Philippine Materials in International Law

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 Brill’s Asian Law Series

Series Editors

Matthias Vanhullebusch, Shanghai Jiao Tong University

Weidong Ji, Shanghai Jiao Tong University
Jiaxiang Hu, Shanghai Jiao Tong University

Editorial Board

Shaheed Sardar Ali, University of Warwick

Charles Booth, University of Hawaii at Manoa
William Butler, Pennsylvania State University
Simon Chesterman, National University of Singapore
Andrew Harding, National University of Singapore
Martin Lau, School of Oriental and African Studies
Penelope Nicholson, University of Melbourne
Raul Pangalangan, International Criminal Court
Jeong-​Ho Roh, Columbia University

volume 11

The titles published in this series are listed at brill.com/​asla

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Philippine Materials in
International Law

By

Raul C. Pangalangan

LEIDEN | BOSTON

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The Library of Congress Cataloging-​in-​Publication Data is available online at https://​catalog.loc.gov

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface.

issn 2214-​6 547

isbn 978-​9 0-​0 4-​4 6971-​6 (hardback)
isbn 978-​9 0-​0 4-​4 6972-​3 (e-​book)

Copyright 2022 by Koninklijke Brill nv, Leiden, The Netherlands.

Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink,
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 For my parents, Ernesto and Julieta
Even now, when I write, I imagine you reading,
And wonder what you will say

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 Raul C Pangalangan - 978-90-04-46972-3
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Contents


Foreword xi

Acknowledgements xiii

Note to the Reader xv


Introduction 1

1 
Constituting the Philippine State in International Law 4
Overview 4
From the August 1896 Uprising to the December 1897 Peace
Agreement 5
America Wages War on Spain and Brings Aguinaldo to Manila 5
The U.S. Takes Manila and Spain Cedes the Philippine
Archipelago 6
Aguinaldo’s Government Protests the U.S.–​Spain Negotiations over
the Philippines 6
i  Declaration of a State of War by Governor-​General Ramón Blanco
(Martial Law Proclamation) (1896) 9
ii  Act of Agreement Adopted for the Pacification of the Island of
Luzon (Pact of Biak-​na-​Bato) (1897) 10
iii Declaration of Philippine Independence (1898) 12
iv  U.S. President William McKinley: Messages on the Philippine
Campaign 14
v  Basis for Establishment of Peace (Protocol of Peace) (1898) 21
vi  Treaty of Peace between Spain and the United States (Treaty of
Paris) (1898) 21
vii Treaty between the Kingdom of Spain and United States of
America for Cession of Outlying Islands of the Philippines (Cession
Agreement) (1900) 22
viii 
Felipe Agoncillo’s Official Protest against the Paris Peace Treaty
(1898) 22
ix  Aguinaldo’s Manifesto Protesting the United States’ Claim of
Sovereignty over the Philippines (1899) 25
x  Political Constitution of the Republic (Malolos Constitution)
(1899) 26
xi  Proclamation on U.S. President Theodore Roosevelt’s Pardon of
the People of the Philippine Archipelago (Amnesty Proclamation)
(1902) 27
xii The Philippine Autonomy Act (Jones Law) (1916) 29

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viii Contents

xiii 
Philippine Independence Act (Tydings–​McDuffie Act) (1934) 29
xiv U.S. President Harry S. Truman’s Proclamation of Philippine
Independence (1946) 31
xv  Philippine Statute Changing Date of Philippine Independence
Day from July 4 (from the Date of Truman’s Proclamation)
to June 12 (from the Date of Aguinaldo’s 1898 Declaration of
Independence) 31

2 
The Armed Conflict with the United States before the Courts and
Courts-​Martial 32
 Overview 32
 Courts-​Martial for Breaches of the Laws of War 33
 Arbitral Proceedings over Damages Caused by the “Insurgents” 36
 U.S. Amnesty of the “Insurgents” 36
i  Courts-​Martial by the United States (1901–​02) 37
ii  International Arbitration Arising from the Armed Conflict 62
iii Cases Decided by Philippine Courts 68

3 
National Territory 74
 Overview 74
 Terrestrial Claims 74
 Maritime Territory 76
i  The National Territory vis-​à-​vis Other States 85
ii  The National Territory vis-​à-​vis Claims of Internal Autonomy 127

4 
The Philippines and the International Court of Justice 139
 Overview 139
 The Philippine Submission to Compulsory Jurisdiction 140
 1982 Manila Declaration 141
 Philippine Participation in the Work of the Court 141
i  Philippine Declaration Submitting to Compulsory Jurisdiction
(1972) 143
ii  Manila Declaration on the Peaceful Settlement of International
Disputes 144
iii Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v.
Malaysia) (Permission to Intervene by the Philippines) (2001) 146

5 
Sources of International Law 157
 Overview 157
 Key Constitutional Clauses 158
 Executive Agreements 161

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Contents ix

 Role of the Legislative Branch 162

 “Soft Law” 163
 Recommendations by Human Rights Treaty Bodies 163
 Termination and Withdrawal from a Treaty 164
i  i cj Statute 167
ii The Treaty Clause in Relation to the Incorporation Clause 167
iii 
Non-​treaty Sources of International Obligation 172
iv Unilateral Declarations: Province of North Cotabato v. Government
of the Republic of the Philippines Peace Panel on Ancestral Domain
(2008) 185
v  Recommendations by Human Rights Treaty Bodies: Felipe and
Evelyn Pestaño, Communication No. 1619/​2007 (Views of the
Human Rights Committee, 2010) 188
vi “Soft Law” 192
vii 
Treaties 201

6 
U.S. Military Bases 243
 Overview 243
1  1987 Constitution of the Republic of the Philippines 245
iI  Philippine Commonwealth and Independence Act (1934) 245
iIi Treaty of General Relations between the Republic of the
Philippines and the United States of America (1946) 246
iv  Bayan v. Zamora (2000) 246
v  Lim v. Executive Secretary (2002) 250
vi  Nicolas v. Romulo (2009) 252
vii Saguisag v. Ochoa, Jr. (2016) 254
viii 
Opinions of the Secretary of Justice: Other Military Agreements
Treated as Mere Executive Agreements 256

7 
Human Rights Cases from the Marcos Dictatorship 262
 Overview 262
 Reparations Claims in U.S. Courts under the Alien Tort Claims
Act 263
 Procedural Impediments to Enforcement in Philippine
Courts 263
 Competing Claims over the Marcos Assets: The Government’s
Claim for Forfeiture Stolen Wealth versus The Human Rights
Victims’ Claim for Reparations 264
 Legislative Relief for the Marcos Human Rights Victims 265
 Historical Revisionism 266

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x Contents

i Human Rights Victims’ Claims in U.S. Courts under the U.S. Alien
Tort Claims Act and Their Enforcement in Philippine Courts 268
ii 
Historical Revisionism through the Courts 302

8 
Immunities 309
 Immunity of States 310
 Immunity of International Organizations 312
i States 314
ii 
International Organizations 330

9 
Extradition 342
 The Philippines as the Requested State 342
i  The Philippines as the Requested State 349
ii  The Philippines as the Requesting State: Philippine Request for the
Extradition of Rodolfo Pacificador (2002) 367

10 
International Criminal Law 375
 Extra-​territorial Criminal Jurisdiction: Piracy in the High
Seas 375
 Crimes Committed during World War ii 376
 Command Responsibility 379
 The International Criminal Court 383
 The Legal Treatment of Armed Groups: Overlap between the
Domestic Crime of Rebellion and ihl Rules on Non-​international
Armed Conflicts 389
i  Extra-​territorial Criminal Jurisdiction: People v. Lol-​lo and Saraw
(1922) 393
ii  Crimes Committed during wwii 395
iii Command Responsibility 419
iv  The International Criminal Court 431
v  The Application of International Law to Armed Rebel Groups in
the Philippines 464


Index 483

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Foreword

This is an enlightening book and one that makes an important contribution

not only in relation to international law in The Philippines but to the overall
history of international law. That body of law is complex and multi-​faceted,
and many aspects of it are clearly devoted to trying to uphold fundamental val-
ues ranging from the self-​determination of peoples, to the protection of state
sovereignty, respect for universal human rights, and protection of the environ-
ment. The materials in this collection provide ample evidence of the various
ways in which these values have been both challenged and upheld in relation
to and by The Philippines.
But there is no point in providing a sanitized history that leaves out the
other side of the balance sheet. For all the high-​minded idealism reflected in
many of the principles promoted by international law, it has also sometimes
gone hand in hand with an imperialist agenda of one type or another. That
agenda inevitably has important geographical dimensions in the sense that, in
centuries past, it sought to rationalize and justify key aspects of colonization
and the resulting colonial rule and economic exploitation, and in the present
century it still too often privileges the interests of a handful of powerful coun-
tries over those of the vast majority of states. As this collection demonstrates,
The Philippines, from its struggle to gain independence from Spain and the
United States to its challenges in relation to maritime boundaries in the South
China Sea, has often been at the forefront of efforts to push back against these
problematic tendencies.
Because international law’s influence and impact are complicated, its role in
the history of any particular state cannot be meaningfully recounted in mono-
chromatic terms. There will be many episodes in which the rule of law, appro-
priately defined, can be said to have been vindicated. There will be others in
which that was clearly not at all the outcome of the interplay of forces. In other
words, a state like The Philippines is likely to have had a chequered history of
engagement with international law. There will have been occasions when it
contributed significantly to legitimating and strengthening it, and other occa-
sions on which it will have acted in either willful or negligent disregard for
its obligations. It is greatly to the credit of the present collection of cases and
materials that it contains some of the principal illustrations of these conflict-
ing tendencies that are to be found in the long and winding history of the many
interactions of successive Philippines’ Governments with international law.
This collection of materials that Judge Pangalangan has so meticulously
selected and carefully edited traces not only the eventful history of The

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xii Foreword

Philippines but also its disproportionately important role in reflecting many of

the dynamics at play in the field of international law as it has developed since
the late nineteenth century. It also demonstrates the extent to which jurists
and diplomats from The Philippines have played an outsized role in key devel-
opments in the field over the course of the past century.
The considerable virtue of this book is that it presents the actual primary
materials that give the most authentic picture of this history, rather than
obliging the reader to take the author’s word as to the significance of different
incidents, episodes, cases and official statements. As a result, the reader can
judge for herself the extent to which the principles of international law can be
said to have penetrated Philippine legal discourse and, conversely, the ways in
which Philippine practice has contributed to shaping international law doc-
trine. The resulting picture shows, through actual cases and controversies, the
times when Filipino scholars, judges, lawyers and activists either embraced or
rejected, or cleverly sidestepped, international legal norms.
By bringing together a widely scattered array of primary materials, and by
explaining carefully their significance in relation to one another, or in other
words by putting them into their broader context, Judge Pangalangan has also
performed an important service that will be of great benefit to future genera-
tions of researchers and legal scholars and historians.
Judge Pangalangan is one of that highly distinguished group whose work
over a period of some 35 years has touched on a great many of the key areas
of international law. He has done his country proud, earning both the high-
est prize for students studying international law at Harvard Law School and
then being the first Filipino to receive the degree of Doctor of Juridical Science
(s.j.d.) from the same school. Most recently, during his tenure as a judge of
the International Criminal Court, he served with considerable distinction in
landmark cases.

Philip Alston
John Norton Pomeroy Professor of Law
New York University School of Law

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Acknowledgements

I thank the University of the Philippines (u.p.) College of Law for providing
support for this project, and for having served as my intellectual home as a stu-
dent and faculty member. When, more than thirty five years ago, former Law
Dean Irene R. Cortes, the country’s first woman law dean and at that time the
University’s Academic Vice-​President, invited me to join the faculty upon my
graduation from the law school, I had scarcely realized that she was actually
guiding me back to my passion for the “life of the mind.”
My ll.m. thesis adviser at Harvard, Professor Philip G. Alston (now at n.y.u.
School of Law), took time from his wide-​ranging commitments to write the
Foreword. I had read his writings even before I came to Harvard, and I knew
early on that I wanted to write my thesis under his supervision. I have since
constantly turned to him for scholarly guidance. I especially thank Philip for
understanding the unique challenges that I faced when I returned to Manila to
be a law professor, in a land where scholars are unheeded.
I thank former Chief Justice Artemio v. Panganiban of the Supreme Court of
the Philippines, who helped me understand the work of judges and of courts,
by which I sought to contribute to the work of the International Criminal Court
and the project of international criminal justice.
I acknowledge two u.p. Presidents, namely, political scientist Francisco
Nemenzo Jr. who, as then Dean of the College of Arts and Sciences, offered
me my first academic appointment as Political Science Instructor and, as
President, appointed me as Law Dean, and lawyer and statesman Edgardo
J. Angara, without whose support I could not have taken up Harvard’s offer of
admission and set me on the path that I have taken. Looking back, it is amazing
how they sustained their support and counsel for me long after I was no longer
junior faculty.
I also recognize my intellectual debt to my earlier mentors. I recall the many
conversations with my doctoral dissertation adviser, Professor Henry Steiner
and founder of Harvard Law School’s Human Rights Program, who guided me
with patience as I fused my political commitment to human rights and my
academic fascination with international law.
My journey in this field began with my very first professor in Public
International Law at u.p., Dean Merlin M. Magallona, likewise my predecessor
as Law Dean. I feature his writings and note his icj oral arguments in this vol-
ume in homage to him as a scholar, but here I acknowledge him expressly as
teacher and intellectual comrade.

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xiv Acknowledgements

I have turned to colleagues with requests for either assistance or clarity on

some of the legal materials: my friend and icc colleague Judge Kim Prost from
Canada; the historian Professor Ambeth Ocampo of the Ateneo University;
Professor Emeritus Ma. Luisa Camagay, former Chair of the u.p. History
Department; Dr. Rachel a.g. Reyes, historian of South East Asia and newspa-
per columnist; and Professor Romel Bagares of the Lyceum of the Philippines
University and the Philippine Society of International Law.
I acknowledge the help I have received from the libraries of the u.p. College
of Law in Quezon City, the Peace Palace at The Hague, and the International
Criminal Court likewise at The Hague, and Filipino Law Librarians Lily
Echiverri and Nelia Balagapo. I also remember warmly the late u.p. Law
Librarian, Professor Antonio Santos and the many times in the past when
I sought his help.
I give special thanks to the research assistant who saw this book to
print, Isabel L. Guidote (u.p. j.d. 2016, kcl m.a. 2020, Harvard ll.m. 2022
(expected)), who came into this project with the highest commendations and
lived up to them. I especially thank Isabel for responding to my last-​minute
questions and revisions that persisted, alas, into her ll.m. year at Harvard.
I also thank Paolo Miguel Q. Bernardo (u.p. j.d. 2015), who was my research
assistant when I was nominated to the Court, who forged on with the work up
till the time I assumed office.
I could not have sustained my scholarly life without my wife Elizabeth,
highly accomplished scholar and author in her own right, who inspired me
to finish this book. It took her gentle reminders to make me find the time to
write, and her charm, to enjoy the writing. I also thank our sons Paco, Gabriel,
Raphael and Miguel; daughters-​in-​law Marielle and Trizha; and granddaugh-
ters Chesca, Ashley and Cara Isabela, for compelling me to hope and strive for
a future world more just and humane, and congenial to their worthiest dreams.

RCP
The Hague

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newgenprepdf

Note to the Reader

Below are brief pointers to help the reader understand the materials and some
local terms used in Philippine legal documents.
1. Each chapter begins with an introductory essay that summarizes the
documents contained in the body of that chapter. The source of those
documents is footnoted in the body of the chapter, not in the introduc-
tory essay.
2. When the documents themselves contain citations or references, I have
as far as practicable skipped them with the note “[citations omitted]”.
3. When the Supreme Court refers to the ponente, it means the justice who
served as case rapporteur and who wrote the decision, and ponencia,
the decision itself. Further on this point, the word fiscal refers to the
prosecutor.
4. Older Supreme Court decisions refer to Muslim Filipinos as the Moro, the
term historically used by the Spanish authorities. However, in the intro-
ductory essay, I use the term Muslim Filipinos.
5. The Supreme Court also uses the acronym rp to refer to the Republic of
the Philippines. More contemporary documents however would use ph
instead.
6. In Supreme Court cases where the validity of a law is challenged, the
nominal respondent is the “Executive Secretary”, or the chief of the
President’s Cabinet. In order to avoid confusion in case titles carrying the
same nominal respondent, as far as practicable, I have used the name of
the actual Executive Secretary named as the Respondent in a case.
7. Likewise, in the excerpts, I have retained the British spelling when that
appears in the original text.
8. For the decisions by the International Court of Justice and the Permanent
Court of Arbitration, I have excerpted verbatim from the official summa-
ries issued by these courts’ respective registries, to ensure the impartial-
ity of the resulting text.

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Introduction

I have taught Public International Law for almost three decades, during which
I used the classic readings that embody the canons of the discipline, typically
derived from traditional “Western” sources, authoritative but estranged from
Asian and Philippine milieus, reinforcing the view that international law is
imposed from outside, alien, colonial, estranged from the native soul.
Along the way, however, I assembled a rich collection of primary materials
in international law relating to the Philippines, showing that the law of nations
has been part of the life of this nation from its founding after the Philippine
independence revolution that began 1896. It played a vital role throughout the
subsequent century to the present: through the Second World War, the resto-
ration of independence, the persistence of U.S. military bases, the dark years
of terror and plunder under the Marcos dictatorship, and the erosion of the
post-​Marcos normative consensus regarding human rights and the rule of law.
It is my hope that these materials will enable Filipinos to find the place of the
nation within the larger scheme of international law and enlist international
law to advance their national interest.
I also hope to belie the persistent notion of an international law discon-
nected from and even hostile to the Philippines. The actual treaties, inter-
national and domestic cases and arbitral awards, and declarations should
demonstrate that international law has deep roots in Philippine life and his-
tory, showing that Filipino lawyers have time and again owned, deployed and
developed international law rules as part of domestic law or as the law govern-
ing the country’s relations with other states and with the larger community of
nations. In recent history, the shining moment of the Philippines in interna-
tional law is the 2016 decision by the Permanent Court of Arbitration at The
Hague on the dispute with China, a victory that couldn’t have been won with-
out what Foreign Secretary Albert del Rosario called the “equalizing power of
international law.”1
Moreover, these materials embody the full range of homegrown interpre-
tations of international law, and will help academics and practitioners alike
understand where specific international law rules stand in Philippine law.
I have deliberately used excerpts, rather than mere summaries, of the col-
lected legal material. The verbatim texts, though edited, enable the reader to

1 Albert F. del Rosario, Statement before the Permanent Court of Arbitration on

Maritime Entitlements (7 July 2015) at https://​www.americanrhetoric.com/​speeches/​
albertdelrosariopermanentcourtofarbitrationsouthchinasea.htm.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004469723_002

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2 Introduction

read and discern for himself the meaning of the material. Some of these are
rarely read or accessible in the original text (e.g., the court-​martial records of
U.S. atrocities during the Philippine-​American War). But even those that are
widely known (e.g., the saga of the U.S. litigation by the Marcos human rights
victims) are more often encountered through secondary sources that fail to
show how international law either helped or impeded justice. Moreover, the
actual text gives the reader a better sense of what, for instance, a court was
actually saying or, conversely, struggling not to say (e.g., the thorny issue of
jurisdictional immunities of U.S. military personnel).
For the practitioner, the book draws a thread through disparate Supreme
Court decisions spread over time that show how the Court has flipflopped on
legal doctrine (e.g., extradition, immunities of international organizations,
or the domestic status of both treaty and non-​treaty obligations), or miscon-
strued the true meaning of the Constitution (the legal effect of Senate ratifi-
cation of a treaty, or the “incorporation” of international customary law). It
brings together the mass of international law-​related Philippine constitutional
clauses and statutes, and decisions by local, foreign and international courts
and arbitral bodies.
Finally, legal scholars and historians, both Filipino and foreign, will find in
these pages the changing fates of nations and legal doctrines. At the outset,
even the United States itself, colonial successor to Spain, was at best equiv-
ocal, and at worst disingenuous, on the question whether an independent
Philippine republic had indeed come to exist in 1898. The principle of com-
mand responsibility now globally accepted actually began in a Philippine case,
that of Japanese General Tomoyuki Yamashita after World War ii. However, it
featured strong dissents in the Supreme Courts of both the Philippines and
the United States, and if one looks at the doctrine’s formulation half a century
later in the Rome Statute of the International Criminal Court, it seems that, in
the end, it is the dissenters who have won the day. The Marcos human rights
victims triumphed before American courts, invoking the U.S. Alien Tort Claims
Act, but the recognition and enforcement of these foreign awards was frus-
trated not just by the Marcos heirs but by the Philippine government, invoking
a prior claim over the Marcos’ ill-​gotten wealth, showing how human rights
and anti-​corruption laws have been used to frustrate the other.
In all, this book is a retelling of Philippine history using international
law, and a revisiting of international law doctrine through the eyes of the
Philippine lawyers and judges. For Filipinos, I hope it helps negate the bizarre
form of patriotism that defines itself solely in the rejection of all that is for-
eign and international. For international law scholars and practitioners, I hope
it shows the legal form taken by political and diplomatic disputes, and how

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Introduction 3

the law actually reshapes those debates and solutions. And for us all, I wish
the empowerment that comes from having in one’s hands the actual words of
the rules and decisions otherwise invoked broadly as “International Law” writ
large, that in the end we can on our own find God in the details.

