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty
(mare clausum) and the principle of freedom of the high seas (mare liberum). The freedom to
29

use the world's marine waters is one of the oldest customary principles of international law. The
30

UNCLOS gives to the coastal State sovereign rights in varying degrees over the different zones
of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive
economic zone, and 5) the high seas. It also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty
extends to the air space over the territorial sea as well as to its bed and subsoil. 32

In the case of warships, as pointed out by Justice Carpio, they continue to enjoy sovereign
33

immunity subject to the following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith which is
made to it, the coastal State may require it to leave the territorial sea immediately.

Article 31
Responsibility of the flag State for damage caused by a warship

or other government ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State
resulting from the non-compliance by a warship or other government ship operated for non-
commercial purposes with the laws and regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this Convention or other rules of international
law.

Article 32

Immunities of warships and other government ships operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for non-
commercial purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our
internal waters with resulting damage to marine resources is one situation in which the above
provisions may apply.

The invocation of US federal tort laws and even common law is thus improper considering that it
is the VF A which governs disputes involving US military ships and crew navigating Philippine
waters in pursuance of the objectives of the agreement.

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not
to special civil actions such as the present petition for issuance of a writ of Kalikasan

The invocation of US federal tort laws and even common law is thus improper considering that it
is the VF A which governs disputes involving US military ships and crew navigating Philippine
waters in pursuance of the objectives of the agreement.

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not
to special civil actions such as the present petition for issuance of a writ of Kalikasan

The question whether the Philippine certiorari. (Vinuya v. Romulo G.R. No.
government 162230,
should espouse claims of its nationals April 28, 2010).
against a
foreign government is a foreign relations What is the act of state
matter, doctrine?
the authority for which is demonstrably Courts of one country will not sit in
committed judgment
by our Constitution not to the courts but onthe acts of the government of another
to the in due
political branches. In the Comfort deference to the independence of
Women Case, sovereignty
the Executive Department has decided of every sovereign State (PCGG v.
that it is to Sandiganbayan,G.R. No. 124772, August
the best interest of the country to waive 14,
all claims 2007).
of its nationals for reparations against The Act of State doctrine is one of the
Japan in the methods
Treaty of Peace of 1951. The wisdom of bywhich States prevent their national
such courts from
decision is not for the courts to question; deciding disputes which relate to the
thus, said internal
determination by the Executive affairs of another State, the other two
Department being
cannot be questioned through a petition immunity and non-justiciability. It is an
for avoidance
technique that is directly related to a the adjudication of disputes relating to
SWaWe¶V legislative
obligation to respect the independence or other governmental acts which a
and foreign State
equality of other States by not requiring has performed within its territorial limits.
them to submit to adjudication in a (PCGG
national court or to v.Sandiganbayan, G.R. No. 124772,
settlement of their disputes without their August 14,
consent. 2007)
It requires the forum court to exercise
restraint in

What is the doctrine of state immunity?

It refers to a principle by which a state, its agents,
and property are immune from the jurisdiction of
another state (MAGALLONA).
This principle is premised on the juridical equality
of states, according to which a state may not
impose its authority or extend its jurisdiction to
another state without the consent of the latter
through a waiver of immunity.
Thus, domestic courts must decline to hear cases
against foreign sovereigns out of deference to their
role as sovereigns.
What are the types of immunity?
1. Absolute sovereign immunity ± where a
state cannot be sued in a foreign court no
matter what the act it is sued for; or
2. Restrictive sovereign immunity ± wherea
state is immune from suits involving
governmental actions (jure imperii), but not
from those arising from commercial ornongovernmental activity (jure gestionis).
(Bernas, Public International Law, 2009)