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 ­c hapter 1

Constituting the Philippine State in

International Law
History and Its Legal Markers

Overview

The idea that the natives of the Philippine islands, separated by geography
and disparate languages, actually belonged to a single nation did not have cur-
rency until it was best articulated by the national hero Jose Rizal in the latter
half of the 19th century. The politico-​military expression of that idea was the
Philippine Revolution against Spain that began in 1896 and it culminated in
the Declaration of Independence in 1898.
The chief source of legal confusion is that the foundational moment, the
Filipino triumph against Spanish colonialism, overlapped with the outbreak
of the Spanish-​American War. During that period, the United States initially
enlisted the help of the Filipino revolutionaries in fighting Spain. Following
the U.S. victory over Spain in the naval battle at Manila Bay, Spain ceded the
Philippines under the peace agreement, whereupon the fledgling Philippine
Republic continued its armed resistance against America, the new colonizer.
In other words, the war of independence against Spain morphed seamlessly
into what Filipinos call the Philippine-​American War (and for the Americans,
the “Philippine Insurrection”).
In today’s legal language, the Filipinos’ war of national liberation consisted
of two successive armed conflicts, the first, by an insurgent army against
Spain and, the second, by the army of the fledgling Philippine Republic
against the United States, both of which in turn overlapped with the wholly
separate war between Spain and the United States. Sadly, the triumph of
the Filipino revolutionists was legally embodied in their Declaration of
Independence which was not internationally recognized. On the other hand,
the triumph of the United States was legally expressed in the Treaty of Paris,
a full-​fledged treaty whose validity was not disputed except by the Filipino
revolutionists.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004469723_003

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Constituting the Philippine State in International Law 5

From the August 1896 Uprising to the December 1897 Peace

Agreement

In 1892, a secret society, the Katipunan, was formed to end three centuries
of Spanish colonialism by force of arms. On 23 August 1896, after they were
exposed to the authorities, the Katipunan, led by Andres Bonifacio, per-
formed the first overt act of rebellion by tearing their residence cards in what
Philippine history records as The Cry of Pugad Lawin. Within one week, by 30
August, the Spanish Governor-​General in Manila, Ramón Blanco, declared a
state of emergency and proclaimed martial law over eight adjacent provinces
close to Manila in the main island of Luzon. This was the first legal recognition
of the existence of the political and military challenge posed by the revolution-
ary forces.
On 6 October, Jose Rizal, the leading intellectual of the independence move-
ment, was arrested while was en route to Cuba where ironically he had volun-
teered to serve as a doctor for the Spanish government. On 30 December, Rizal
was executed after trial and conviction for rebellion, sedition and conspiracy.
In the meantime, on 25 October, martial law was extended to three more
provinces, Zambales; Bataan; and Sibugay, in the province of Zamboanga,
significantly, the only Spanish outpost in the second-​largest and otherwise
unconquered Muslim island of Mindanao.
On 22 March 1897, the Filipino revolutionaries transformed the Katipunan
into a government and elected Emilio Aguinaldo as its first President. On 15
December 1897, a truce was signed between Aguinaldo and the Spanish colo-
nial government, which gave amnesty and monetary indemnity to the rebels in
exchange for their voluntary exile in Hong Kong. If the August 1896 martial law
declaration is the legal recognition that Bonifacio’s uprising posed a sufficient
threat, this December 1897 ceasefire agreement documents the existence of an
armed conflict between the colonial government and the rebels.

America Wages War on Spain and Brings Aguinaldo to Manila

Four months into the revolutionaries’ exile in Hong Kong, on 25 April 1898, the
United States Congress declared war on Spain. Within a week, on 1 May, the
United States’ Asiatic Squadron led by Admiral George Dewey defeated the
Spanish Navy in the Battle of Manila Bay. Dewey sent the uss McCulloch from
Manila to Hong Kong, the closest telegraph point, to dispatch the news of the
victory to Washington d.c. On its return to Manila, the uss McCulloch brought

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home Emilio Aguinaldo, who immediately assumed command of the Filipino

revolutionary forces and resumed hostilities against Spain.
On 12 June 1898, Aguinaldo promulgated the Declaration of Independence
of the Philippine Republic, whereby the Filipinos “ceased to have any alle-
giance to the Crown of Spain [and] that all political ties between them are and
should be completely severed and annulled.” Significantly, it expressly gives “pro-
found gratitude towards this Great Nation [the United States] for its disinterested
protection.”
On 21 January 1899, the Filipino revolutionists adopted the Political
Constitution of 1899, known as the Malolos Constitution, which proclaimed
a “free and independent” Philippine Republic, and established a popular and
representative government with a bill of rights and democratic institutions to
safeguard against tyranny. Significantly, it had a separate section, Transitory
Provisions, which essentially suspended republican guarantees “in the mean-
time that the country is fighting for its independence” against the United
States, namely, the checks and balances to avoid concentrating powers in the
President (to give Aguinaldo a free hand to conduct the war against the United
States) and the separation of church and state (to hold a common front with
the formidable Roman Catholic clergy and its faithful).

The U.S. Takes Manila and Spain Cedes the Philippine Archipelago

In the meantime, on 12 August 1898, Spain and the United States signed a
Protocol to negotiate peace in Paris. On 10 December 1898, the Treaty of Peace
was signed in Paris, known as the Treaty of Paris, wherein Spain transferred
Cuba, Puerto Rico, Guam and the Philippines to the United States. On 21
December, U.S. President William McKinley issued a “Message” proclaiming
the “conquest of the Philippine Islands and the suspension of Spanish sovereignty”
and that the “mission of the United States is one of benevolent assimilation.” On 6
February 1899, the U.S. Senate, after intense debate, ratified the Treaty of Peace
by a vote of 57 to 27, just one vote above the two-​thirds majority required under
the U.S. Constitution to approve a treaty. The treaty came into effect on 11 April.

Aguinaldo’s Government Protests the U.S.–​Spain Negotiations over

the Philippines

In December 1898, Aguinaldo’s emissary, lawyer Felipe Agoncillo, submitted

a “protest” to the Spanish-​American Peace Conference in Paris as they were

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about to negotiate the treaty of peace. He asserted the “juridical political

independent personality of the Filipino people.” He argued that Spain cannot
“within the principles of the Law of Nations, [] give up or transfer what … they
ha[d]‌totally lost.

If any juridical effect can be attributed to the Spanish action in the peace
treaty within the principles of international law it is the explicit renun-
ciation of all future pretensions over the land, the dominion and pos-
session of which she had lost, and therefore is only of use to make the
recognition of the corporate body of the Philipino [sic] nation and that
of their rights to rule effectively in respect of the future.

Moreover, the United States, which at that time controlled only the city of
Manila while Dewey’s navy awaited reinforcements for a land attack, laid claim
to the vast territory outside that had already been conquered by the Filipino
revolutionary army. Agoncillo argued: “It must be remembered here that the
Filipinos did not fight as paid troops or mercenaries of America.”
Those arguments are actually bolstered by the careful wording of the suc-
cessive agreements between Spain and the United States.
In the August 1898 Protocol of Peace, the ceasefire agreement, Spain “relin-
quish[ed] all claim of sovereignty over and title of Cuba” and “cede[d]‌ to the
United States the Island of Puerto Rico and other islands now under Spanish
sovereignty in the West Indies”, but with regard to the Philippines, suddenly the
wording dramatically shifted.

The United States will occupy and hold the city, bay and harbor of
Manila, pending the conclusion of a treaty of peace which shall deter-
mine the control, disposition, and government of the Philippines.
[­emphasis added]

The Protocol is significant in three ways. One, suddenly it no longer spoke of

Spain transferring anything to the United States. Rather, it spoke merely of
maintaining the United States in the territory that it already held. Two, that
territory was merely “the city, bay and harbor of Manila”, which was indeed the
only Philippine territory that was under American control, and only at the suf-
ferance of the Philippine revolutionaries who had seized the surrounding area.
Third, the United States, in referring to the nature of its control over Manila,
would not claim “sovereignty” over it but merely say that they “occup[ied] and
h[e]‌ld” it.

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When the Treaty was signed in December 1898, that same formula will be
followed for Cuba and Puerto Rico, but for the Philippines, the wording was
revised to “cession” in exchange for payment.

Spain cedes to the United States the archipelago known as the Philippines
Islands. …

Again, in contrast to cession of Cuba and Puerto Rico, the United States would
pay $20 million to Spain for the Philippines, supposedly to overcome the
Spanish insistence that it would relinquish only Luzon.
Significantly, by November 1900, after open hostilities had broken out
between U.S. and Filipino troops and the U.S. military had ventured far out-
side Manila, the wording would be different in a follow-​up treaty between the
United States and Spain:

[The Parties,] desiring to remove any ground of misunderstanding grow-

ing out of the interpretation of Article iii of the Treaty of Peace … have
agreed to the following sole article :
Spain relinquishes to the United States all title and claim of title, which
she may have had at the time of the conclusion of the Treaty of Peace of
Paris, to any and all islands belonging to the Philippine Archipelago …

This time, it refers to title that Spain “may have had” in December 1898 when
the Treaty of Peace was signed, built on the fiction that Spain still controlled
the Aguinaldo-​occupied territory outside Manila.
Just two days prior to the vote by the U.S. Senate, on 4 February 1899, hostil-
ities erupted between the U.S. and Filipino fighters. On 2 June, the Philippine
Republic declared war against the United States. President Aguinaldo was cap-
tured in March 1901, but despite that, the Philippine-​American war raged until
21 June 1902 when U.S. President Theodore Roosevelt, McKinley’s successor,
declared the end of hostilities and proclaimed an amnesty for all Filipino reb-
els who laid down arms.
The struggle for Philippine independence thenceforth shifted from the bat-
tlefields in the Philippine countryside to the lobbying halls in Washington,
d.c. The U.S. made gradual concessions to Philippine autonomy and eventual
independence. On the 4th of July 1946, U.S. President Harry Truman issued a
proclamation “withdraw[ing] all rights of possession, supervision, jurisdiction,
control, or sovereignty” held by the United States.
Accordingly, the Philippines would thenceforth celebrate its Independence
Day on the 4th of July, until it passed a law in 1964 changing its Independence

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Constituting the Philippine State in International Law 9

Day to the 12th of June, recognizing Emilio Aguinaldo’s Declaration of

Independence in 1898, thus affirming in Philippine law that the Philippine
Republic was born out of a revolutionary war and not by the grace of a new
colonizer.

i Declaration of a State of War by Governor-​General Ramón Blanco

(Martial Law Proclamation) (1896)1

Article 1. From the date of the publication of this proclamation, the provinces
of Manila, Bulacán, Pampanga, Nueva Ecija, Tarlac, La Laguna, Cavite and
Batangas are declared to be in a state of war.
Art. 2. By virtue of this decree, any person accused of crimes contrary to pub-
lic order, treason, acts that endanger the peace and independence of the State
or against the form of government; offenses against or disrespect to authorities
and their agents and the ordinary crimes committed rebellion or sedition, shall
be subject to martial law.
Art. 3. Those guilty of open rebellion, and the crimes defined in the forego-
ing article, or of those provided for in the Code of Military Justice, will be tried
immediately by the proper Council of War.
Art. 4. All leaders of the uprising or rebellion, whenever caught “in flagrante”
shall be given an immediate trial.
Art. 5. Those who are found on, or have been at the scene of an action, and
those who are captured fleeing or in hiding, after having been with the rebels,
shall be treated as presumably guilty of the crimes mentioned in the foregoing
article.
Art. 6. The Councils of War established in the respective cases by the Code
of Military Justice, shall be of competent jurisdiction to take cognizance of the
trials instituted on account of the commission of any of the crimes mentioned.
Art. 7. Rebels who shall surrender to the authorities before the expiration
of 48 hours after the publication of this proclamation, shall be exempt from
the penalty for insurrection, excepting the leaders of the rebellious groups
and those who are accomplices in said crimes. The leaders referred to, shall be
pardoned the penalty which they may have incurred if they surrender within
the period fixed upon, and the next lower penalty in its minimum or medium
degree shall be imposed upon them.

1 30 August 1896. John R.M. Taylor, The Philippine Insurrection Against the
United States (Vol. i) 267–​68 (Pasay City, 1971).

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10  Chapter 1

Art. 8. Participants in the rebellion only, who shall surrender within the
period mentioned without having committed any acts of violence, as well
as those who, having bound themselves to continue to the end, should
denounce it in time to avoid the consequences, shall be exempt from any
penalty.
Art. 9. Every suspicious group which may be formed, shall be resolutely dis-
persed by force; such persons as do not surrender, being arrested and held sub-
ject to the orders the military authority.
Art. 10. The administrative and judicial civil authorities shall continue to
act in all matters within their jurisdiction, which do not refer to public order,
confining themselves with regard to the latter to the powers which the mili-
tary authorities may issue or delegate to them, being obliged in either case to
inform the latter at once of any news or information which may come to their
knowledge.

ii Act of Agreement Adopted for the Pacification of the Island of

Luzon (Pact of Biak-​na-​Bato) (1897)2

1st. Emilio Aguinaldo, in his quality as Supreme Chief of all those still in arms in
the Island of Luzon against their legitimate Government, and Mariano Llanera
and Baldomero Aguinaldo, who also hold important commands among the
forces alluded to, cease their hostile attitude, surrendering thee arms which
they use against their country, and submit themselves to the proper author-
ities, acquiring their rights as Philippine Spanish citizens, which rights they
desire to preserve. As a consequence of this surrender, they engage to surren-
der all those who follow them at present, and also those who recognize them
as Chiefs and obey their orders.
2nd. The delivery of arms shall be carried out by inventory on the _​_​_​_​day
of _​_​_​_​_​, at the hour and place which will may be agreed be upon beforehand,
the Military Chief appointed by His Excellency, the General in Chief to this
effect superintending the same.

2 18 November 1897. Id. at 403–​04. The Agreements consisted of three parts. The excerpt
belongs to the first part. The second and third parts were both entitled Program, consisting of
a detailed, chronological sequence of the operative acts, starting with the arrival honors for
Aguinaldo and his party, the ceremonial surrender of their arms, the departure of his party
by train to Lingayen (a port on the Western coast of Luzon) and their departure for Hong
Kong, the payment of the first tranche of payments (“necessary means of subsistence”), the
mass surrender of firearms by the remaining revolutionaries, etc.

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3rd. The surrender of the individuals referred to in the first clause shall be
made by the respective leaders of organized parties or isolated groups, with
the formalities and at the places and on the days which have been previously
agreed upon, each one being, at the time of surrender, furnished with a pass-
port necessary to freely go to any place he may choose. to travel freely to the
place where he wants to go. Native-​born Spaniards, foreigners and desert-
ers shall not enjoy this benefit and shall remain in the hands of the Military
Authority and shall be deal with according to clauses fifth and sixth.
4th. All those who may avail themselves of the clauses herein contained will
be exempted from all punishment they may have incurred by rebellion and
other crimes connected therewith. His Excellency the General in Chief pledging
himself to grant an ample and general amnesty embracing the above named
crimes, and to authorize the surrendered parties to freely fix their residence in
any portion of Spanish territory or abroad. This clause shall not conflict with
the provisions made in numbers five and six of the present agreement.
5th. Deserters availing themselves of the clauses of of this Agreement shall
be exempted from all punishment, but will have to serve, in a disciplinary body,
as soldiers, the time which on deserting they owed the service.
6th. Spaniards born in Spain or in Spanish American possessions and for-
eigners who shall surrender and avail themselves of the benefits of this act will
be comprised in the general pardon, but will be expelled from the Philippine
Islands.
7th. Armed parties and groups which do not acknowledge the leadership of
Emilio Aguinaldo nor obey his orders, but which take advantage of the benefits
granted herein shall enjoy the same fully, provided they make their submission
before the above mentioned date.
8th. Armed parties and groups which do not surrender before the date fixed
in the preceding clause, shall be pursued and treated in accordance with the
laws in force, and even-​like bands of criminals, if by their organization, by the
character of their respective Chief and by their acts, they should deserve that
name. The benefits already mentioned shall neither be enjoyed by those who
surrender immediately before an impending engagement, nor to those who do
so during their pursuit following such engagement.
9th. His Excellency the General-​in-​Chief shall provide the necessary means
of subsistence to those who surrender themselves before the date fixed in the
second clause in view of the painful condition to which they have been reduced
by the war, dealing only for that purpose with Emilio Aguinaldo through the
intermediary of Pedro Alejandro Paterno.
10th. In case of the violation of any of the preceding clauses all the stipula-
tions contained in the other clauses shall have no effect whatsoever.

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12  Chapter 1

In testimony whereof His Excellence the Captain Genera,l Fernando Primo

de Rivera, in the name of and as representative of the Government of His
Majesty, and His Excellency Pedro Alejandro Paterno, in the name of Emilio
Aguinaldo, bind themselves in the terms and form herein set forth, and sign
the present Agreement, of which shall be made: One for the War Department,
another to be kept in the office of the Captain General of the Philippine Islands
for its information and for other purposes, and a third copy for the Arbitrator,
His Excellency Pedro Alejandro Paterno; the said gentleman stating in the
name of those he represented that they hope and expect with confidence from
the farseeing Government of his Majesty that the latter will take into consider-
ation the aspirations of the Filipino People in order to assure it the peace and
the well-​being which it deserves.

iii Declaration of Philippine Independence (1898)3

… Taking into account the fact that the people of this country are already tired
of bearing the ominous yoke of Spanish domination,
Because of arbitrary arrests and abuses of the Civil Guards who cause
deaths in connivance with and even under the express orders of their superior
officers who at times would order the shooting of those placed under arrest
under the pretext that they attempted to escape …, which abuses were left
unpunished ….,
Had resolved to start a revolution in August 1896 in order to regain the inde-
pendence and sovereignty of which the people had been deprived by Spain
[which took] the whole Archipelago in the name of Spain by virtue of an order
of King Philip ii, … and because in international law the prescription estab-
lished by law to legalize the vicious acquisition of private property is not rec-
ognized, the legitimacy of such revolution cannot be put in doubt which was
calmed but not completely stifled by the [Truce of Biak-​na-​Bato]; that by rea-
son of the non-​fulfillment of some of [its] terms, after the destruction of the
Spanish Squadron by the North American Navy, and bombardment of the plaza
of Cavite, Don Emilio Aguinaldo returned in order to initiate a new revolution
and no sooner had he given the order to rise on the 31st of last month when
several towns anticipating the revolution, rose in revolt on the 28th, [with the]
success of the victory of our arms, truly marvelous and without equal in the

3 12 June 1898. Philippines. Gobierno Revolucionario, 1898, The Laws of the First
Philippine Republic (the Laws of Malolos) 203 (Sulpicio Guevara ed., 1972).

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Constituting the Philippine State in International Law 13

history of colonial revolutions … so that the independence of our country and

the revindication of our sovereignty is assured.
And having as witness to the rectitude of our intentions the Supreme Judge
of the Universe, and under the protection of the Powerful and Humanitarian
Nation, the United States of America, we do hereby proclaim and declare sol-
emnly in the name and by authority of the people of these Philippine Islands,
That they are and have the right to be free and independent; that they
have ceased to have any allegiance to the Crown of Spain; that all political
ties between them are and should be completely severed and annulled; and
that, like other free and independent States, they enjoy the full power to make
War and Peace, conclude commercial treaties, enter into alliances, regulate
commerce, and do all other acts and things which an Independent State has a
right to do,
And imbued with firm confidence in Divine Providence, we hereby mutu-
ally bind ourselves to support this Declaration with our lives, our fortunes, and
with our most sacred possession, our Honor.
We recognize, approve, and ratify, with all the orders emanating from the
same, the Dictatorship established by Don Emilio Aguinaldo whom we revere
as the Supreme Head of this Nation, which today begins to have a life of its
own, in the conviction that he has been the instrument chosen by God, in spite
of his humble origin, to effectuate the redemption of this unfortunate country
as foretold by Dr. Don José Rizal in his magnificent verses which he composed
in his prison cell prior to his execution, liberating it from the Yoke of Spanish
domination,
…
And, lastly, it was resolved unanimously that this Nation, already free and
independent as of this day, must use the same flag which up to now is being
used … the white triangle signifying the distinctive emblem of the famous
Society of the “Katipunan” which by means of its blood compact inspired
the masses to rise in revolution; the three stars, signifying the three principal
Islands of this Archipelago-​Luzon, Mindanao, and Panay where this revolu-
tionary movement started; the sun representing the gigantic steps made by the
sons of the country along the path of Progress and Civilization; the eight rays,
signifying the eight provinces—​Manila, Cavite, Bulacan, Pampanga, Nueva
Ecija, Bataan, Laguna, and Batangas—​which declared themselves in a state
of war as soon as the first revolt was initiated; and the colors of Blue, Red, and
White, commemorating the flag of the United States of North America, as a
manifestation of our profound gratitude towards this Great Nation for its dis-
interested protection which it lent us and continues lending us. …

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iv U.S. President William McKinley: Messages on the Philippine

Campaign

A Message to the Congress of the United States (1898)4

On the 24th of April I directed the Secretary of the Navy to telegraph orders
to Commodore George Dewey, of the United States Navy, commanding the
Asiatic Squadron, then lying in the port of Hongkong, to proceed forthwith to
the Philippine Islands, there to commence operations and engage the assem-
bled Spanish fleet.
Promptly obeying that order, the United States squadron, consisting of
the flagship Olympia, Baltimore, Raleigh, Boston, Concord, and Petrel, with
the revenue cutter McCulloch as an auxiliary dispatch boat, entered the har-
bor of Manila at daybreak on the 1st of May and immediately engaged the
entire Spanish fleet of eleven ships, which were under the protection of the
fire of the land forts. After a stubborn fight, in which the enemy suffered
great loss, these vessels were destroyed or completely disabled and the water
battery at Cavite silenced. Of our brave officers and men not one was lost
and only eight injured, and those slightly. All of our ships escaped any seri-
ous damage.
By the 4th of May Commodore Dewey had taken possession of the naval
station at Cavite, destroying the fortifications there and at the entrance of the
bay and paroling their garrisons. The waters of the bay are under his complete
control. He has established hospitals within the American lines, where 250 of
the Spanish sick and wounded are assisted and protected.
The magnitude of this victory can hardly be measured by the ordinary stan-
dard of naval warfare. Outweighing any material advantage is the moral effect
of this initial success. At this unsurpassed achievement the great heart of our
nation throbs, not with boasting or with greed of conquest, but with deep grat-
itude that this triumph has come in a just cause and that by the grace of God
an effective step has thus been taken toward the attainment of the wished-​for
peace. To those whose skill, courage, and devotion have won the fight, to the
gallant commander and the brave officers and men who aided him, our coun-
try owes an incalculable debt.

4 9 May 1898 [emphasis added]. James D. (Compiler) Richardson, Compilation of the Messages
and Papers of the Presidents 155–​156 (1899).

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B Second Annual Message to the Senate and the House of

Representatives (1898)5
To the Senate and House of Representatives:
… The next engagement was destined to mark a memorable epoch in mari-
time warfare. The Pacific fleet, under Commodore George Dewey, had lain for
some weeks at Hongkong. Upon the colonial proclamation of neutrality being
issued and the customary twenty-​four hours’ notice being given, it repaired to
Mirs Bay, near Hongkong, whence it proceeded to the Philippine Islands under
telegraphed orders to capture or destroy the formidable Spanish fleet then
assembled at Manila. At daybreak on the 1st of May the American force entered
Manila Bay, and after a few hours’ engagement effected the total destruction of
the Spanish fleet, consisting of ten war ships and a transport, besides capturing
the naval station and forts at Cavite, thus annihilating the Spanish naval power
in the Pacific Ocean and completely controlling the bay of Manila, with the
ability to take the city at will. Not a life was lost on our ships, the wounded only
numbering seven, while not a vessel was materially injured. For this gallant
achievement the Congress, upon my recommendation, fitly bestowed upon
the actors preferment and substantial reward.
The effect of this remarkable victory upon the spirit of our people and upon
the fortunes of the war was instant. A prestige of invincibility thereby attached
to our arms which continued throughout the struggle. Reenforcements were
hurried to Manila under the command of Major-​General Merritt and firmly
established within sight of the capital, which lay helpless before our guns.
On the 7th day of May the Government was advised officially of the victory
at Manila, and at once inquired of the commander of our fleet what troops
would be required. The information was received on the 15th day of May, and
the first army expedition sailed May 25 and arrived off Manila June 30. Other
expeditions soon followed, the total force consisting of 641 officers and 15,058
enlisted men.
Only reluctance to cause needless loss of life and property prevented the
early storming and capture of the city, and therewith the absolute military
occupancy of the whole group. The insurgents meanwhile had resumed the
active hostilities suspended by the uncompleted truce of December, 1897. Their
forces invested Manila from the northern and eastern sides, but were constrained
by Admiral Dewey and General Merritt from attempting an assault. It was fitting

5 5 December 1898 [emphasis added]. James D. (Compiler) Richardson, Compilation of the

Messages and Papers of the Presidents 160–​202 (1899).

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that whatever was to be done in the way of decisive operations in that quarter
should be accomplished by the strong arm of the United States alone.
….
The last scene of the war was enacted at Manila, its starting place. On August
15, after a brief assault upon the works by the land forces, in which the squadron
assisted, the capital surrendered unconditionally. The casualties were compar-
atively few. By this the conquest of the Philippine Islands, virtually accom-
plished when the Spanish capacity for resistance was destroyed by Admiral
Dewey’s victory of the 1st of May, was formally sealed. To General Merritt, his
officers and men, for their uncomplaining and devoted service and for their
gallantry in action, the nation is sincerely grateful. Their long voyage was made
with singular success, and the soldierly conduct of the men, most of whom
were without previous experience in the military service, deserves unmea-
sured praise …

C Message to the Secretary of War (1899)6

The destruction of the Spanish fleet at Manila, followed by the taking of the
naval station at Cavite, the paroling of the garrisons, and the acquisition of
the control of the bay, has rendered it necessary, in the further prosecution of
the measures adopted by this Government for the purpose of bringing about
an honorable and durable peace with Spain, to send an army of occupation to
the Philippines for the two-​fold purpose of completing the reduction of the
Spanish power in that quarter and of giving order and security to the islands
while in the possession of the United States. For the command of this expe-
dition I have designated Major-​General Wesley Merritt, and it now becomes
my duty to give instructions as to the manner in which the movement shall be
conducted.
The first effect of the military occupation of the enemy’s territory is the sev-
erance of the former political relations of the inhabitants and the establishment
of a new political power. Under this changed condition of things the inhabi-
tants, so long as they perform their duties, are entitled to security in their per-
sons and property and in all their private rights and relations. It is my desire
that the people of the Philippines should be acquainted with the purpose of
the United States to discharge to the fullest extent its obligations in this regard.
It will therefore be the duty of the commander of the expedition, immediately
upon his arrival in the islands, to publish a proclamation declaring that we

6 (19 May 1899) [emphasis added]. James D. (Compiler) Richardson, Compilation of the
Messages and Papers of the Presidents 208–​209 (1899).

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come not to make war upon the people of the Philippines, nor upon any party or
faction among them, but to protect them in their homes, in their employments,
and in their personal and religious rights. All persons who, either by active aid
or by honest submission, cooperate with the United States in its efforts to give
effect to this beneficent purpose will receive the reward of its support and pro-
tection. Our occupation should be as free from severity as possible.
…

D Message to Major-​General Wesley Merritt (1898)7

The President directs that there must be no joint occupation with the insurgents.
The United States, in the possession of Manila City, Manila Bay and Harbor,
must preserve the peace and protect persons and property within the terri-
tory occupied by their military and naval forces. The insurgents and all others
must recognize the military occupation and authority of the United States and
the cessation of hostilities proclaimed by the President. Use whatever means
in your judgment are necessary to this end. All law-​abiding people must be
treated alike.

E Message to the Secretary of War (1898)8

The destruction of the Spanish fleet in the harbor of Manila by the United
States naval squadron commanded by Rear-​Admiral Dewey, followed by the
reduction of the city and the surrender of the Spanish forces, practically
effected the conquest of the Philippine Islands and the suspension of Spanish sov-
ereignty therein.
With the signature of the treaty of peace between the United States and
Spain by their respective plenipotentiaries at Paris, on the 10th instant, and
as the result of the victories of American arms, the future control, disposition,
and government of the Philippine Islands are ceded to the United States. In ful-
fillment of the rights of sovereignty thus acquired and the responsible obliga-
tions of government thus assumed, the actual occupation and administration
of the entire group of the Philippine Islands become immediately necessary,
and the military government heretofore maintained by the United States in the
city, harbor, and bay of Manila is to be extended with all possible dispatch to the
whole of the ceded territory.

7 (17 August 1898) [emphases added]. James D. (Compiler) Richardson, Compilation of the
Messages and Papers of the Presidents 217 (1899).
8 (21 December 1898) [emphases added]. James D. (Compiler) Richardson, Compilation of the
Messages and Papers of the Presidents 219–​221 (1899).

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In performing this duty the military commander of the United States is

enjoined to make known to the inhabitants of the Philippine Islands that in
succeeding to the sovereignty of Spain, in severing the former political rela-
tions of the inhabitants, and in establishing a new political power the author-
ity of the United States is to be exerted for the security of the persons and prop-
erty of the people of the islands and for the confirmation of all their private
rights and relations.
It will be the duty of the commander of the forces of occupation to
announce and proclaim in the most public manner that we come, not as
invaders or conquerors, but as friends, to protect the natives in their homes, in
their employments, and in their personal and religious rights. All persons who,
either by active aid or by honest submission, cooperate with the Government
of the United States to give effect to these beneficent purposes will receive
the reward of its support and protection. All others will be brought within the
lawful rule we have assumed, with firmness if need be, but without severity so
far as may be possible.
….
Finally, it should be the earnest and paramount aim of the military admin-
istration to win the confidence, respect, and affection of the inhabitants of the
Philippines by assuring to them in every possible way It full measure of indi-
vidual rights and liberties which is the heritage of free peoples, and by proving
to them that the mission of the United States is one of benevolent assimilation,
substituting the mild sway of justice and right for arbitrary rule. In the fulfill-
ment of this high mission, supporting the temperate administration of affairs
for the greatest good of the governed, there must be sedulously maintained the
strong arm of authority to repress disturbance and to overcome all obstacles to
the bestowal of the blessings of good and stable government upon the people
of the Philippine Islands under the free flag of the United States.

F Message to General Elwell Stephen Otis in Manila (1898)9

Answering your message of December 14, the President directs that you send
necessary troops to Iloilo to preserve the peace and protect life and property.
It is most important that there should be no conflict with the insurgents. Be
conciliatory, but firm.

9 (21 December 1898). James D. (Compiler) Richardson, Compilation of the Messages and
Papers of the Presidents 221 (1899).

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G Message to the Secretary of War (1899)10

My communication to the Secretary of War dated December 21, 1898 declares
the necessity of extending the actual occupation and administration of the city,
harbor, and bay of Manila to the whole of the territory which by the treaty of
Paris, signed on December 10, 1898, passed from the sovereignty of Spain to the
sovereignty of the United States and the consequent establishment of military
government throughout the entire group of the Philippine Islands.
While the treaty has not yet been ratified, it is believed that it will be by
the time of the arrival at Manila of the commissioners named below. In order
to facilitate the most humane, specific, and effective extension of authority
throughout these islands and to secure with the least possible delay the ben-
efits of a wise and generous protection of life and property to the inhabitants,
I have named Jacob G. Schurman, Rear-​Admiral George Dewey, Major-​General
Elwell S. Otis, Charles Denby, and Dean C. Worcester to constitute a commis-
sion to aid in the accomplishment of these results. ….
The commissioners will endeavor, without interference with the military
authorities of the United States now in control of the Philippines, to ascertain
what amelioration in the condition of the inhabitants and what improvements
in public order may be practicable, …
The temporary government of the islands is intrusted to the military author-
ities, as already provided for by my instructions to the Secretary of War of
December 21, 1898, and will continue until Congress shall determine other-
wise …
In so far as immediate personal changes in the civil administration may
seem to be advisable, the commissioners are empowered to recommend suit-
able persons for appointment to these offices from among the inhabitants
of the islands who have previously acknowledged their allegiance to this
Government.
It is my desire that in all their relations with the inhabitants of the islands
the commissioners exercise due respect for all the ideals, customs, and insti-
tutions of the tribes and races which compose the population, emphasizing
upon all occasions the just and beneficent intentions of the Government of the
United States.
It is also my wish and expectation that the commissioners may be received
in a manner due to the honored and authorized representatives of the
American Republic, duly commissioned, on account of their knowledge, skill,

10 (20 January 1899) [emphases added]. James D. (Compiler) Richardson, Compilation of

the Messages and Papers of the Presidents 222–​223 (1899).

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and integrity, as bearers of the good will, the protection, and the richest bless-
ings of a liberating rather than a conquering nation.

H Message to General Elwell Stephen Otis in Manila (1900)11

The President considers it of first importance that a conflict brought on by you
be avoided at this time, if possible. Can not Miller get into communication
with insurgents, giving them President’s proclamation and informing them of
the purposes of the Government, assuring them that while it will assert its sov-
ereignty its purpose is to give them a good government and security in their
personal rights?

I Message to the U.S. Senate (1900)12

Resolved, That the President be, and he is hereby requested, if not incompatible
with the public interest, to inform the Senate whether General Torres, one of
the officers of the Philippine army, came to General Otis with a flag of truce on
February 5, 1899, the day after the fighting commenced between our forces and
those of the Filipinos, and stated to General Otis that General Aguinaldo declared
that fighting had been begun accidentally, and was not authorized by him, and
that Aguinaldo wished to have it stopped, and that to bring about a conclusion
of hostilities he proposed the establishment of a neutral zone between the two
armies of a width that would be agreeable to General Otis, so that during the
peace negotiations there might be no further danger of conflict between the two
armies, and whether General Otis replied that fighting having once begun, must
go on to the grim end. Was General Otis directed by the Secretary of War to make
such an answer? Did General Otis telegraph the Secretary of War on February 9,
1899, as follows: “Aguinaldo now applies for a cessation of hostilities and confer-
ence. Have declined to answer?” And did General Otis afterwards reply? Was he
directed by the Secretary of War to reply, and what answer, if any, did he or the
Secretary of War make to the application to cease fighting?
The President is also requested to inform the Senate whether the flag of the
Philippine Republic was ever saluted by Admiral Dewey or any of the vessels
of his fleet at any time since May 1, 1898. Did Admiral Dewey, at the request of
Aguinaldo, or any officer under him, send the vessels Concord and Raleigh to
Subig Bay to assist Aguinaldo’s forces in the capture of the Spanish garrison at
that place? Did said vessels assist in the capture of the Spanish garrison, and

11 (1 January 1900). James D. (Compiler) Richardson, Compilation of the Messages and

Papers of the Presidents 221 (1899).
12 (19 May 1900). James D. (Compiler) Richardson, Compilation of the Messages and Papers
of the Presidents 6414–​6415 (1909).

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after the capture did they turn the prisoners thus taken over to the Philippine
forces?”

v Basis for Establishment of Peace (Protocol of Peace) (1898)13

article i
Spain will relinquish all claim of sovereignty over and title to Cuba.
article ii
Spain will cede to the United States the island of Porto Rico and other islands now
under Spanish sovereignty in the West Indies, and also an island in the Ladrones to
be selected by the United States.
article iii
The United States will occupy and hold the city, bay and harbor of Manila, pending
the conclusion of a treaty of peace which shall determine the control, disposition,
and government of the Philippines …

vi Treaty of Peace between Spain and the United States (Treaty of Paris)
(1898)14

article i
Spain relinquishes all claim of sovereignty over and title to Cuba.
And as the island is, upon its evacuation by Spain, to be occupied by the United
States, the United States will, so long as such occupation shall last, assume and
discharge the obligations that may under international law result from the fact of
its occupation, for the protection of life and property.
article ii
Spain cedes to the United States the island of Porto Rico and other islands now
under Spanish sovereignty in the West Indies, and the island of Guam in the
Marianas or Ladrones.
article iii
Spain cedes to the United States the archipelago known as the Philippine Islands,
and comprehending the islands lying within the following line:
(Coordinates omitted)15

13 12 August 1898 [emphases added]. 30 Stat. 1742.

14 10 December 1898. 30 Stat. 1754. [emphases added] The treaty was “ratified by the
President of the United States on 6 February 1899”, and entered into force on 11 April 1899.
15 These coordinates are cited in Philippine law as the Treaty Lines.

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The United States will pay to Spain the sum of twenty million dollars
($20,000,000), within three months after the exchange of the ratifications of
the present treaty …
article ix
Spanish subjects, natives of the Peninsula, residing in the territory over which
Spain by the present treaty relinquishes or cedes her sovereignty, may remain
in such territory or may remove therefrom, ….
The civil rights and political status of the native inhabitants of the territo-
ries hereby ceded to the United States shall be determined by Congress …

vii Treaty between the Kingdom of Spain and United States of

America for Cession of Outlying Islands of the Philippines
(Cession Agreement) (1900)16

[The Parties,] desiring to remove any ground of misunderstanding growing out

of the interpretation of Article iii of the Treaty of Peace … have agreed to the
following sole article:
Spain relinquishes to the United States all title and claim of title, which she
may have had at the time of the conclusion of the Treaty of Peace of Paris, to any
and all islands belonging to the Philippine Archipelago, lying outside the lines
described in Article iii of that Treaty and particularly to the islands of Cagayan
[Mapun], Sulu and Sibutu and their dependencies, and agrees that all such
islands shall be comprehended in the cession of the Archipelago as fully as if
they had been expressly included within those lines..

viii Felipe Agoncillo’s Official Protest against the Paris Peace Treaty
(1898)17

… I protest … in the name of the President and the National Government of the
Philippines, against any resolutions agreed upon at the [Spanish-​American]
Peace Conference in Paris, as long as the juridical, political, independent

16 31 Stat. 1942 (7 November 1900) (known also as the Cession Agreement “supplementing
article iii of treaty of December 10, 1898)”, id.)
17 30 January 1899. Philippines. Gobierno Revolucionario, 1898, The Laws of the
First Philippine Republic (the Laws of Malolos) 231–​2 35 (Sulpicio Guevara
ed., 1972).

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personality of the Filipino people is entirely unrecognized, and attempts are

made in any form to impose on these inhabitants resolutions which have not
been sanctioned by their public powers, the only ones who can legally decide
as to their future in history.
Spain is absolutely devoid of a status and power to decide in any shape or
form the before-​mentioned matter. …
At length, at the end of the present century, the Spanish forces have been
completely routed by those of the natives, and Spain cannot now even allege
the possession by her of the Islands. … The Spanish Government has ceased to
hold any dominion by deed and by right; and the only authority which exists
there and preserves order, is that constituted by the Filipinos with the solemn
sanction of their votes, the only legal fount of positive modern power.
Under such conditions, the Spanish Commissioners in Paris have not
been able, within the principles of the Law of Nations, to give up or to trans-
fer what, if they ever had, they have totally lost before the signing of the
Protocol of Washington, and the arranging of the terms of the Peace Treaty
in Paris. …
If any juridical effect can be attributed to the Spanish action in the Peace
Treaty, within the principles of International Law, it is the explicit renuncia-
tion of all future pretention over the land, the dominion and post-​session of
which she has lost, and therefore is only of use to make the recognition of the
corporate body of the Filipino nation and that of their rights to rule effectively
in respect of their future.
The United States of America … cannot allege a better right to constitute
themselves as arbitrators as to the future of the Philippines.
On the contrary, the demands of honor and good faith impose upon them
the explicit recognition of the political status of the people who, loyal to their
conventions, were a devoted ally of their forces in the moments of danger and
strife. ….
Under the faith of [American] promises, an American man-​of-​war, the
‘McCulloch’ was placed at the disposal of the said leaders, and which took
them to their native shores; and Admiral Dewey himself, by the sending the
man-​of-​war; by not denying to General Aguinaldo and his companions the
exacting of his promises, when they were presented to him on board his flag-
ship in the Bay of Manila; by receiving the said General Aguinaldo before
and after his victories and notable deeds of arms, with the honors due to the
Commander-​in-​Chief of an allied Army and Chief of an independent State; by
accepting the efficacious cooperation of that Army and of those Generals; by
recognizing the Filipino flag, and permitting it to be hoisted on sea and land,
and consenting that their ships should sail with the said flag within the places

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which were blockaded; by receiving a solemn notification of the formal proc-

lamation of the Philippine nation, without protesting against it, nor opposing
in any way its existence; by entering into relations with those Generals and
with the national Filipino authorities recently established, recognized with-
out question the corporate body and autonomous sovereignty of the people
who had just succeeding in breaking their fetters and freeing themselves by the
impulse of their own force.
….
To pretend to put now in question the attributes of such public functionar-
ies, after the danger, would be an act of notorious injustice, which cannot be
consented to by those who have the unavoidable duty of preserving unstained
the brilliant reputation of the sons of the great nation founded by the immor-
tal Washington, whose first glory was, and has always been, the constant fulfill-
ment of their word of honor.
It must be remembered here that the Filipinos did not fight as paid troops or
mercenaries of America. On their arrival, they only received a reduced number
of arms, which were delivered to them by the order of Admiral Dewey. The
arms, ammunition, and provisions with which the Filipinos have since sus-
tained the war against the Spanish forces, were acquired, some by their own
gallantry and others bought with their own funds, these latter being exclu-
sively provided by the Filipino patriots.
And it not be noble now, after having used the alliance, to deny the courage,
loyalty, and nobility of the Filipino forces in fighting at the side of the American
troops, lending them a decided support, both enthusiastic and efficacious.
Without their cooperation, and without the previous siege, would the
Americans have been able so easily to have gained possession of the walled
City of Manila?
They could, who can deny it? have destroyed it by bombardment, but with-
out the foregoing armed deeds, and without the rigorous circle in which the
Spanish Army was enclosed, the pretence of the attack and surrender which
took place could not absolutely have been realized.
Admiral Dewey gloriously destroyed the Spanish squadron, but he had no
disembarking forces … and under such conditions, the support, which, as com-
panions in arms, was lent to him by the Filipino Generals and their forces, is a
positive and undeniable advantage. Without them, General Anderson’s troops
and those which afterward were disembarked, probably would not have been
able to have arrived in Manila before the suspension of hostilities and the sign-
ing of the Protocol of Washington.
….

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Constituting the Philippine State in International Law 25

And in making this protest, I claim, in the name of the Filipino nation, in
that of their President and Government, the fulfillment of the solemn decla-
ration made by the illustrious William McKinley, President of the Republic of
the United States of North America, that, on going to war, he was not guided by
any intention of territorial expansion, but only in respect of the principles of
humanity, the duty of liberating tyrannized people, and the desire to proclaim
the unalienable rights, with their sovereignty, of the countries released from
the yoke of Spain.

ix Aguinaldo’s Manifesto Protesting the United States’ Claim of

Sovereignty over the Philippines (1899)18

General Otis styles himself Military Governor of these Islands, and I protest one
and a thousand times and with all the energy of my soul against such authority.
I proclaim solemnly that I have not recognized either in Singapore or in Hong
Kong or in the Philippines, by word or in writing, the sovereignty of America
over this beloved soil. On the contrary, I say that I returned to these Islands on
an American warship on the 19th of May last for the express purpose of mak-
ing war on the Spaniards to regain our liberty and independence. I stated this
in my proclamation of the 24th of May last, and I publish it in my Manifesto
addressed to the Philippine people on the 12th of June. Lastly, all this was con-
firmed by the American General Merritt himself, predecessor of General Otis,
in his Manifesto to the Philippine people some days before he demanded the
surrender of Manila from the Spanish General Jaúdenes. In that Manifesto it is
distinctly stated that the naval and field forces of the United States had come
to give us our liberty, by subverting the bad Spanish Government. And I hereby
protest against this unexpected act of the United States claiming sovereignty
over these Islands. My relations with the American authorities prove unde-
niably that the United States did not bring me over here from Hong Kong to
make war on the Spaniards for their benefit, but for the purpose of our own
liberty and independence …

18 5 January 1899 [emphasis added]. John Foreman, The Philippine Islands 486
(1996).

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x Political Constitution of the Republic (Malolos Constitution)

(1899)19

We, the Representatives of the Filipino people, legally convened to establish

justice, provide for the common defense, promote the general welfare, and
ensure the blessings of liberty, imploring the aid of the Sovereign Lawgiver
of the Universe in order to attain these objectives, have voted, decreed, and
approved the following.
political constitution
title i
on the republic
Article 1. The political association of all the Filipinos constitutes a Nation,
whose State shall be known as the Philippine Republic.
Article 2. The Philippine Republic is free and independent.
Article 3. Sovereignty resides exclusively in the people.
title ii
on the government
Article 4. The Government of the Republic is popular, representative, alterna-
tive, and responsible, and shall be divided among three distinct powers, which
shall be named legislative, executive, and judicial. Never can two or more of
these powers be united in one person or corporation, nor shall the power of
the legislative be vested in any single individual.
title iii
on religion
Article 5. The State recognizes the freedom and equality of all beliefs, as well as
the separation of Church and State.
title iv
on the filipinos and their national and individual rights
[This Title contains thirty-​seven Articles setting forth the following individ-
ual rights, including the following: citizenship (Article 6), against deprivation
of liberty except by judicial authority (Articles 7–​9, 14–​15), security of abode
(Article 10), freedom of abode (Article 11), privacy (Article 12), and against
unlawful arrests, searches and seizure (Article 13), property (Article 17), civil
and political rights, including freedom of speech and of association (Articles
19–​20), and travel (Article 25).

19 21 January 1899. The 1899 Malolos Constitution, available at https://​

www.officialgazette.gov.ph/​constitutions/​the-​1899-​malolos-​constitution/​.

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The Constitution further provides for The Legislative Power (Title v, Articles
33–​53); The Executive Power (Title vii, Articles 56–​67), The President of the
Republic (Title viii, Articles 58–​72), and The Secretaries of Government (Title
ix, Articles 73–​76); The Judicial Power (Title x, Articles 78–​81); and Provincial
and Popular Assemblies (Title xi, Article 82).]
transitory provisions
article 99. Notwithstanding the general rule established in paragraph 2 of
Article 4 [non-​concentration of power in one person, while the country needs
to fight for its independence, the Government shall be authorized during the
recess of Congress to resolve whatever issues and difficulties not provided
for under the laws, which unforeseen events may cause, by means of decrees
that shall be brought to the knowledge of the Permanent Commission and the
Assembly in the first meeting that will be called in accordance to the precepts
of this Constitution.
article 100. The execution of article 5, Title iii [separation of church
and state] shall be suspended until the meeting of the Constituent Assembly.
Meanwhile, the municipal governments of the town that may require the spir-
itual ministry of a Filipino priest shall provide him with the necessary support.
additional article. It is understood that all parcels of land, buildings
and other properties that religious orders used to own in these islands have
been restored to the Philippine State on the 24th day of May of last year, when
the Dictatorial Government of Cavite has been constituted.

xi Proclamation on U.S. President Theodore Roosevelt’s Pardon of

the People of the Philippine Archipelago (Amnesty Proclamation)
(1902)20

Whereas many of the inhabitants of the Philippine Archipelago were in insur-

rection against the authority and sovereignty of the Kingdom of Spain at divers
times from August, eighteen hundred and ninety-​six, until the cession of the
Archipelago by that Kingdom to the United States of America, and since such
cession many of the persons so engaged in insurrection have until recently
resisted the authority and sovereignty of the United States; and

20 4 July 1902. Proclamation on U.S. President Theodore Roosevelt’s

Pardon of the People of the Philippine Archipelago, available at: https://​
www.officialgazette.gov.ph/ ​ 1902/ ​ 0 7/ ​ 04/ ​ p roclamation-​ o n-​ u -​ s -​ p resident-​ t heodore
-​roosevelts-​pardon-​of-​the-​people-​of-​philippine-​archipelago/​.

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Whereas the insurrection against the authority and sovereignty of the

United States is now at an end and peace has been established in all parts of
the archipelago, except in the country inhabited by the Moro tribes, to which
this proclamation does not apply; and
Whereas during the course of the insurrection against the Kingdom of Spain
and against the Government of the United States persons engaged therein, or
those in sympathy with and abetting thorn, committed many acts in violation
of the laws of civilized warfare, but it is believed that such acts were generally
committed in ignorance of those laws and under orders issued by the civil or
military insurrectionary leaders; and
Whereas it is deemed to be wise and humane, in accordance with the benef-
icent purposes of the Government of the United States towards the Filipino
people, and conducive to peace, order, and loyalty among them, that the doers
of such acts who have not already suffered punishment shall not be held crim-
inally responsible, but shall be relieved from punishment for participation, in
these insurrections and for unlawful acts committed during the course thereof
by a general amnesty and pardon:
Now, therefore, be it known that I, Theodore Roosevelt, President of the United
States of America, by virtue of the power and authority vested in me by the
Constitution, do hereby proclaim and declare without reservation or condition
except as hereinafter provided, a full and complete pardon and amnesty to all
persons in the Philippine Archipelago who have participated in the insurrec-
tions aforesaid or who have given aid and comfort to persons participating in
said insurrections, for the offenses of treason or sedition and for all offenses
political in their character committed in the course of such insurrection pur-
suant to orders issued by the civil or military insurrectionary authorities or
which grew out of internal political feud or dissensions between Filipinos and
Spaniards or the Spanish authorities or which resulted from internal politi-
cal feuds or dissensions among the Filipinos themselves during either of said
insurrections.
….
And provided further, That every person who shall seek to avail himself of this
proclamation shall take and subscribe the following oath before any authority
in the Philippine Archipelago authorized to administer oaths, namely:
“I, _​_​_​_​_​_​, solemnly swear (or affirm) that I recognize and accept the
supreme authority of the United States of America in the Philippine Islands
and will maintain true faith and allegiance thereto: that I impose upon myself
this obligation voluntarily, without mental reservation or purpose of evasion.
So help me God.”

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xii The Philippine Autonomy Act (Jones Law) (1916)21

An Act To Declare The Purpose Of The People Of The United States As To The
Future Political Status Of The People Of The Philippine Islands, And To Provide
A More Autonomous Government For Those Islands
whereas it was never the intention of the people of the United States in
the incipiency of the war with Spain to make it a war of conquest or for terri-
torial aggrandizement; and
whereas it is, as it has always been, the purpose of the people of the United
States to withdraw their sovereignty over the Philippine Islands and to recog-
nize their independence as soon as a stable government can be established
therein; and
whereas for the speedy accomplishment of such purpose it is desirable to
place in the hands of the people of the Philippines as large a control of their
domestic affairs as can be given them without, in the meantime, impairing the
exercise of the rights of sovereignty by the people of the United States, in order
that, by the use and exercise of popular franchise and governmental powers,
they may be the better prepared to fully assume the responsibilities and enjoy
all the privileges of complete independence: ….

xiii Philippine Independence Act (Tydings–​McDuffie Act) (1934)22

An Act To Provide For The Complete Independence Of The Philippine Islands,

To Provide For The Adoption Of A Constitution And A Form Of Government
For The Philippine Islands, And For Other Purposes

Convention to Frame Constitution for Philippine Islands

section 1. The Philippine Legislature is hereby authorized to provide for
the election of delegates to a constitutional convention, which shall meet
in the hall of the House of Representatives in the capital of the Philippine
Islands, at such time as the Philippine Legislature may fix, but not later than
October 1, 1934, to formulate and draft a constitution for the government of the
Commonwealth of the Philippine Islands, subject to the conditions and qual-
ifications prescribed in this Act, which shall exercise jurisdiction over all the

21 29 August 1916. 39 Stat. 545.

22 24 March 1934. 48 Stat. 456.

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territory ceded to the United States by the treaty of peace concluded between
the United States and Spain on the 10th day of December, 1898, the boundaries
of which are set forth in Article iii of said treaty, together with those islands
embraced in the treaty between Spain and the United States concluded at
Washington on the 7th day of November, 1900. The Philippine Legislature shall
provide for the necessary expenses of such convention.

Character of Constitution—​Mandatory Provisions

section 2. (a) The constitution formulated and drafted shall be republican in
form, shall contain a bill of rights, and shall, either as a part thereof or in an
ordinance appended thereto, contain provisions to the effect that, pending the
final and complete withdrawal of the sovereignty of the United States over the
Philippine Islands—​
(1) All citizens of the Philippine Islands shall owe allegiance to the United
States.
…

Recognition of Philippine Independence and Withdrawal of

American Sovereignty
section 10. (a) On the 4th day of July immediately following the expiration of
a period of ten years from the date of the inauguration of the new government
under the constitution provided for in this Act the President of the United
States shall by proclamation withdraw and surrender all right of possession,
supervision, jurisdiction, control, or sovereignty then existing and exercised by
the United States in and over the territory and people of the Philippine Islands,
including all military and other reservations of the Government of the United
States in the Philippines (except such naval reservations and fueling stations
as are reserved under section 5), and, on behalf of the United States, shall rec-
ognize the independence of the Philippine Islands as a separate and self-​gov-
erning nation and acknowledge the authority and control over the same of the
government instituted by the people thereof, under the constitution then in
force.
….

Notification to Foreign Governments

section 12. Upon the proclamation and recognition of the independence of
the Philippine Islands, the President shall notify the governments with which
the United States is in diplomatic correspondence thereof and invite said gov-
ernments to recognize the independence of the Philippine Islands.

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Constituting the Philippine State in International Law 31

xiv U.S. President Harry S. Truman’s Proclamation of Philippine

Independence (1946) 23

whereas the United States of America by the Treaty of Peace with Spain of
December 10, 1898, commonly known as the Treaty of Paris, and by the Treaty
with Spain of November 7, 1900, did acquire sovereignty over the Philippines,
and by the Convention of January 2, 1930, with Great Britain did delimit the
boundary between the Philippine Archipelago and the State of North Borneo,
and whereas the United States of America has consistently and faithfully
during the past forty-​eight years exercised jurisdiction and control over the
Philippines and its people; and
whereas it has been the repeated declaration of the legislative and exec-
utive branches of the Government of the United States of America that full
independence would be granted the Philippines as soon as the people of the
Philippines were prepared to assume this obligation; and
whereas the people of the Philippines have clearly demonstrated their
capacity for self-​government; and …
now, therefore, i, harry S. truman, President of the United States of
America, acting … do proclaim that … the United States of America hereby
withdraws and surrenders all rights of possession, supervision, jurisdiction,
control, or sovereignty now existing and exercised by the United States of
America in and over the territory and people of the Philippines; and
On behalf of the United States of America, I do hereby recognize the inde-
pendence of the Philippines as a separate and self-​governing nation and
acknowledge the authority and control over the same of the government insti-
tuted by the people thereof, under the constitution now in force.

xv Philippine Statute Changing Date of Philippine Independence Day

from July 4 (from the Date of Truman’s Proclamation) to June 12
(from the Date of Aguinaldo’s 1898 Declaration of Independence)24

section 1. The twelfth day of June is hereby proclaimed as the Philippine

Independence Day, and all citizens of the Philippines are enjoined to observe
such day with rites befitting Independence Day.
23 4 July 1946. Proclamation of Philippine Independence read by U.S. High
Commissioner Paul V. McNutt on the Inauguration of the Republic of the
Philippines, available at https://​www.officialgazette.gov.ph/​1946/​07/​04/​proclamation
-​of-​philippine-​independence-​read-​by-​u- ​s-​high- ​commissioner-​paul-​v-​mcnutt- ​on-​the
-​inauguration-​of-​the-​republic-​of-​the-​philippines-​july-​4-​1946/​.
24 Rep. Act No. 4166 (1964).

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 ­c hapter 2

The Armed Conflict with the United States

before the Courts and Courts-​Martial

Overview

The previous chapter contained the main legal instruments that documented
the struggles against Spanish and American colonialism, as it were, from
above, at the level of statesmen and revolutionary heroes. This section con-
tains judicial decisions that look at war from below, involving either combat-
ants being prosecuted for breaches of the laws of war, or the victims who were
at the receiving end of those abuses.
Moreover, while the previous chapter addressed the confusion arising from
the overlap of two armed conflicts, this chapter pursues that inquiry into the
legal consequences of that confusion.
The first challenge is identifying “who was in charge”, that is to say, determin-
ing who held sovereignty over the Philippines, whether Filipinos had willed it
into being through their revolution, or it had been merely transferred by Spain
to the United States via the Treaty of Paris.
The second challenge is keeping track of when international law governed
the situation, and when it was internalized into domestic law, that is, of
the United States. The prevailing interpretation would trace governmental
authority from the Treaty of Paris, and then various constituent instruments
issued by the United States, culminating with the 1935 Constitution under
which the Philippines “received” its independence from the United States
on 4 July 1946. In that context, the acts of the Filipino revolutionaries are
recognized only through the amnesty declared by U.S. President Theodore
Roosevelt. In other words, this demonstrates the process whereby wars of
independence are characterized by the colonizer as internal conflicts gov-
erned by the colonizer’s national law, rather than as an international con-
flict between two states, in this case, the Philippine Republic and the United
States.1

1 See Georges Abi-​Saab, Wars of National Liberation in the Geneva Conventions and Protocols, in
165 Recueil des Cours 353–​4 48 (1981).

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004469723_004

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The Armed Conflict with the United States 33

Courts-​Martial for Breaches of the Laws of War

The first set are decisions rendered by courts-​martial of the U.S. Army, fully
documented in a formal inquiry by the U.S. Senate which was triggered off
by public outrage on war crimes and other abuses committed by U.S. troops
in the conduct of the war in the Philippines. These records are doubly signif-
icant. It was the U.S. Senate and courts-​martial that documented the horren-
dous crimes committed by U.S. troops during the Philippine-​American War,
including the torture and murder of civilians, showing the domestic political
outrage against the war-​time atrocities and the legal mechanisms in place to
enforce accountability. They show the application of the U.S. Articles of War
and the Lieber Code, cited in the decisions as General Order No. 100, which
was issued U.S. President Abraham Lincoln to the Union Forces during the
American Civil War.
On the other hand, the excerpts demonstrate the tortuous reasoning that
led to light sentences, acquittals or non-​prosecutions that show the political
sensitivities of the time. The excerpts also show examples of the recourse to
racism (e.g., referring to natives as “the black” and described with an “oppro-
brious epithet”) and invidious stereotypes (e.g., Filipino revolutionists as “cruel
and treacherous savages” and “semicivilized enem[ies]”).
It deals with a chain of reprisals that culminated with a surprise attack by
the Filipino revolutionists, killing American soldiers and officers, one of the
darkest chapters of the American campaign in the Philippines, that in turn
triggered off harsh retaliation against local civilian population.

On 28 September 1901, at Balangiga, a village on the island of Samar, guer-

rillas and local villagers attacked and massacred forty-​eight American
soldiers, forcing the twenty-​six survivors of Company C, 9th US Infantry,
to flee for their lives. What came to be known as the ‘Balangiga Massacre’
generated frantic reactions in the American ranks. General Adna
R. Chaffee, who had replaced General Arthur McArthur as military com-
mander of the archipelago, selected Brigadier-​General Jacob H. Smith to
restore order on the island of Samar, a task that the latter carried out with
brutal efficiency. Later that same year, one of his subordinates, Major
Littleton w.t. Waller, apparently of his own resolve, but acting upon
General Smith’s general orders, decided to organize a reconnaissance
mission composed of 6 officers, 50 marines and more than 30 Filipino
carriers and scouts who were to travel across the island. Unprepared and
disoriented, the expedition soon got lost in the mountainous region of
Samar. After about a week, unable to find an escape route, the group was

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34  Chapter 2

forced to split with the healthier soldiers heading back to where they had
come from. Several days later, the remainder of the group was eventually
rescued, but by that time eleven marines had either died or disappeared.
The Filipino carriers were quickly accused of various treacheries and
said to be responsible for the debacle. Major Waller, sick with fever and
greatly weakened by his recent misadventure, ordered his subordinate,
Lieutenant John H. Day, to execute eleven Filipinos, including ten of the
surviving carriers, thereby ‘providing through his grim arithmetic a total
of eleven victims in exchange for the eleven marines he had lost in the
march’. That same day, without trial, the eleven victims were lined up by
Lieutenant Day and shot dead by a firing squad.2

News reports in the American press about abuses in the Philippine3 and the
ensuing public indignation triggered off Senate investigations in the United
States. The report on the court-​martial proceedings document the legal
response to the public outrage. The highest-​ranking officer involved, Brig. Gen.
Jacob H. Smith, was sentenced merely to be “admonished”, the court-​martial
expressly calling its sentence “lenient.” U.S. Secretary of State Elihu Root, while
noting that Smith’s subordinates did not take his orders literally “notwith-
standing the fact that a desperate struggle was being conducted with a cruel
and savage foe”, nonetheless called the sentence “exceeding light” and recom-
mended to retire him from the service.

It is [sic] not longer for the interest of the service that General Smith
should continue to exercise the command of his rank [and] I recommend
that [the U.S. President] … now retire him from active service.

U.S. President Theodore Roosevelt approved Root’s recommendation. Even

then, President Roosevelt still acknowledged Smith’s “long career distinguished
for gallantry” as against the “well-​nigh intolerable provocations … from the
cruelty, treachery and total disregard of the rules and customs of civilized war-
fare on the part of its foes.” This controversy rankled on over the next century

2 Guénaël Mettraux, US Courts-​Martial and the Armed Conflict in the Philippines (1899–​
1902): Their Contribution to National Case Law on War Crimes, in I Journal of International
Criminal Justice 1 (2003).
3 Filipinos Burned Bodies of Soldiers at Balangiga: Charred Remains of 45 Americans Found—​
Native Official Led the Murderous Bolomen, The New York Times (Oct. 3, 1901), available
at: https://​www.nytimes.com/​1901/​10/​03/​archives/​filipinos-​burned-​bodies-​of-​soldiers-​at-​
balangiga-​charred-​remains-​of.html?searchResultPosition=2.

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The Armed Conflict with the United States 35

and it was only in 2018 that the United States finally returned the church bells
that they had seized as prize of war.4
This chapter also includes the other famous Balangiga case, against Major
Littleton Waller, Brigadier General Jacob Smith’s subordinate officer, who exe-
cuted eleven of his Filipino porters and guides whom he blamed for their “fail-
ure to obtain sufficient supplies of food.” Significantly, Waller pleaded guilty to
having killed the victims but rejected its characterization as murder. Despite
the overwhelming evidence, the court-​martial, in a strange twist in its reason-
ing, actually acquitted him of murder though, on review, he was found guilty
of a “minor included offense.”
The next case is that against Major Edwin F. Glenn, one of the many cases
involving the “water cure”, the form of torture which gained most notoriety
in the Philippine campaign, inflicted upon a town “president” in the island of
Panay. The case describes in sufficient clarity and detail how the water cure
was conducted, and how it was dealt with as a matter of law. The court-​martial
held that the Lieber Code was applicable even in the conduct of hostilities
against guerilla forces. It also documents, on one hand, the junior officers’
efforts to conceal the torture from their superior officers and, on the other, the
“sympathy of the court” who, after finding guilt and imposing a light sentence,
even recommended clemency. On review, clemency was denied and the pen-
alty was affirmed.
The next excerpt is from the case against Lieutenant Preston Brown for the
murder of a Filipino who had just been captured and who was shot while try-
ing to escape. The decision expressly invokes international law applicable in
war time and excludes the jurisdiction of ordinary civil courts. Accordingly, the
decision treated the victim as a prisoner of war. Yet while the decision recog-
nizes that the Lieber Code does not punish a prisoner “simply for his attempt
to escape, which the law of war does not consider a crime”, the case record
shows that it was the policy, as regards escaping prisoners, “to shoot and shoot
quick.” In the end, Brown was acquitted of murder but punished merely for
the “lack of self-​control”, for which the original sentence of dismissal was com-
muted to a demotion and a fine amounting to the forfeiture of half-​month’s
wages for nine months.
Finally, the last excerpt is from a long investigation of the death of a par-
ish priest of the town of Molo in the island of Panay, suspected to be either
a rebel sympathizer or leader, and who died after he was subjected to water

4 U.S. Returns Bells Taken as War Booty From Philippines in 1901, The New York Times (Dec. 11,
2018), available at: https://​www.nytimes.com/​2018/​12/​11/​world/​asia/​balangiga-​bells-​united-​
states-​philippines.html?searchResultPosition=6.

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36  Chapter 2

cure and still refused to reveal information about the rebels. As with the earlier
court-​martial excerpts, the torture of the priest was withheld from the supe-
rior military officers and became public only after a report in the Washington
Post. Moreover, the investigation dwelt at length on the question of the appli-
cable law, whether it was the “law of nations” because this incident arose in
December 1900 at the height of hostilities; civil courts because U.S. President
Roosevelt had declared the end of the conflict in July 1902 and the investigation
arose only in 1902 after the Washington Post exposé; and finally, in that case,
whose national law would apply. The Senate report unfortunately does not set-
tle the question but merely refers the matter to the U.S. Attorney-​General.

Arbitral Proceedings over Damages Caused by the “Insurgents”

The second set decisions were rendered by an international arbitration tri-

bunal set up by the United States and the United Kingdom. The cases are all
rather mundane commercial claims for damages, but their significance for us
is that they demonstrate the legal implications of larger policy decisions. For
instance, the Iloilo Claim documents the success of the revolutionary troops in
what was then the Panay Republic that the revolutionists had established vis-​
à-​vis dilemma of the U.S. Navy on whether it could engage with the Philippine
revolutionists during the period before the Treaty of Paris took effect. The Navy
had been instructed by the U.S. President to “send necessary troops to Iloilo
[but to ensure] that there should be no conflict with the insurgents”.5 The
Zafiro case actually deals with looting by the crew of two commercial ships
contracted by Admiral Dewey as a supply ship for his squadron, and the issue
of whether the U.S. was liable for the conduct of the civilian crew.

U.S. Amnesty of the “Insurgents”

The third set of decisions were rendered by the Supreme Court of the
Philippines, which was created in 1901 by the U.S. colonial government in
Manila, where the defendants had been charged criminally for acts arising
from the armed resistance to the United States but, claiming to be members
of the Filipino revolutionary army, invoked U.S. President Roosevelt’s amnesty
of 1902.

5 See supra Ch. i.iv.F, Message to General Elwell Stephen Otis in Manila.

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The Armed Conflict with the United States 37

The most important of them is U.S. v. Pagaduan, which was interestingly

enough written by Justice George Malcolm, leading American lawyer and
pioneering law dean in the Philippines. He recognized the “existence of the
Filipino revolutionary government” and characterized it “from the standpoint
of International Law [as a] ‘de facto government’ ”, much to the chagrin of his
fellow American justice on the Philippine Supreme Court who disavowed it as
superfluous dictum.6
This and the other cases involved acts by the Philippine revolutionary army
that could have otherwise amounted to war crimes: U.S. v. Lardizabal, the
execution of an American prisoner-​of-​war; U.S. v. Pacheco, the execution of
a suspected spy; and U.S. v. Querijero, another execution where, significantly,
one victim was Lucio Quezon, father of the future President, Manuel Quezon.
Lucio was executed, according to the accused, because he “belonged to the
party which advocated that the Philippine should remain under the Spanish
sovereignty, and that Lucio had joined the soldiers of [local Katipunan chief]
Novicio, but afterwards had deserted and withdrawn in the pueblo.” Manuel
Quezon testified for the prosecution. But the court however disbelieved his
testimony because he was in Manila during the relevant period and did not
return to Baler until the end of 1898.

i Courts-​Martial by the United States (1901–​02)7

A Court-​Martial of Brigadier General Jacob H. Smith, U.S. Army (1902)

1 Headquarters of the Army, Adjutant-​General’s Office. General
Orders, No. 80 (1902)8
Before a general court-​martial, convened at Manila, p.i., pursuant to Special
Orders, No. 1, War Department, Adjutant-​General’s Office … was arraigned and
tried –​
Brig. Gen. Jacob H. Smith, U.S. Army,
Charge.—​”Conduct to the prejudice of good order and military discipline.”
Specification.—​”In that Brig. Gen. Jacob H. Smith, U.S. Army, command-
ing general of the Sixth Separate Brigade, Division of the Philippines, did give

6 U.S. v. Pagaduan, infra, n. 19, Johnson, J., concurring (“It has been the policy of this court since
its organization not to include in a decision any doctrine or argument which is not germane
to the particular question presented.”).
7 Trials or Courts-​Martial in the Philippine Islands in Consequence of Certain Instructions, S. Doc.
No. 213, 57th Cong., 2d Session (1903).
8 16 July 1902, supra note 7 at 2.

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38  Chapter 2

instructions in regard to the conduct of hostilities in the island of Samar, p.i.,

to his subordinate officer, Maj. l.w.t. Waller, U.S. Marine Corps, the said Waller
being under his command and commanding at the time a subterritorial dis-
trict in the island of Samar, p.i., in language and words to wit: ‘I want no pris-
oners’ (meaning thereby that giving of quarter was not desired or required)
and ‘I wish you to kill and burn. The more you kill and burn, the better you
will please me,’ and ‘the interior of Samar must be made a howling wilderness,’
and did further give instructions to said Major Waller that he (General Smith)
wanted all persons killed who were capable of bearing arms, and did, in reply
to a question by said Major Waller, asking for an age limit, designate the age
limit as 10 years of age. This at or near the island of Samar, p.i., between the
23rd day of October, 1901, and the 30th day of November, 1901.”
To which charge and specification the accused, Brig. Gen. Jacob H. Smith,
U.S. Army, pleaded as follows:
To the specification, “Not Guilty.”
To the charge, “Not Guilty.”
Finding.—​Of the specification: “Guilty, except the words ‘meaning thereby
that giving of quarter was not desired or required,’ and of the excepted words
‘not guilty’; and substituting for the words ‘capable of bearing arms’ the words
‘capable of bearing arms and in actual hostilities against the United States,’ and
of the excepted words ‘not guilty’ and of the substituted word ‘guilty.’ ”
Of the charge, “guilty.”
Sentence.—​And the court does therefore sentence him, Brig. Gen. Jacob
H. Smith, U.S. Army, “to be admonished by the reviewing authority.” The court
is thus lenient in view of the undisputed evidence that the accused did not
mean everything that his unexplained language implied; that his subordinates
did not gather such a meaning, and that the orders were neve executed in such
sense, notwithstanding the fact that a desperate struggle was being conducted
with a cruel and savage foe.

2 Secretary of War Elihu Root to President Theodore Roosevelt

(1902)9
An examination of the evidence has satisfied me that the conviction was just,
and that the reasons stated for the very light sentence imposed are sustained
by the facts. General Smith, in his conversation with Major Waller, was guilty
of intemperate, inconsiderate, and violent expressions, which, if accepted lit-
erally, would grossly violate the humane rules governing American armies in

9 16 July 1902, supra note 7 at 3.

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The Armed Conflict with the United States 39

the field, and if followed would have brought lasting disgrace upon the military
service of the United States. Fortunately they were not taken literally and were
not followed. No women or children or helpless persons or noncombatants or
prisoners were put to death in pursuance of them.
An examination of the record and proceedings upon the trial of Major
Waller, which immediately preceded that of General Smith, shows that the
instructions in question bore no relation to the acts for which Major Waller
was tried, and were not alleged by hm as justification for those acts. Major
Waller was tried to causing certain natives, who had acted as bearers or guides
of one of his expeditions, to be put to death for treachery without proper trial;
and he defended his action, not upon the ground of any orders received from
General Smith, but upon the ground that as commanding officer he was justi-
fied by the laws of war.
General Smith’s written and printed orders, and the actual conduct of mil-
itary operations in Samar, were justified by the history and conditions of the
warfare with the cruel and treacherous savages who inhabited the island, and
their entire disregard of the laws of war, were wholly within the limitations
of General Orders, No. 100, of 1863, and were sustained by precedents of the
highest authority. …
It is due, however, to the good sense and self-​restraint of General Smith’s
subordinates, and their regard for the laws of war, rather than to his own self-​
control and judgment, that his intemperate and unjustifiable verbal instruc-
tions were not followed, and that he is relieved from the indelible stain which
would have resulted from a literal compliance with them.
It is the duty of a general officer whose age and experience have brought
him to high command not to incite his subordinates to acts of lawless violence,
but to so explain to them the application of the laws of war and the limita-
tions upon their conduct as to prevent transgressions upon their part and sup-
plement their comparative inexperience by his wise control. In this General
Smith has signally failed, and for this he has been justly convicted. Although
the sentence is exceedingly light, it carries with it a condemnation which, for
an officer of his rank and age, is really a severe punishment. For this reason,
and for the further reason that General Smith has served his country long and
faithfully, has exhibited high courage and good conduct in many battles, has
been seriously wounded in the civil war and in the war with Spain, and is about
concluding a long and honorable career as a faithful and loyal servant of his
country, I recommend that the mild sentence imposed be confirmed.
Should you approve the findings and sentence of the court in accordance
with this recommendation, I feel bound to say, further, that … it is not [sic]
longer for the interest of the service that General Smith should continue to

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40  Chapter 2

exercise the command of his rank [and] I recommend that you exercise the
discretion vested in you by law and now retire him from active service.

3 U.S. President Theodore Roosevelt’s Decision (1902)10

The findings and sentence of the court are approved. I am well aware of the
danger and great difficulty of the task our Army has had in the Philippine
Islands and of the well-​nigh intolerable provocations it has received from the
cruelty, treachery, and total disregard of the rules and customs of civilized
warfare on the part of its foes. I also heartily approve the employment of the
sternest measures necessary to put a stop to such atrocities, and to bring this
war to a close. … But the very fact that warfare is of such character as to afford
infinite provocation for the commission of acts of cruelty by junior officers
and the enlisted men, must make the officers in high and responsible position
peculiarly careful in their bearing and conduct so as to keep a moral check over
any acts of an improper character by their subordinates. … But there have been
exceptions; there have been instances of the use of torture and of improper
heartlessness in warfare on the part of individuals or small detachments. In the
recent campaign ordered by General Smith, the shooting of the native bearers
by the orders of Major Waller was an act which sullied the American name
and can be but partly excused because of Major Waller’s mental condition at
the time; this mental condition being due to the fearful hardship and suffering
which he had undergone in his campaign. It is impossible to tell exactly how
much influence language like that used by General Smith may have had in pre-
paring the minds of those under him for the commission of the deeds which
we regret. Loose and violent talk by an officer of high rank is always likely to
excite to wrongdoing those among his subordinates whose wills are weak or
whose passions are strong.
General Smith has behind him a long career distinguished for gallantry and
on the whole for good conduct. Taken in full, his work has been such as to
reflect good credit upon the American Army, and therefore upon the nation;
and it is deeply to be regretted that he should have so acted in this instance as
to interfere with his further usefulness in the Army. I hereby direct that he be
retired from the active list.

B Court-​Martial of Major Littleton w.t. Waller (1902)11

Maj. Littleton W. T. Waller, U. S. Marine Corps

10 14 July 1902, supra note 7 at 5.

11 7 May 1902, supra note 7 at 43–​46.

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The Armed Conflict with the United States 41

Charge.—​”Murder, in violation of the fifty-​eighth article of war.”

Specification.—​”In that Maj. Littleton w.t. Waller, U.S. Marine Corps,
being then and there detached for service with the U. S. Army, by authority
of the President of the United States, did, in time of war, willfully and feloni-
ously and with malice aforethought, murder and kill 11 men, names unknown,
natives of the Philippine Islands, by ordering and causing his subordinate offi-
cer under his command, John Horace Arthur Day, first lieutenant, U. S. Marine
Corps, and a firing detail of enlisted men under his said command, to take out
said 11 men and shoot them to death, which said order was then and there car-
ried into execution, and said 11 natives, and each of them, were shot with rifles,
from the effects of which they then and there died.”
“This at Basey, Island of Samar, P. I., on or about the 20th day of January, 1902.”
Plea.—​To the specification, “Guilty,” except the words “willfully and felo-
niously and with malice aforethought murder and;” and to those words, “ Not
guilty.”
To the charge, “Not guilty.”
Finding.—​Of the specification, “Finds the facts as charged, except the
words ‘willfully and feloniously and with malice aforethought, murder and,’
but attach no criminality thereto, and of the excepted words, not guilty.”
Of the “charge, “Not guilty.”
And the court does therefore “acquit him, the said Maj. Littleton W. T. Waller,
U. S. Marine Corps.”
In this case justice to the military service of the United States, common fair-
ness to the hapless natives whom the accused, Maj. Littleton W. T. Waller, U. S.
Marine, Corps, sent to their death, and the need that this act, which partook
more of unlawful retaliation than a justifiable act of war, shall not pass into
an approved precedent to be followed by any, among the many young officers
of the service to-​day, to their discredit, demand that the finding and acquit-
tal shall not meet with unqualified approval. In the opinion of the reviewing
authority, the evidence is opposed to the finding of the court.
Appealing to the facts of record, it appears that the accused, in an attempt
to lead a detachment of his command, consisting of 4 officers, 54 enlisted
men, 2 guides, and 33 “cargadores “ (burden bearers), from east to west across
the island of Samar, in search of the enemy, found himself about midway of
his course in the heart of an uninhabited and mountainous section, without
rations and without medical attendance, the strength of his men reduced in
vitality by exposure to frequent rains, by the hardships of the march over rocky
ledges, mountainous spurs, and the labor involved in cutting their way through
many otherwise impenetrable jungles.

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To turn back or press forward was now equally perilous for the command.
Taking 15 of his strongest men and 10 cargadores with him, the accused went
forward in the hope of securing relief. The officer left behind in command,
with like purpose, turned back upon the trail, taking 6 men and 6 cargadores,
and leaving instructions with the only remaining officer now with the main
body to follow. Both relief parties reached their separate destinations without
loss of life, but the weaker men, left behind, were too far spent to make hopeful
progress. Their shoes were worn away, their clothing hung in tatters, many were
stricken with fever, their feet bruised and bleeding, their bodies lacerated by
thorns, and. adding to their wretchedness, the leeches which abound attacked
and greatly aggravated their exposed wounds. If any blame attaches for these
deplorable results, so far as they had developed before the return march com-
menced, it did not rest with the executed men.
Both relief parties exerted themselves to return or send back succor to their
more unfortunate comrades, one party finally succeeding. The survivors, when
rescued, had been reduced to the verge of death, some being delirious and all
pitiful objects of commiseration, and ten of their comrades had been left dead
or dying along the trail. For two weeks the survivors had subsisted upon edible
roots and fruits, but these were not abundant, nor, it may be assumed, were
they as nourishing to the marines as to the natives. To the cry for food the car-
gadores, it is alleged, did not efficiently [sic] respond, and the suspicion arose
in the minds of the starving men that the cargadores were conniving at their
destruction, a suspicion not warranted by the actual facts as they now appear
of record.
So suspecting, it can be understood why, in their weakened mental and
physical condition, the men, after their rescue, cried out for the punishment
of the cargadores, to whose failure to obtain sufficient supplies of food they
attributed all their sufferings. Their officers, from their sick beds, voiced the
revengeful anger of their men in a telephone message to the accused, then
at Basey, advising that the cargadores be killed. The accused received this
message while himself sick and prostrate from fever and suffering acute pain
of body due to exposure and exertion in behalf of his men and from men-
tal anguish concerning their long doubtful fate. The cargadores were placed
under guard, sent around by boat to Basey, and delivered to the accused, who,
upon their arrival, without form of trial and upon the briefest inquiry, executed
all against whom the cry of retaliation had been raised.
With the exception of three who deserted no overt acts were committed by
the cargadores; on the contrary, those sent to their death continued to the last
to carry the arms and ammunition of the men after they were no longer able to
bear them, and to render in their impassive way such services as deepens the

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conviction that without their assistance many of the marines who now survive
would also have perished.
While the evidence from which the preceding conclusion readily flows was
not before the accused, who can only rightfully be judged by what he knew
when he issued his fatal order, still it remains true that it was his imperative
duty to have fully informed himself with respect thereto and also to have con-
fined his action within his undoubted legitimate powers. The execution of
individuals and bands of men of the enemy by summary means is authorized
by the laws of war and rests in the discretion of any commanding officer on
the spot in certain urgent cases. As an instance, the laws of war sanction the
immediate killing of ununiformed men, acting singly or in bands, when caught
within the lines in the act of destroying or attempting to destroy bridges, rail-
roads, or telegraph lines. These offenses go to the safety of an army and to the
peril of mighty interests, which brook no appeal. Other instances of imperative
urgency where the immediate execution of men for crimes committed in vio-
lation of the laws of war might he cited, but those laws do not sanction, and
the spirit of the age will not suffer that any officer may, upon the dictates of
his own will, inflict death upon helpless prisoners committed to his care. Any
other view looks to the methods of the savage and away from the reasonable
demand of civilized nations that war shall be prosecuted with the least possi-
ble cruelty and injustice.
In this instance there was no overwhelming necessity, no impending dan-
ger, no imperative interests, and, on the part of the executed natives, no overt
acts to justify the summary course pursued. The accused was in telephonic
communication with his brigade commander, but deliberately chose not to
consult him regarding his contemplated action. Rather than forego the exe-
cution of his unrestrained will, he assumed the power that the laws of war, as
modified by the military laws of the United States and the customs of the ser-
vice, confer only upon a commanding general in time of war and on the field
of military operations. The necessity and wisdom of this reservation in the law
is clearly exemplified in this case.
In view of the foregoing, and giving heed to the combination of influences
which affected the mental attitude of the accused, so much of the finding upon
the specification and charge as finds him not guilty of murder is approved.
After careful consideration of the evidence the reviewing authority is,
however, at a loss to understand why the court did not find a minor included
offense, and being of the opinion that there has been a miscarriage of justice in
this case, the finding, with the exception noted, and the acquittal as it appears
of record, are disapproved.

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C Court-​Martial of Major Edwin F. Glenn, Fifth U.S. Infantry (1902)12

Major Glenn was tried on the following charge and specification (record, p. 5):
Charge.—​Conduct to the prejudice of good order and military discipline,
in violation of the sixty-​second article of war.
Specification.—​In that Maj. Edwin F. Glenn, Fifth U.S. Infantry (pro-
moted from captain, Twenty-​fifth U. S. Infantry), being on duty commanding
the United States troops while at the pueblo of Igbarras, province of Iloilo,
island of Panay, Philippine Islands, and having in his charge one Tobeniano
Ealdama, presidente of the town of Igbarras aforesaid, did unlawfully order,
direct, and, by his presence and authority, cause an officer and soldiers, subject
to his [sic] the said Glenn’s command, to execute upon him, the said Tobeniano
Ealdama, a method of punishment commonly known in the Philippine Islands
as the “water cure; “ that is, did cause water to be introduced into the mouth
and stomach of the said Ealdama against his will. This at Igbarras, Panay, on or
about the 27th day of November, 1900.
The accused pleaded “Not guilty “ to the charge and specification, but sub-
mitted the following statement, in the nature of an admission of fact, in con-
nection with his arraignment:

The defendant is prepared to admit that he is Maj. Edwin F. Glenn, Fifth

U. S. Infantry; that he was promoted from captain, Twenty-​fifth U. S.
Infantry; that he was on duty and in command of United States troops
at Igbaras, Iloilo Province, island of Panay, P. I., and had in his charge one
Tobeniano Ealdama, presidente of the town of Igbaras; that lie did order
and direct, and by his presence and authority did cause an officer and
soldiers subject to his command to execute upon the said Islands as the
“water cure”—​that is, did cause water to be introduced into his Tobeniano
Kalilama a method of punishment commonly known in the Philippine
mouth and stomach, and that this was at the pueblo of Igbaras, Panay, on
or about November 27, 1900.

[The Judge Advocate General proceeded to state that two enlisted men who
had served in the Philippines testified before a U.S. Senate investigation
brought about by the “high state of excitement in the United States upon the
subject of the so-​called water cure.” He then cited the facts in the record:]

12 26 July 1902, supra note 7 at 17–​28.

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The Armed Conflict with the United States 45

Tobeniano Ealdama, the native who was subjected to the water cure by
Major Glenn's order, was called as a witness for the prosecution and testi-
fied (in Spanish) that he was the presidente of the two Igbarras, in Panay,
during a considerable part of the year 1900, and that he acted as such
presidente under the supervision of the United States military authori-
ties. On the 27th of November, 1900, Major Glenn arrived at Igbarras in
command of a detachment of United States troops, established his head-
quarters at the convent, and sent for witness (Ealdama). The witness was
asked where General Delgado was, and replied that he was not in the
town of Igbarras. He was then asked [citation omitted]:
What did they do to you then?—​A. They told me if I did not tell I would
be punished. They told me to take my shirt off, and they tied my arms. The
captain and doctor and lieutenant sat at the table and there were some
soldiers in the hallway. They laid me on my back and had some water
with a faucet, and held my arms tight and proceeded to open my mouth.
After they gave me some water for a little while the doctor told them to
stop, and then asked me whereabouts of General Delgado, . I told them
that I did not know where the general was, and they proceeded again
with the water. They gave me water, some through the nose and some
through the mouth. I had shortness of breath and pain in the stomach.
Q. Did it have any other effect on you?—​A. My throat also hurt me on
account of so much water put through it.
Q. How much water did you take in?—​A. Four bottles, about four bot-
tles, as best I know.
Q. What effect did that have upon you?—​A. I had some pain in my
throat,
Q. Did you retain this water on your stomach?—​A. I kept it on my
stomach.
Q. Did any come off of it?—​A. Yes, sir; I did vomit some.
Q. What did they do with you then?—​A. They asked me quite a num-
ber of questions and I did not know the answer to them, and the Major
said, “All right, let him up.”
Q. What did they do to you then?—​A. I went to the table and sat down
and waited, and they administered water to the school-​teacher while
I was waiting.
Q. Where did you go then?—​A. I went downstairs.
Q. What did they do to you there?—​A. They asked me if I was in com-
munication with the insurrectos. I said that I was not.
Q. What did they do to you then?—​A. They said, “You are a liar. Take
off your clothes.”

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Q. Well, go on.—​A. Then I was sleeping. (The interpreter said that he

thought the witness meant that he was in a recumbent position.) They
brought a kind of syringe.
Q. What did they do with it?—​A. Open my mouth and put water in
my mouth.
Q. What kind?—​A. Salty.
Q. How much did they put in?—​A. About one bottle.
Q. What effect did that have?—​A. It was very bitter.
Q. Did it have any other effect?—​A. My stomach and throat pained
me, and also the nose where they passed the salt water through.
Major Glenn (to the interpreter). Did not he say, “Where the salt water
passed through?” I am morally certain that he did. He stated that they put
the water in his mouth. He was asked if this hurt him, and said, “Yes, as it
passed through.”
The Interpreter. He said that the water hurt his stomach; that he had
pain in his stomach and throat, and also in his nose from the water hav-
ing passed through it.
….

Major Glenn’s testimony as to the character and duration of the treatment

(Record, p. 44), is as follows:

As stated, he was taken to this tank, the spigot of which, to the best of my
judgment, was about 10 inches above the floor, allowing 4 to 6 inches to
his face. The water was turned on in a small stream, so as to drop on his
upper lip. He was told that he must tell us, and that as soon as he gave
any sign that he wished to say anything this was stopped. He was not
abused personally in any way, and this was the only punishment that was
administered to him as I could see. This lasted at this particular place for
perhaps three minutes. I am certain that it could not have lasted for five
minutes. Downstairs I am not so certain as to what was used, whether it
was a cup or whether one of those small bulb syringes; my impression is
the latter, and that the water simply played upon his lip, as stated above.
As soon as he indicated that he would talk, he was allowed to do so. I wish
to negative most positively that he was upstairs in the convent an hour or
anything like an hour; my first recollection is not to exceed fifteen min-
utes all told, if so long.
Q. Was anything like force used in inserting water into the mouth?—​A.
Not at all; it was given exactly as stated to you; if he opened his mouth it

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was run into his mouth, and if not it simply played upon his upper lip. He
could move his head from right to left.

….
It is proper to say that subsequent to the occurrences above testified to, the
witness (Tobeniano Ealdama), was tried by a military commission at Iloilo
between June 7 and 14, 1901, under the charge of “Being a war traitor,” the spec-
ification alleging holding intercourse with the enemy by means of letters, con-
tributing money, and food to the insurrectionary forces, and directing others,
members of said forces, to collect contributions. He was also charged with
“violating the laws of war” by joining and becoming a captain in the insurrec-
tionary forces and recruiting and swearing into the Insurgent service the mem-
bers of the local police force of Igbarras. He was found guilty of the offenses
charged and sentenced to confinement at hard labor for ten years. He was
released from confinement to enable him to testify as a witness in this case.
….
As to the defense that the administration of the water cure was war ranted
by military necessity, it will be necessary to examine the circumstances attend-
ing the punishment in question and to determine from the facts the nature and
character of the emergency. It appears in evidence (Record, p. 9) that Major
Glenn desired to learn from Ealdama—​
1. Where General Delgado was.
2. Whether Ealdama was in communication with the insurgents (Record,
p. 10).
3. The number of insurgents in the vicinity and their location (Record,
pp. 11, 16).
It would appear that it was also attempted to obtain information as to past
acts of Ealdama in support or furtherance of the objects of the insurrection.
Ealdama and a native policeman were then required to act as guides for an
expedition conducted by Major Glenn against a camp of insurgents which was
believed to exist in the vicinity of Igbarras. The expedition set out immediately
after Ealdama’s release from the administration of the water cure. An encoun-
ter seems to have taken place with a small force of the enemy and a new cuar-
tel was discovered and burned. A native policeman, who either yielded to
compulsion or was affected by the treatment accorded to Ealdama, appears
to have actually guided the command to the place where the insurgents are
said to have been found and the cuartel destroyed. The foregoing represents
the emergency which was believed to exist and indicates the measure of the
corresponding military necessity.

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The law governing the case is set forth in paragraph 16, General Orders, No.
100, which provides that—​

Military necessity does not admit of cruelty, that is, the infliction of suf-
fering for the sake of suffering or for revenge, nor of maiming or wound-
ing, except in fight, nor of torture to extort confessions.

The offense of the accused consisted in a resort to torture with a view to

extort a confession. The question is, did an emergency exist, so instant and
important as to justify the disobedience of the plain requirements of General
Order 100? I think not. A rare or isolated case can be conceived of in which
the movement of an army or a military operation of importance may depend
upon obtaining the unwilling service of an inhabitant of the enemy’s coun-
try in the capacity of guide; such did occur, indeed, during the civil war. In
such a case a similar resort to force may be justified as a measure of emer-
gency, but no such case existed in the vicinity of Igbarras at the date of the
specifications.
It must be remembered also that the resort to torture is attempted to be jus-
tified, not as an exceptional occurrence, but as the habitual method of obtain-
ing information from individual insurgents. The accused took considerable
pains to establish the fact that torture was the usual practice of the Spaniards
(Record, pp. 79–​84); that it was practiced by the insurgents (Record, pp. 85–​
97); and that when a native was punished by the Americans for refusing to
assist them in their operations against the insurgents he was not subsequently
punished by the insurrectionary leaders for giving such assistance (Record,
pp. 85–​97). If this be admitted, the accused was attempting to justify is con-
duct, not as an act dictated by military necessity, but as a method of conduct-
ing operations.
When looked at from this point of view the defense falls completely, inas-
much as it is attempted to establish the principle that a belligerent who is at
war with a savage or semicivilized enemy may conduct his operations in viola-
tion of the rules of civilized war. This no modern State will admit for an instant;
nor was it the rule in the Philippine Islands. It is proper to observe that the
several general officers who have exercised chief command in the Philippine
Islands have, all of them, expressly forbidden practices like that of which
the accused is here charged. Their principal subordinates have given similar
instructions forbidding a resort to cruelty in the most positive terms. If Major
Glenn’s act was legitimate, and if the necessity for a resort to the water cure

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was so generally admitted, why were the general officers upon whose staff he
served not made aware of the necessity, and why were their instructions not
taken in the matter? And why, if it was such a potent agent in the restoration of
order, was the administration of the water cure not regulated in orders or made
the subject of official report?
The rules respecting the treatment of guerrillas contemplate the existence
of large armies which are annoyed in their operations by the presence of small
guerrilla bands—​that is, by the acts of small bodies of the enemy who are not
a part of his combatant forces and who conduct their operations in violation
of the rules of war. This was not the case in the Philippine Islands generally,
where there were no large armies operating against each other as organized
bodies. The troops were operating in detachments against isolated bands or
bodies of insurgents, all of which were acting as guerrillas and were conduct-
ing their operations in flagrant disregard of the rules of civilized war. The sit-
uation thus presented was difficult and to the last degree exasperating, but it
did not relieve the officers and men of the occupying forces of their obligation
to adhere to the rules of war in the efforts put forth by them with a view to
suppress the insurrection and restore public order.
….
The accused was found guilty upon both charge and specification, and the
following sentence was imposed:

To be suspended from command for the period of one month, and to

forfeit the sum of $50 for the same period. The court in thus lenient on
account of the circumstances as shown in evidence.
Although the accused was tried for but a single administration of the
water-​cure—​not for habitually resorting, to it in the conduct of opera-
tions against the insurrectionary forces—​the sentence imposed, in my
opinion, was inadequate to the offense established by the testimony of
the witnesses and the admission of the accused. The sympathy of the
court seems to have been with the accused throughout the trial; the feel-
ing of the members in that respect is also indicated by qualifying words
which are added to the sentence, and by the unanimous recommenda-
tion to clemency which is appended to the record.
I am of the opinion that the court upon reconsideration would adhere
to the sentence originally imposed, and it is therefore recommended that
the sentence lie confirmed and carried into effect.

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D Court-​Martial of First Lieutenant Preston Brown, Second U.S.

Infantry (1902)13
Charge.—​Murder, in violation of the fifty-​eighth article of war.
Specification.—​In that First Lieut. Preston Brown, Second Infantry, did
willfully, feloniously, and with malice aforethought murder and kill by shoot-
ing with a pistol an unarmed, unresisting, native Filipino, name unknown, a
prisoner of war in his charge, and as a result of said shooting the native did
then and there die.
This at a time of insurrection in the Philippine Islands, under the military
governor of the United States at or near Binangonan, Infanta Province, Luzon,
p.i., on or about December 22, 1900.
The trial resulted in a finding of guilt of the specification, except of the words
‘‘feloniously and with malice aforethought murder and,” and of the excepted
words not guilty, of the charge guilty, except the word “murder,” substituting
therefore(?) the word “manslaughter”; of the excepted word not guilty and of
the substituted word guilty.
It appears that a party of 6 enlisted men of F Company, Second Infantry,
started out from their station at Binangonan to buy chickens and eggs for
a Christmas dinner. While crossing the Agoos River, a mile from town, they
were fired upon from the opposite bank. The troops in town, Companies F
and G, hurried toward the sound of the firing. The current of the river, swollen
by recent rains, was running from 4 to 6 miles an hour, sweeping toward the
farther shore, where it had cut into the bank, upon which some bushes were
growing. When Lieutenant Brown reached the river he poured several volleys
into the opposite bank, receiving no lire in return, and then started across. One
of his men, Private Weidner, was carried downstream by the current, swept
close to the bushes on the farther bank, and drowned. A native of middle age,
clad only in a breech clout, was brought to Lieutenant Brown shortly after he
had crossed by a soldier, who found him crouching in the bushes past which
Weidner had been swept. Lieutenant Brown questioned this native as to the
whereabouts of the insurgents, speaking both in Spanish and Tagalo, but could
get no answer beyond “no sabe.” He knocked the native down, and very shortly
afterwards shot him in the back of the head as the man was moving away, kill-
ing him instantly. A large number of soldiers and one other officer, Lieutenant
McCook, were standing near the principals to the tragedy. The soldiers imme-
diately afterwards moved on, away from the river, in skirmish formation.

13 22 October 1902, supra note 7 at 48–​62.

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Twenty-​three eyewitnesses of the occurrence were sworn as witnesses, and

all agree as to the facts stated above. …
….
Lieutenant Brown, the accused, was sworn in his own behalf:

The native was brought up to me, and the men reported that he could have
saved Weidner if he had wanted to, and they also said that the black—​
using an opprobrious epithet—​had kicked Weidner into the river. That
was reported to me. I looked at the native, and the first thing I wanted was
a guide. I knew Weidner was drowned and that was the end of it; it was
a casualty. And my object was to get my men straightened out and find
the trail there, and I thought I'd make that native act as guide and show
me the line of retreat so I could cut them off. I asked him the question,
both in Spanish and Tagalo, and he answered in Tagalo something which
means “I don't know” or “No sabe.” The man was somewhat shorter than
I was, and standing in front of me, and when he answered me “No sabe”
I probably cursed him and said something to him, and hit him a blow that
way [indicating] and he went right square down.
I saw there wasn't any use trying to get anything out of him, and as he
got up, he was about two-​thirds of the way up, I just took him by the neck
that way [indicating] and shoved him behind me, and I either gave the
command “forward” or told them to line up; anyhow I gave some com-
mand, the same as “forward march,” and I stepped off. I had gotten pos-
sibly as far from here to the corner of that desk [indicating a distance
estimated by the court an 8 feet] and there was an outcry and a noise or
general commotion among the men, and I was standing this way [indi-
cating]. I turned my head that way quickly and I saw this native was slant-
ing at me about in that direction [indicating] and the bushes were over
there [indicating], and he was running what I would call “in the air”—​
that is, one foot in the air. That is the impression I got as I turned my head.
And I pulled my revolver, the double action, the man fell, and was shot
through the head.

….
Several officers testified that it was not customary to halt escaping prison-
ers, but to fire at them and kill them if possible. They slip away so quickly that
the orders when in the field have always been at the least effort to escape to
shoot and shoot quick.
At the time when the offense was committed which has been made the
subject of charges in this case a state of public war existed in the Philippine

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52  Chapter 2

Islands, and the command of which the accused was a member was engaged
in the actual prosecution of hostilities against the enemy. A skirmish was in
progress, and Lieutenant Brown, as the senior officer in that part of the field in
which his company was operating, was directing its movements in pursuance
of the orders of his commanding officer, and in conformity with the varying
circumstances of the engagement. In this view of the case it is apparent that
the culpability of the accused should have been determined not by the law of
the place, but by the rules and custom of war. It is the purpose of the laws of
war to regulate the conduct of a belligerent and of individuals in his service in
the operations undertaken by them against the enemy. Those laws which have
the sanction of all civilized nations contain provisions regulating the right to
kill individuals of the enemy’s army, the treatment of prisoners of war, and the
duty of protecting noncombatants and their property in the theater of mili-
tary operations. Offenses against them are triable by courts-​martial, in cases
over which those tribunals are given jurisdiction by law, and, in other cases,
by informal tribunals of the class known to the practice of the United States as
“military commissions” which derive their jurisdiction not from enactments of
Congress, but from the common law of war.
In the case under discussion the organization in which the accused was
exercising the command appropriate to his rank had encountered a force of
hostile insurgents, an engagement had ensued, the resistance of the enemy
had been overcome, and he had been forced to retreat. The immediate purpose
in attacking the enemy having been accomplished, the firing had ceased and
the accused was about to reform his command for further operations when
the deceased was brought into his presence as a prisoner of war, with a view to
have his status determined—​as friendly or hostile—​and to obtain such infor-
mation as he could give in respect to the numbers, position, and intentions of
the enemy.
It will thus be seen that a case to which the laws of war properly applied is
disclosed by the record of proceedings. Had the case been prepared for trial
by a military commission, the offense of the accused and the rights and status
of the deceased could have been stated in the charges in the form of acts in
violation of the laws of war. And the testimony adduced would have enabled
the commission to determine the criminal responsibilities of all parties to the
transaction in question. But this course was not pursued. The circumstances of
the killing were reported by Lieutenant Brown to his superior officer, Captain
Freemont, by an oral message, conveyed by an enlisted man.
The matter was not made the subject of a formal report in writing by
Lieutenant Brown, or the object of an official inquiry by his immediate com-
manding officer. Indeed, it was not until a considerable period of time had

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elapsed that it was brought to the attention of the department commander

under circumstances indicating that other motives than a regard for the public
interest and a furtherance of military discipline had operated in bringing the
incident to the notice of the proper authority. The matter was placed in the
hands of an inspector for investigation and report, and as a result charges and
specifications alleging a violation of the fifty-​eighth article of war were’ pre-
pared by the inspector, and a general court-​martial was ordered for their trial.
The fifty-​eighth article of war, under which the charge is brought, was
enacted during the war of the rebellion as section 30 of the act of March 3, 1863
[citation omitted], and was incorporated in the Articles of War by the revisers
of the Statute in 1874. ….
….
It is the opinion of this office, therefore, that while the case was properly
referable to a military commission as the usual and appropriate forum for the
conduct of the inquiry, the act of the accused, in taking the life of a noncom-
batant in occupied territory “in time of war, insurrection, or rebellion,” was
properly triable by a general court-​martial under a charge alleging murder in
violation of the fifty-​eighth article of war.
The fifty-​eighth article of war, after describing the offenses which are made
triable by court-​martial, contains the requirement that “the punishments for
such offenses shall never be less than those inflicted by the laws of the State,
Territory, or district in which they have been committed.” … The fifty-​eighth
article is therefore incomplete and requires to be aided or supplemented in
execution of the requirements of the local law. For this reason it becomes nec-
essary to ascertain from the criminal law of the place what punishment is pre-
scribed by law upon conviction of the several offenses therein named.
[The decision proceeds to discuss the Penal Code in force in the Philippine
Islands, specifically, “Crimes Against Persons”, e.g., assassination and homicide.]
As the court has acted without jurisdiction in imposing a less severe sen-
tence than is required to be imposed by the fifty-​eighth article of war, its act
is without authority of law, and it is recommended that the proceedings be
returned for revision.
….
Regarding what has been said of Lieutenant Brown’s acts as a violation of
the laws of war, and, as such, triable by a military commission, it is proper at
this point to discuss his conduct from the standpoint of international law.
It is not apparent from the record, nor is it necessary to inquire, whether
the captured Filipino was a member of the insurgent forces or not; the fact
that he was unarmed and nearly naked gives occasion for the belief that he
was not actively engaged in the insurrection. But this matters little, as the

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circumstances attending his apprehension were such as to justify his detention

either as a prisoner of war or as an offender against the laws of war.
….
If the captured Filipino was a member of the insurgent forces, he became
entitled to protection as a prisoner of war immediately upon his capture.
If he contributed to the death, by drowning, of the soldier, Weidner, by
pushing him back into the water, he was guilty of an offense against the laws of
war, for which he was triable.
….
In discussing Lieutenant Brown’s responsibility under the laws of war,
the circumstances attending his act must be carefully considered. It has
been seen that an engagement with the enemy was in progress. The resis-
tance of the enemy had been overcome for the moment; the accused bad
crossed a portion of his command over a swollen stream, and was engaged
in re-​forming his men preparatory to further advance, when the Filipino
was brought into his presence; that his excitement was great, and that his
acts were not under control is indicated by his treatment of the prisoner.
He first attempted to obtain information, and failing in this, he gave some
instructions looking toward his detention, and then turned in the direc-
tion of the enemy. Just as he was about to advance, there was an outcry and
commotion among the men who had crossed the stream with him, which
caused him to turn in the direction of the prisoner, who appeared to be in
the act of escaping. Laboring under an excitement so intense apparently as
to preclude an exercise of the reasoning faculty, he fired and the prisoner fell
dead. Lieutenant Brown displayed no special enmity toward the captured
Filipino, and seems to have cherished none. The situation was a critical one
for an officer of his age and experience. He had already delayed his advance
somewhat, and he was on the enemy’s side of a swollen stream with a small
detachment of men, and out of supporting distance of the main body of the
command.
It is because of the existence of conditions such as have been described
that the ordinary civil courts are not given jurisdiction over acts commit-
ted in time of war in the presence of the enemy. This is indicated in the old
form of indictment at common law, which alleges the homicide to have been
committed “in the peace of God and the commonwealth,” that system of
jurisprudence not lending itself readily to the determination of questions of
criminal responsibility arising in the course of operating against the public
enemy. The court-​martial applied this principle as far as it was able to do so
by finding the accused guilty of manslaughter instead of murder, as alleged
in the charges.

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The rule of international law which applies in the case of an escaping pris-
oner is correctly stated in Dr. Lieber’s instructions:

A prisoner of war who escapes may be shot or otherwise killed in his

flight, but neither death nor any other punishment shall be inflicted
upon him simply for his attempt to escape, which the law of war does
not consider a crime. Stricter means of security shall be used after an
unsuccessful attempt at escape. (Par.77,Instructions for the Government
of Armies of the United States in the Field.)

Reduced to its lowest terms, I can find in the testimony no conditions of emer-
gency which would have justified a commissioned officer of the Army in beat-
ing and kicking an unarmed prisoner of war whose resistance had been over-
come. As to the subsequent shooting of the prisoner, after the advance had
begun, there is some conflict of testimony. It is fairly well established, however,
that after the advance was resumed an outcry was made that the prisoner was
attempting to escape. Upon hearing this Lieutenant Brown turned quickly and,
seeing the prisoner moving toward the bushes, fired without aiming, killing
him instantly. If a prisoner of war attempts to escape, the laws of war justify the
use of such force as may be necessary to prevent it.
In the condition of excitement in which the accused was at the moment,
it is impossible to make nice distinctions as to the amount of force used, or
as to the method of its employment. There is nothing which indicates malice
or a willful desire to kill. Had a larger force been employed, and had the affair
attained the dimensions of an engagement, the case would not have occurred,
as the prisoners would have been sent to the rear under proper escort.
While the circumstances which attended the taking of human life in this
case are such as to diminish materially the criminal responsibility of the
accused, he cannot, in my opinion, be entirely absolved from blame, as the
requirements of the instructions for the government of armies in the field are
specific and intended to regulate the conduct of all persons, whatever their
rank and station in the military service. The Government has a right to expect
from its commissioned officers such an exercise of self-​control in action as will
insure the proper employment of its forces against the enemy and secure a
reasonable enforcement of the laws and usages of war during the actual pen-
dency of hostilities. It is therefore recommended that so much of the sentence
as imposes confinement in the penitentiary be disapproved as illegal and inop-
erative, but that the sentence of dismissal be approved and commuted to a
reduction of thirty files in lineal rank on the list of first lieutenants of infantry
and to a forfeiture of one-​half of his monthly pay for a period of nine months.

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E Investigation of the Death of Father Augustine de la Peña by

“Water Cure”14
Reports of investigations regarding the death of Father Augustine de la Pena, and
opinion of the Attorney-​General as to trial of Cornelius M. Brownell therefore.
….
The facts in the case, which are fully set forth in the accompanying testi-
mony and reports, are as follows: The Twenty-​sixth Volunteer Infantry formed
a part of the force which was assigned to the military occupation of the
island of Panay. Company D of that regiment, commanded by Capt. Cornelius
M. Brownell, after taking part in the operations in the field which were car-
ried on during the winter of 1899 and 1900, was assigned to a small subdis-
trict in eastern Panay, of which the town of Banate on the seacoast, about 25
miles to the north of Iloilo, was the administrative center. The garrison of this
subdistrict of which Captain Brownell was the commander, consisted of one
company, “D,” of the Twenty-​sixth Volunteer Infantry, and was augmented from
time to time by detachments from the Thirty-​eighth U. S. Volunteers and the
Eighteenth Regiment of Regular Infantry.
About the middle of October, 1900, Captain Brownell, upon his return from
an expedition into the district of Sava, found that the inhabitants of the town
of Banate had become disaffected during his absence and that there was some
evidence that acts of positive disloyalty were in contemplation. After inquiry,
it was ascertained that a bolo company was in process of organization with a
view to an attack upon the garrison of the place. The natives implicated were
arrested, and the local presidente, after having broken his parole and escaped,
was recaptured, tried by military commission, and sentenced to ten years’
imprisonment in the Bilibid Prison in Manila. It was also discovered that the
president had been warned by a priest named Augustine de la Pena, the parish
priest at Molo, who was a relative of Quintin Salas, the chief insurgent leader
in eastern Panay.
Upon inquiry at the department headquarters at Iloilo, Captain Brownell
ascertained that Father Augustine de la Pena, while professing sympathy
with and loyalty to the United States, was in fact a leader in the insurrec-
tionary party and was acting as treasurer of funds raised in the island with
a view to the prosecution of the insurrection against the authority of the
United States. So early as February, 1900, the conduct of Father Augustine
had become so suspicious that application for his arrest had been made to
General Hughes by Lieutenant-​Colonel Dickman and Major Henry, both of

14 17 November 1902, supra note 7 at 78–​92.

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the Twenty-​sixth Volunteer Infantry, but the arrest was not made, as evidence
sufficient to incriminate him was not then obtainable. Lieut. Garrison Ball,
Artillery Corps, a former officer of the Twenty-​sixth Volunteer Infantry, was
informed by the parish priest of Janiuay that “Padre Augustine levied taxes
for the insurgents and had relatives in the field against our forces;” he also
states, upon the authority of a sergeant of native scouts, “ that at times Father
Augustine took the field in command of forces operating against us.” [citation
omitted]
Some months later, about midsummer of 1900, information was received
that Father Augustine was about to change his residence from Dumangas to
Janiuay, which would have been, in General Hughes’s opinion, “an ideal posi-
tion for the purpose of obstructing our work.” [citation omitted] With a view
to meet this movement, and at the same time to advance the interests of the
military occupation, it was determined to occupy both Janiuay and Maasin,
whereupon Father Augustine established himself at Molo, which was the
seat of the insurgent junta, and the commanding officers at Leon and Maasin
were instructed to observe the Father closely, as he was an active enemy. Late
in November, 1900, in pursuance of General Hughes’s instructions, Father
Augustine was arrested by the commanding officer at Maasin, Captain Butts,
of the Eighteenth Infantry, while attempting to pass the line of posts, and on
November 23 was placed on board the United States gunboat Paragua at Iloilo
for transportation to Banate, where he landed on the following morning and
was transferred to Captain Brownell for safe-​keeping. When captured, Father
Augustine was dressed in the khaki uniform of a sergeant of the regular artil-
lery. His vestments, which were found in his possession at the time of his cap-
ture, were also delivered to Captain Brownell at Banate. In view of his impor-
tance, as he was the acting bishop of the diocese of Jaro, General Hughes tried,
but without success, to find a suitable place of confine ment for the prisoner in
Iloilo, but as it had been represented to him that he was confined in a church
at Banate, where he could be com fortably accommodated, h« decided to leave
him for the time in Captain Brownell’s custody.
Immediately after he arrived at Banate, as a prisoner, and during the tem-
porary absence of the post commander, Father Augustine addressed the fol-
lowing communication to General Hughes, in which he admitted having taken
part in the insurrectionary movement: ….
….
Captain Brownell returned to Banate on the following day, and a few days,
later summoned Father Augustine into his presence and told him “plainly that
he would be compelled to deliver to me [Captain Brownell] the funds in his
possession belonging to the insurgent forces, and papers known to be in his

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possession” implicating others who had taken the oath of allegiance to the
United States.” (Captain Brownell’s statement, Appendix H, p. 4.) This Father
Augustine refused to do, denying that he was a sympathizer with the insur-
gent forces, or that he had had dealings or communications with them of any
sort, or that he knew anything about their cause. Captain Brownell says in his
statement that he “held daily conversations with him for a period of three or
four days, endeavoring in every possible way to influence him to surrender
the papers and money in his possession without compulsion,” and “promising
him fair treatment on the part of the Government.” [citation omitted] Father
Augustine concluded by denying “ everything in the statement he had previ-
ously made, said that it was written in English, and he was told to sign it, and he
thought it was a letter to be used to inform his friends where he was.” [citation
omitted]
A limited time was then given Father Augustine in which to decide whether
to surrender the money and papers which were believed to be in his posses-
sion. The time having expired, he was told that he would be blindfolded and
subjected to the administration of the “water cure” until he acceded to Captain
Brownell’s demand. The priest having again denied all knowledge of the mat-
ters above mentioned, the water cure was administered by a detachment of
enlisted men belonging to Company D, Twenty-​sixth Volunteer Infantry. As
a consequence of its administration Father Augustine admitted that he had
some money in his possession, but that it belonged to the church. He was
then informed that he would be required to deliver the papers and moneys
to Captain Brownell immediately [citation omitted] and as he refused to do
this the water cure was again administered; as a consequence of which the
prisoner consented to sign the order upon the house of Hoskyn & Co. without
further resort to force. After having agreed to do this he subsequently declined;
whereupon, seeing that preparations to again administer the water cure were
being made, he signed the order for the delivery of the funds to the military
authorities.
….
Captain Brownell then undertook to obtain from the prisoner some infor-
mation as to the whereabouts of Col. Quintin Salas, the chief insurgent leader
in eastern Panay, promising to shield him should he tell the truth.
Father Augustine, at this time, was in a dejected mood, despondent, thor-
oughly discouraged. He told me that he had better be dead, and wished he
might die. He had nothing further to live for, and expected if the American
Government did not hang him the insurgent forces would, and that he real-
ized he had been a traitor to both sides, and a traitor to his church, and upon
exposure of his traitorous conduct while acting at the head of the church in

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the island he would certainly be deposed and disgraced in the church, and
he repeatedly called on the Virgin Mary to take his life. I gave him until a cer-
tain hour to consider whether he would disclose this hiding place or not, and
explained to him how I knew he was in possession of this information. At the
expiration of this time he declined to disclose Salas’s whereabouts, and again,
more emphatically, said he had better be dead than living any way, and hoped
he would die before morning. [citation omitted]
The prisoner having persisted in his refusal to disclose the information of
which he was believed to be possessed, the water cure was again administered.
During such administration the prisoner died. Attempts were made to resusci-
tate him, but without avail, as apoplexy, or heart failure, not asphyxiation, was
the cause of his death. Captain Brownell, elsewhere in his statement, speaks of
the prisoner, after the first administration of the water cure, as being “in a very
excited and desperate mental condition;” he also describes him as “a man of
low vitality, huge and fat,” and this description of his personal appearance and
physical condition is corroborated by the testimony of the other witnesses.
The circumstances attending the administration of the water cure are fully set
forth in Captain Brownell’s statement, ….
….
It thus appears that information respecting the administration of the “water
cure” was scrupulously withheld from Captain Brownell’s military superiors,
the incident being reported in terms calculated to convey the impression that
the death of the victim was an accidental and unavoidable circumstance, and
that no act of his had contributed to bring it about.
….
General Hughes’s attention was next drawn to the incident by the appear-
ance of an article which was published in the Washington Post on April 24,
1902. Immediately upon his attention being drawn to it, at his headquarters in
San Francisco, that officer prepared a report [citation omitted], setting forth
such facts in the case as were within his knowledge. This report was forwarded
to the Adjutant-​General of the Army on April 30; it was submitted to the
Secretary of War on May 10 following, and was forwarded by him on the same
day to the Hon. Henry Cabot Lodge, the chairman of the Senate committee of
investigation
….
It thus appears that Captain Brownell, having been charged with the cus-
tody of an important prisoner of war, did. of his own motion and without the
knowledge or sanction of his military superiors, administer a form of torture
known as the ‘ “water cure” to a prisoner intrusted to him for safe-​keeping,
and that as a result of such administration the prisoner died; that he obtained

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incriminating evidence tending to show that the deceased had taken an

important part in the insurrectionary movement against the authority of the
United States in the island of Panay is conceded; but that evidence could have
been obtained by a simple search of the person and garments of the deceased,
and the. administration of torture added nothing to the amount or importance
of the evidence, obtained.
The rule of international law which places limitations upon the kind and
amount of force which may be used in the prosecution of military operations
is set forth in paragraph 16 of General Orders, No. 100, Adjutant-​General’s
Office, of 1863, which contains the requirement that—​
Military necessity does not admit of cruelty—​that is, the infliction of suf-
fering for the sake of suffering or for revenge, nor of maiming or wounding
except in fight, nor of torture to extort confessions. It does not admit of the use
of poison in any way, nor of the wanton devastation of a district. It admits of
deception, but disclaims acts of perfidy; and in general military necessity does
not include any act of hostility which makes the return to peace unnecessarily
difficult.
….
Having regard to the circumstances attending Captain Brownell’s act in
extorting information from the native priest at Banate, I find it difficult to
escape the conclusion that it was not justified by military necessity; and that
there did not exist, at the time of its commission, a condition of emergency
so instant, imperious, and overwhelming in its character as to justify Captain
Brownell in the specific violation of the requirements of General Orders, No.
100, which has been made the subject of this investigation.
In the case under examination Captain Brownell had no duties to perform
in connection with Father Augustine de la Pena save to safely hold him as a
prisoner of war. Captain Brownell had no orders to execute, no operations to
carry on, which he could not safely undertake with the force under his imme-
diate command, no duty to perform save to maintain order in the vicinity of
the town of which his company constituted the garrison.
Having an important individual of the enemy in his power, he yielded to a
prurient curiosity and, in an attempt to extort information, caused the death of
the prisoner upon whose person the torture had been inflicted. For the offense
which is shown to have been committed it is my opinion that Captain Brownell
should be brought to trial.
A resort to torture in order to obtain either confessions or information from
a prisoner of war is, in view of what has been said, a violation of the laws of war
and, as such, is triable by military commission. …
….

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The military commission is a court having jurisdiction to try offenses against

the laws of war committed in time of war in occupied territory of the enemy.
Its authority to hear and decide cases is derived, not from statutes, but from
the law of nations, and its jurisdiction ceases with the termination of the war,
or with the restoration of the civil authority to its normal functions. The ques-
tion as to whether a state of war existed in the island of Panay in December,
1900, is one of fact, and to be determined by the political departments of the
Government. The President’s proclamation of July 4, 1902, which declares a
state of internal peace to exist in the Philippine Islands, is decisive in that
regard. Since that date, therefore, no general officer exercising military com-
mand in those islands has been empowered to convene a military commission.
….
It has been seen that the military commission was the proper forum for
the trial, in time of war, of offenses against the laws of war. The terms of the
fifty-​eighth article are so sweeping, however, as to include offenses like that
committed by Captain Brownell, but the grant of jurisdiction is, by the express
terms of the article, restricted to a time of war. For that reason a prosecution
cannot be instituted at this time.
The sixty-​second article of war confers an extensive though somewhat
indefinite jurisdiction upon courts-​martial to try “All crimes not capital, and
all disorders and neglects, which officers and soldiers may be guilty of, to the
prejudice of good order and military discipline.” Its operation is expressly
restricted to “crimes not capital, as to offenses, and, as to persons, to “officers
and soldiers”—​that is, to individuals who belong to and constitute a part of
the military establishment. A question therefore arises as to whether Captain
Brownell, being no longer in the military service, is now amenable to military
jurisdiction. …
….
It is proper to observe that the rule of international law, which was recog-
nized by the Supreme Court and applied in the case of Coleman v. Tennessee,
above cited, was announced in appropriate military orders by the general com-
manding the forces charged with the military occupation of the Philippine
Islands, ….
….
The exclusive jurisdiction thus created in favor of military tribunals ter-
minated on July 4, 1902, in pursuance of the President’s proclamation of that
date, terminating such occupation and announcing the restoration of the civil
authorities to their normal functions in connection with the maintenance of
public order in the Philippine Islands.

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It would thus appear that the court of first instance for the proper district
in the island of Panay would have jurisdiction of the offense of murder or
manslaughter, when committed by a person not in the military service of the
United States; but that such court of first instance would not have jurisdiction
to try either of the offenses above named when committed by an officer or
enlisted man of the Army in time of war, and in territory in the military occu-
pation of the United States.
If it be conceded, for the purposes of argument, that such jurisdiction over
persons in the military establishment did belong to the court of first instance
in the, island of Panay, a question would arise as to whether, the offender hav-
ing returned to the United States, the offense is extraditable ….
….
It would thus appear that Captain Brownell, being no longer in the mili-
tary service, is not amenable to the jurisdiction of a general court-​martial, as
a state of war no longer exists in the Philippine Islands he is not now sub-
ject to trial by a military commission; for the same reason, and because of the
exclusive jurisdiction over the offenses named in the fifty-​eighth article of war,
which is vested in general courts-​martial, he is not triable by the proper court
of first instance in the island of Panay, which would have jurisdiction of the
case had the offense been committed by a person not belonging to the military
establishment.
In view of the importance of the case and of the circumstances under which
the offense was committed, it is not believed to be proper that the question of
Captain Brownell’s criminal accountability should be finally determined by the
War Department, and it is therefore recommended that this report be referred
to the Attorney-​General for an opinion as to whether, under the circumstances
therein stated, Captain Brownell can now be brought to trial.

ii International Arbitration Arising from the Armed Conflict

A Several British Subjects (Great Britain) v. United States

(Iloilo Claims) (1925)15
These are claims for destruction of property of British subjects on the occa-
sion of the occupation of Iloilo by the forces of the United States during the
Philippine Insurrection.

15 19 November 1925 [emphases added]. 6 Rep. Int’l. Arb. Awards 158–​160 (1955).

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The Armed Conflict with the United States 63

On August 12. 1898, a “Protocol of Agreement” had been entered into between
the United States and Spain whereby it was provided that the United States
should “occupy and hold the city, bay, and harbour of Manila, pending the con-
clusion of a treaty which shall determine the control, disposition, and govern-
ment of the Philippines.” On December 10, 1898, a treaty was signed whereby,
in article iii, Spain ceded the Philippines to the United States. Article v of the
treaty provided that on exchange of ratifications Spain should evacuate the
islands. Exchange of ratifications did not take place until April 11 following.
In the meantime, the Spanish commander at Iloilo, on the island of Panay,
the second place of importance in the archipelago, being pressed by Filipino
insurgents, desired to evacuate, and seems to have communicated this desire
to General Otis, the American commander at Manila. The latter stated that he
was without authority to act on the suggestion. On December 14, however, the
businessmen of Iloilo having requested General Otis to occupy the place in
order to preserve peace and property, the general cabled to Washington ask-
ing permission to do so. No answer was sent till December 21. In consequence
an expeditionary force could not be dispatched until December 26 and it did
not reach Iloilo until December 28. Although General Otis had endeavoured to
get word of the expedition to the Spanish commander, he had not succeeded.
The place had been evacuated on December 24, and was promptly occupied
by a force of Filipino insurgents. General Miller, who commanded the expe-
ditionary force, acting on a petition from the business men of Iloilo, which
he communicated to General Otis, and on instructions from Manila, and ulti-
mately from Washington, remained in the harbour without landing his force
or attempting to take possession until February 11. On that date, pursuant to
orders dated February 8, which reached him on February 10, he landed, drove
out the insurgents, and occupied the town. From the beginning the insurgents
had threatened to burn the town if forcibly driven out, and on February 11
they succeeded in carrying out this threat. The property of the claimants was
destroyed by. or lost in consequence of this fire.
It is contended by Great Britain that there was culpable neglect on the part
of the authorities of the United States in three respects: (1) in the delay of a
week in answering General Otis’s request, so that the Spanish commander had
evacuated Iloilo and the insurgents had taken control before the expedition
under General Miller arrived; (2) in delaying the occupation of Iloilo after
General Miller’s arrival, so that the insurgents were able to make and carry out
preparations for burning the town; (3) in the manner of landing and occupa-
tion when finally made.
As to the first contention, we are of opinion that there was no duty upon the
United States under the terms of the Protocol, or of the then unratified treaty,

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or otherwise, to assume control at Iloilo. De jure there was no sovereignty over

the islands until the treaty was ratified. Nor was any de facto control over Iloilo
assumed until the taking up of hostilities against the United States on the part
of the so-​called Filipino Republic required it on February 11, 1899. The sending of
General Miller’s force, at the request of the business men of the place, was an
intervention to preserve peace and property. As between the United States and
the claimants or their government, it was a matter of discretion whether or not
to do this, and no fault can be imputed because of delay in undertaking such
an intervention.
As to the second contention, it appears that the delay was, at least, largely
due to request of the business men who had originally sought intervention
(among them six of the present claimants) who feared the town would be
burned and their property destroyed if General Miller attempted to land and
to take forcible possession. Even if it is assumed that there was any duty toward
the claimants to act promptly, under all the circumstances we can not say that
the delay was culpable.
As to the third contention, it appears that the Filipino insurgents, who burned
Iloilo, were acting under orders from and professed allegiance to the so-​called
Filipino Republic, which, on February 4 preceding, had declared war against the
United States and had attacked the American forces at Manila, thus bringing
on a conflict which lasted over three years. There was no wanton or intentional
destruction of property by the vessels or troops of the United States. Indeed,
there is evidence that the troops exerted themselves vigorously to put out the
fires and to stop looting. The most that is claimed is that, if the operations of
landing and taking the town had been carried out in a different way, the burn-
ing by the insurgents might have been prevented. But the circumstances were
difficult and the general situation was trying. The operations were in charge of
experienced officers and we do not feel competent to criticize their judgment
as to the conduct of military operations. Considering all the circumstances, we
do not think that any culpable disregard of the interests of the claimants has
been shown.
We decide that these claims must be rejected.

B D. Earnshaw and Others (Great Britain) v. United States

(Zafiro Case) (1925)16
These are claims for property looted or destroyed by the crew of the Zafiro,
on May 4, 1898, while the ship was moored alongside the wharf of the Manila

16 30 November 1925 [emphases added]. 6 Rep. Int’l. Arb. Awards 160–​165 (1955).

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Slipway Company at Cavite, engaged in coaling. The claimants were employees

of the company and lived on the premises in houses belonging to the com-
pany. During the naval battle of May 1, 1898, in Manila Bay, as the wharf and
premises were in the line of fire and shells were exploding about the houses,
the claimants and their families went away for safety, leaving the premises in
charge of Filipino watchmen and Chinese employees of the company. On May
4 the Zafiro was ordered to go to the Spanish coal pile at Cavite to coal, and
in order to do so moored alongside the company’s wharf. The evidence as to
what followed is in conflict and there is much dispute as to the facts. We do not
doubt that the affidavits of the watchmen and of the Chinese employees are at
least somewhat exaggerated. But it is clear enough that the Chinese crew of the
Zafiro took a substantial part in the looting of the houses of the claimants and
destruction of their property, which was undoubtedly complete and thorough.
Hence it becomes necessary to consider whether and how far the United States
is liable for the actions of the crew.
It appears that the Nanshan and Zafiro, two British merchant vessels, were
bought by Admiral Dewey at Hong Kong, under authority of the Secretary of
the Navy, in April, 1898. They were not commissioned, but were registered as
American vessels, and the original crews (British officers and Chinese sailors)
were shipped in the American merchant service. The reason for so doing is
set forth in Admiral Dewey’s autobiography as follows: “We registered them as
American merchant steamers, and by clearing them for Guam, then almost a
mythical country, we had a free hand in sending them to English, Japanese or
Chinese ports to get any supplies we might need.” In other words, it was not
intended that they should trade and they did not trade. They were used as sup-
ply ships and colliers; and the purpose of registering them as merchant steam-
ers was to enable them to resort to neutral ports to obtain supplies and coal,
not for general purposes of the United States, but for the specific purposes of
Admiral Dewey’s naval operations. An ensign and four men were placed on
each and Admiral Dewey and Admiral Crowninshield each speak of the naval
officers as being “in command.” Admiral Crowninshield says: “The naval offi-
cer exercised control over all the movements of the ship and gave all orders
concerning her. The merchant captain was merely his executive officer, being
familiar with the crew and with the ship.” Ensign Pearson, now Commander
Pearson, who was on the Zafiro says: “My instructions were not to interfere
particularly with the details of the ship’s routine, but to receive the Admiral’s
orders for the ship and see them carried out, and to assist as much as pos-
sible and consistent with the general duty of the ship. …. The handling and
management of the Chinese crew was left to the ship’s officers, who had been

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with the crew in the merchant service and better understood their ways and
peculiarities.”
….
From all the evidence we are of opinion that the Zafiro was a supply ship,
acting in Manila Bay as a part of Admiral Dewey’s force, and under his com-
mand through the naval officer on board for that purpose and the merchant
officers in charge of the crew.
We have next to inquire whether at the time of the looting in question the
Chinese crew were under discipline and officered so as to make the United
States responsible, and to consider how far the United States would be charge-
able for want of supervision by those who had or should have had the crew in
charge under the circumstances.
It is well settled that we must distinguish between soldiers or sailors under
the command of officers, on the one hand, and, on the other hand, bodies of
straggling and marauding soldiers not under the command of an officer, or
marauding sailors not under command or control of officers.
….
In the case before us, we think the officers were not actually present at the
houses when the looting was done. After members of the crew brought some
of the property upon the vessel, and one of the officers found where it came
from, he went to the houses and took away some articles in order to preserve
them for the owners. This is evidently what the Chinese witnesses have in
mind when they charge the officers with looting; for one of the officers tells
us that when he found the Chinese so interpreted his good offices, he desisted
for the sake of good order. After the matter was drawn to the attention of
the naval officers, the vessel was searched and the articles found on board
were returned to the claimants. But the damage had been done. Moreover,
Captain Whitton’s statement that he “stopped anything he saw coming on
board” gives the impression that he did not stop with sufficient promptitude
the taking of things on land before they could come on board, after he found
that plundering was going on. Without regard to this point, however, we feel
that there was no effective control of the Chinese crew at the time when the
real damage took place. When the Zafiro tied up alongside the company’s
wharf, where the houses were, the naval officer and the merchant captain
went off to look at the Spanish batteries, leaving the crew in charge of the
first mate. The latter gave half of the crew leave to go ashore. Captain Whitton
says significantly: “You know what Chinese are, especially these times.” To let
this crew go ashore where these houses were, with no one in charge of them,
at a time when plunder and pillage were certain—​and plunder and pillage by

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the Filipinos had been observed by all the officers—​seems to us to have been
highly culpable.
It was said in argument that a government is not responsible for what its
sailors do when on shore leave. But we cannot agree that letting this Chinese
crew go ashore uncontrolled at the time and place in question was like allow-
ing shore leave to sailors in a policed port where social order is maintained by
the ordinary agencies of government. Here the Spaniards had evacuated Cavité,
and no one was in control except as the Navy controlled its own men. The nature
of the crew, the absence of a régime of civil or military control ashore, and the
situation of the neutral property, were circumstances calling for diligence on
the part of those in charge of the Chinese crew to see to it that they were under
control when they went ashore in a body….

C Luzon Sugar Refining Company, Limited (Great Britain) v. United

States (1925)17
This is a claim for injury to the plant of the claimant during the Philippine
insurrection. It appears that the insurgents entrenched about fifty yards on each
side of the pumping station of the claimant and that during the operation of driv-
ing them out the plant was damaged by shells. It is clear from the report of General
Otis that the damage was an incident of the military operations whereby the
insurgents were driven from their capital. The foreign residents, whose property
unhappily chanced to stand in the field of those operations, have no ground of
complaint against the United States which had no choice but to conduct them
where the enemy was to be found. No complaint is made that the troops were
out of hand or did anything beyond what the operations necessarily involved.
Hence this claim must be rejected and we so decide.

D J. Parsons (Great Britain) v. United States (1925)18

This is a claim for the value of a stock of liquors destroyed by order of the
Provost Marshal General, under authority of the Military Governor General, at
Manila, during the Philippine insurrection. We are satisfied that the destruction
was a matter of police entirely within the powers of the military government and
quite justified by the circumstances. Hence, we hold that this claim must be
rejected, and it is so decided.

17 30 November 1925 [emphasis added]. 6 Rep. Int’l. Arb. Awards 165 (1955).
18 30 November 1925 [emphasis added]. 6 Rep. Int’l. Arb. Awards 165 (1955).

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iii Cases Decided by Philippine Courts

A U.S. v. Pagaduan (1917)19

This case is one growing out of events which transpired in 1899 during the exis-
tence of the Filipino Revolutionary Government. …
In May, 1899, the war between the American and Revolutionary forces in
the Philippines was on. The Filipino Government, from the standpoint of
International Law, was of the class known as “de facto government.” … The
capital of the Revolutionary Government was at Tarlac. General Aguinaldo was
the Commanding General and President of the Revolutionary Government.
General Luna was in command of the Revolutionary forces in the north.
Colonel Pablo Tecson, who previously had been Secretary and Member of the
Revolutionary Congress and Secretary of the Mixed Civil and Military com-
mission, in May, 1899, was Auditor to the Commanding General and President.
General Pablo Padilla was military governor of Nueva Ecija … The northern
provinces, including the Province of Nueva Ecija, were under the control of the
Revolutionary Government. Local administration adapted from the system in
force under Spain was in operation. …
General Luna had earlier issued an order to the authorities of the
Revolutionary Government under his jurisdiction to hunt down and kill all
spies. The defendant Pagaduan testified that this order was in substance as
follows: “There having come to the notice of the Office of the Secretary of War
that with frequency some Chinamen serve as spies for the American forces, it
is hereby decreed to all civil of military officials that upon the approach of the
American forces to their town or towns, they immediately order the arrest of
the Chinese residents in the respective towns, and should they arouse suspi-
cion that they are spies, or be found to be under such circumstances as to prej-
udice our Government, that they be ordered executed.” This order was received
in Zaragoza. Certain Chinese in the municipality had been suspected of being
spies of the Americans. Acting, therefore, pursuant to the circular of General
Luna and under the direct order of the municipal president, on one of the days
of May, 1899, the houses of these Chinese were sacked. The Chinese, nine in
number, were conducted to the municipal buildings. A little later, the Chinese
were taken to the barrio of Balucot and killed. The present defendants with
others participated directly in execution of these deeds.
These occurrences, coming to the notice of General Aguinaldo, Colonel
Tecson was ordered to make an investigation. No one was in a better position

19 g.r. L-​12616, 2 November 1917. [emphases added].

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to know what happened at this investigation than Colonel Tecson, the man
who conducted it. We are shown no reason which would authorize us to con-
clude, as did the trial court that the vital part of Colonel Tecson’s testimony
“ is unworthy of belief.” Moreover, [several credible witnesses] corroborated
Colonel Tecson’s remembrance of this investigation. … Colonel Tecson says
that he found it to be true that the dead Chinese had been spies, who had
transmitted information to the Americans. As result of the investigation,
General Aguinaldo ordered the accused to be liberated.
Nine years passed. In October, 1908, the justice of the peace of Zaragoza
conducted an investigation of charges against Pagaduan and Masibay. Nothing
came of the investigation. Eight years more passed. And then, the present pros-
ecution was instituted.
[The accused were convicted of murder. On appeal, the accused invoked
their right against double jeopardy, having been tried by the Philippine
Revolutionary Government. The Court did not address that issue and reversed
the conviction solely on the question of whether the accused enjoyed the ben-
efit of U.S. President Theodore Roosevelt’s amnesty for rebels.]
The Amnesty Proclamation has been held to cover three classes of
offenses: (1) Purely political crimes, compendiously described in the proclama-
tion as “treason and sedition;” (2) common crimes “political in their character”,
that is, committed pursuant to orders from superior authority; and (3) crimes
which are shown to have had their origin in the two classes of “internal politi-
cal feuds or dissensions” named, without reference to whether they are in their
nature political or common crimes, or common crimes of a political charac-
ter, and without reference to whether they were committed under orders of
a superior authority or not. … How do our facts plumb with these essential
requisites of the Amnesty Proclamation? All of the accused were officials or
employees of the Revolutionary Government. The defendants were taking part
in civil a capacity against the United States in the insurrection mentioned in
the Amnesty Proclamation. Murder and robbery are the ordinary appellations
of the crimes they committed. Such are abhorrent crimes high in the scale
of infamy. The State punishes them with long imprisonment or death. Yet, in
times of war, such occurrences are not unexpected. The bloody tragedies of
the French Revolution and of the American Civil War, and, even more recently,
the events of the Russian war of liberation, convey to us a message of tolera-
tion and commiseration. So likewise in the Philippines, the common crimes of
murder and robbery could be, and were, committed during the Revolution, and
apparently were committed to further the interests of the Revolution. The kill-
ing of persons who were believed to be American spies has been held, in many
cases, to be crimes falling within the scope of the Amnesty Proclamation. Even

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where the officer not only kills suspected persons but robs them of their prop-
erty, the robbery has been regarded as in the nature of a reprisal and so to be
pardoned with the murder. [citation omitted] And finally, herein, it is not to be
forgotten that the alleged crimes were committed by officers of the Revolutionary
Government in pursuance of orders issued by their superior military leaders.
The defendants and appellants are entitled to the benefits of the Amnesty
Proclamation. …

B U.S. v. Querijero (1906)20

[Two men were convicted for the murder of two victims and the taking of their
property.]
… The defendants, testifying for themselves, stated that in the month of
May or June they were soldiers of Teodorico Novicio, a chief of the Katipunan;
that they were brought before him by his lieutenant and ordered to find Lucio
Quezon and Pedro Quezon and to kill them because they were persons who
did injury to the people. They were found, as testified to by Teodorico Novicio,
and repeated by the sergeant in immediate command of the attacking party,
Lucio Quezon and Pedro Quezon were killed.
The appellant Cristobal de los Reyes testified that later they surrendered
to the American military officer stationed in that province after the amnesty
was promulgated and he liberated them. On cross-​examination he stated that
the town of Baler was in revolt during the revolution of 1897; that there was
another uprising in 1898; that he was a soldier of Novicio during the first upris-
ing, and left Biac-​na-​Bato after the treaty there made between Aguinaldo and
the Spanish Government.
He stated that Pedro and Lucio Quezon belonged to the party which advo-
cated that the Philippines should remain under the Spanish sovereignty, and
that Lucio, the father, had joined the soldiers of Novicio, but afterwards had
deserted and withdrawn in the pueblo.
….
The only evidence to contradict this testimony is the statement made by the
witness for the Government, Manuel Quezon, a son of Lucio, who testified that
the second uprising in Baler did not take place until the month of July, 1898,
but it appeared from his testimony that he was in Manila during the siege at
the time and did not return to Baler until the end of 1898. He also testified that
he had heard that Teodorico Novicio, in April, 1899, had received an appoint-
ment as captain of revolutionary forces.

20 g.r. No. 2626, 13 July 1906.

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The Armed Conflict with the United States 71

We think the evidence is sufficient to show that at the time the crime was
committed the appellants were soldiers in the insurrection against Spain and
that it was committed by order of a superior officer and for the purposes of
the revolution. In such cases we have repeatedly held that the persons com-
mitting the crime are entitled to the benefits of the amnesty proclamation of
July 4, 1902.

C U.S. v. Baldello (1904)21

On April 14, 1903, a band of about twelve men, among whom were the defen-
dants, armed with daggers and one revolver, led by the defendant Baldello
and one Bonifacio, embarked in a passenger steamer at Manila for the town
of Guagua in the Province of Pampanga. Having arrived at the town about 12
o’clock of the same day, they attacked the municipal building, overpowered the
sentinel, a policeman, took from him his gun and revolver, overpowered the
clerks in the offices, and seized four other guns and certain ammunition, which
they obtained by breaking open the chest in which it was kept. They attacked
and wounded another policeman and took his gun. On leaving the municipal
building they marched through the streets, crying to the people to follow them
and attack the Government. The people not only refused to join the party, but,
with the policemen of the place, pursued them. A running fight was kept up
for some distance, during which two of the party of the defendants were killed
and one wounded and five of the pursuers were wounded. The pursuit ended
with the capture of the defendants. That this band was part of an organization
to overthrow the Government was fully proved. Among other articles seized
when the defendants were taken was the seal of the defendant Baldello show-
ing that he was a brigadier-​general of the “Reborn Philippine Revolution.”
…

D U.S. v. Lardizabal (1903)22

It appears that the act with which the accused is charged is that he, while com-
manding officer of a column of the Filipino army operating in the Island of
Marinduque, at a time when he had in his possession an American prisoner
of war, having ordered a retreat on account of the immediate presence of the
enemy, and considering that the prisoner owing to his weak condition could
not keep up with the forced marches of the column, and that in case of his
being left where he was he might indicate the direction taken by the column
and thus expose it to the danger of falling into the hands of the enemy, directed

21 g.r. No. 1330, 28 March 1904.

22 g.r. No. 900, 14 February 1903.

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that this prisoner be executed, an act which unquestionably constitutes a vio-

lation of the laws of war.
The purpose of the proclamation of amnesty in favor of the “insurgents who
have been until recently resisting the authority and sovereignty of the United
States” is “to relieve them from the penalty to which they might have rendered
themselves liable by reason of their participation in the insurrections men-
tioned and by reason of having committed during such insurrections acts in
violation of the law.”
With regard to Lardizabal’s participation in the insurrection it was not neces-
sary for him to avail himself of the benefits of the amnesty inasmuch as he had
voluntarily surrendered prior to the promulgation thereof. He was prosecuted on
a criminal charge for an act done by him during the insurrection, but this was
not an isolated act such as a “political offense committed during the insurrection
pursuant to orders issued by the civil or military insurrectionary authorities,” but
was a measure which, whether necessary or not, was inherent in the military
operations for the preservation of the troops commanded by him and of which
he was the supreme officer on that island. It was an act which, while from the
standpoint of military law might be regarded as one of cruelty, was at the same
time one depending absolutely upon the discretion of an officer in charge of a
command for securing the safety of the troops under his control and constitutes
no other offense than that of sedition, within which term the war itself is included
by the letter and spirit of the proclamation. Therefore as the principal offenses of
treason and sedition, committed by those who, by reason of their participation
in the insurrections mentioned, were undergoing prosecution at the time of the
publication of the amnesty proclamation fall within its scope, and as the accused
took part against the United States in the insurrection by placing himself at the
head of an armed troop, which in his judgment could not be saved from falling
into the hands of the enemy except by means of the removal of a prisoner of war
who could have put upon the tracks of the retreating forces the army which was
entering the island, he is in our opinion guilty of an act which, although a viola-
tion of the laws of war, is one which was inherent in his military operations, and
in consequence must be considered as an act of sedition. Lardizabal is, therefore,
entitled to the benefits of the amnesty proclamation.

E U.S. v. Pacheco (1903)23

…
It appears from the record that the two deceased had come from Zambales,
and were going about in the town of Dagupan selling English dictionaries;

23 g.r. No. 579, 24 July 1903.

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that on the afternoon in question they had come from the house of Ynocencio
Fernandez, situated in Dagupan; that, according to the testimony of several
witnesses, the accused, who were then insurrectionists, Teodoro Pacheco being
a recruiting captain, seized and killed the deceased because it was supposed,
since they sold books written in English, that they were spies of the Americans,
this presumption or belief being also testified to by several witnesses.
It does not appear from the record that the aggressors were impelled to kill
the deceased by any motive other than that the latter were suspected of being
spies and, therefore, traitors to the revolutionary party to which the defen-
dants belonged. From the foregoing statement of facts, it may therefore be said
that the two murders prosecuted herein were of a political character and the
result of internal political hatreds between Filipinos, the defendants having
been insurgents opposed to the constituted government.
The case has to do with two crimes for which, under the penal law, the
severest punishment has always been inflicted. However, considering the cir-
cumstances under which these crimes were committed and the fact that the
sovereign power in these Islands, in view of the extraordinary and radical dis-
turbance which, during the period following the year 1896, prevailed in and
convulsed this country, and prompted by the dictates of humanity and public
policy, has deemed it advisable to blot out even the shadow of a certain class
of offenses, decreeing; full pardon and amnesty to their authors—​an act of
elevated statesmanship and timely generosity, more political than judicial in
its nature, intended to mitigate the severity of the law—​it is incumbent upon
us, in deciding this case, to conform our judgment to the requirements and
conditions of the decree so promulgated.

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 ­c hapter 3

National Territory

Overview

This section deals with the legal framework for the most significant interna-
tional law event for the Philippines in recent times, namely, its 2016 victory
against China at the Permanent Court of Arbitration (pca) over the disputed
waters in the South China Sea. Alberto del Rosario, the Secretary of Foreign
Affairs who initiated its filing, described the Philippines’ recourse to the pca as
affirming the “rule of law in international relations” and of “international law
[as] the great equalizer among states.”1
The international law relevant to Philippine land and maritime territory
consists of the most authoritative legal instruments: the 1898 Treaty of Paris
between Spain and the United States that fixed the proverbial metes and
bounds of Philippine territory; the precedent-​setting 1928 Las Palmas case that
determined the rules that gave rise to title over disputed islands; the 1982 U.N.
Convention on the Law of the Sea (unclos) that inaugurated a new regime
for maritime claims; and finally, the Philippines v. China case where the pca at
The Hague squarely rejected China’s expansive claim to a “nine-​dash line”, the
unilateral U-​shaped line that encompassed almost the entirety of the South
China Sea to the exclusion of the unclos-​based claims of all the coastal states,
including Vietnam, Malaysia, Brunei, and the Philippines.

Terrestrial Claims

As regards land territory, the most pressing problems for the Philippines are
one, the secessionist aims of successive groups of Islamic rebels in the coun-
try’s second-​largest and southernmost island of Mindanao; and two, the islands
covered by China’s “dotted U” claim over the South China Sea. For the first, the
legal implications are dealt with in the Northern Cotabato case (and infra, in
Ch. 10, Legal Treatment of Armed Groups). For the second, these claims are laid
out in various legal issuances by the Philippine Government to include the

1 Albert F. del Rosario, Statement before the Permanent Court of Arbitration on

Maritime Entitlements (7 July 2015) at https://​www.americanrhetoric.com/​speeches/​
albertdelrosariopermanentcourtofarbitrationsouthchinasea.htm.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004469723_005

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National Territory 75

Kalayaan Islands Group which lies within the Chinese “nine-​dash line”. There
is actually a third issue, the claim against Malaysia over Sabah in North Borneo.
Though it is not a pressing problem, this chapter includes the Philippine stat-
ute that lays down the claim, and Ch. 4 (International Court of Justice) includes
an excerpt regarding the Philippine Intervention in the icj case Sovereignty
over Pulau Ligitan and Pulau Sipadan (Indonesia/​Malaysia).
Island of Las Palmas. The starting point for any discussion of Philippine ter-
ritory, terrestrial or maritime, is the 1898 Treaty of Paris, later expanded in 1900
when Spain and the United States, “desiring to remove any ground of misun-
derstanding growing out of the interpretation of Article iii of the [1898] Treaty
of Peace”, signed a “cession agreement” to include

any and all islands belonging to the Philippine Archipelago, lying outside
the lines described in Article iii of that Treaty and particularly to the
islands of Cagayan [Mapun], Sulu and Sibutu and their dependencies,
and agrees that all such islands shall be comprehended in the cession of
the Archipelago as fully as if they had been expressly included within those
lines. [emphases added]

Las Palmas was a dispute between the United States and Netherlands (the col-
onizers, respectively, of the Philippines and Indonesia) over an island that lay
within the 1898 treaty lines (and therefore under U.S. sovereignty) but which—​
as the arbitrator established—​was effectively occupied by the Dutch as part
of its Indonesian colony. Las Palmas yields a wealth of rulings that are today
accepted as law: the importance of the “continuous and peaceful display of
sovereignty” in determining title; the concept of “intertemporal” law, since
in this case the United States claimed title by way of discovery by Spain in
the 16th century vis-​à-​vis the Netherlands’ effectivités in the 20th century; and
the nature in international law of agreements between the Dutch East India
Company vis-​à-​vis native princes.
The other issue affecting land territory springs from claims by indigenous
peoples of the Cordilleras in Northern Luzon and the secessionist Islamic
rebellion in the southern island of Mindanao.
Cariño v. Insular Government. The oldest case comes from the U.S. Supreme
Court and, significantly, was decided by Justice Oliver Wendell Holmes. He
held that the ancestral claim by a chieftain antedated the original claim of title
by the Spanish Crown. He confronted the dilemma of how modern legal sys-
tems accommodate, or ignore, the ways of indigenous peoples, e.g., Spain’s pol-
icy toward “people not recognized as entitled to the treatment accorded to those
in the same zone of civilization with themselves.” Citing the Solicitor General’s

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description of native chief’s “savage tribe that never was brought under the
civil or military government of the Spanish Crown”, Holmes held that to apply
the technical rules of land registration to them would convert the natives into
“mere trespassers” and “amount to a denial of native titles … for the want of
ceremonies which the Spaniards would not have permitted and had not the
power to enforce.” He contrasted the United States’ benevolent aims in the
Philippines to that of the Native American Indians:

[Considering that the U.S. has applied the “due process protection to
property” in the Philippines] it is hard to believe that the United States
was ready to declare in the next breath … that it meant by ‘property’ only
that which had become such by ceremonies of which presumably a large
part of the inhabitants never had heard, and that it proposed to treat
as public land what they, by native custom and by long association …
regarded as their own.

Abbas v. comelec. This deals with the 1976 Tripoli Agreement, a peace
agreement signed by the Moro National Liberation Front with the government
of President Ferdinand Marcos, and brokered by Libya’s Muammar Ghaddafi.
It arose after democracy was restored and a new Constitution was adopted
under President Corazon Aquino. That Constitution and the implementing
statute provided for an Autonomous Region for Muslim Mindanao to be cre-
ated after it is approved in a plebiscite. However, the Tripoli Agreement did not
require the holding of such a plebiscite, and the petitioners thus insisted that
a “treaty” obligation should trump national law.
Province of North Cotabato. This deals with the one of the latest of the auton-
omy charters for Muslim-​dominated parts of the island of Mindanao. The
excerpt deals with the Supreme Court discussion of the distinction between
external and internal self-​determination. In the end, the Court actually struck
down the proposed Bangsamoro autonomy charter because the powers it
vested in the regional government powers amounted to powers of sovereignty
that were reserved by the Constitution to the national government alone.

Maritime Territory

As regards maritime territory, early on, the main point of contention was
which rules applied: the 1898 Treaty of Paris or the 1982 unclos? This issue
was squarely and definitively resolved by the Philippine Supreme Court in 2011
in the Magallona case.

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Magallona. The 1898 treaty drew straight lines on a map and included all the
islands and waters within the treaty lines as part of the Philippines. In accor-
dance with the law prevailing then, everything within those lines became part
of territory that was ceded by Spain to the United States which in turn ceded
it to the Philippines. On the other hand, in 1984, the Philippines ratified the
1982 unclos which provided nuanced competencies exemplified by terms
like “sovereignty”, “control”, “sovereign rights”, and “jurisdiction”, attributed to a
graduated delineation of what we now call maritime zones, namely, the terri-
torial sea2; contiguous zone3; continental shelf4; and Exclusive Economic Zone.5
With this careful allocation of competencies, an archipelago like the
Philippines would have suffered a geographic disadvantage since the typical
baselines would be drawn around individual islands and would leave waters
between the islands open and vulnerable. The unclos thus enclosed those
waters within “archipelagic baselines”, drawn from the “outermost points of
the outermost islands and drying reefs of the archipelago provided that within
such baselines are included the main islands”6 and subject to other constraints,
e.g., these “shall not depart to any appreciable extent from the general config-
uration of the archipelago”.7 The archipelagic state has sovereignty over all the
waters within those baselines, called archipelagic waters,8 and the territorial
sea and other maritime zones are measured from those baselines.9
Which of these two international law regimes determined Philippine mari-
time territory? In the Magallona case, the Philippine Supreme Court upheld the
2009 Baselines Law that was drafted in accordance with the unclos. The peti-
tioners had argued that “Philippine sovereignty over territorial waters extends
hundreds of nautical miles around the Philippine archipelago, embracing the
rectangular area delineated in the Treaty of Paris”, an area far larger than the
measly 12 nautical mile band of territorial sea around the baselines provided

2 United Nations Convention on the Law of the Sea (hereinafter, “unclos”) art. 2, 10 December
1982, 1833 u.n.t.s. 397 (12 nautical miles from the baselines, “sovereignty” over the waters,
bed and subsoil, and air space, except for the right of innocent passage).
3 unclos art. 33, 10 December 1982, 1833 u.n.t.s. 397 (24 nautical miles from the baselines,
“control” for customs, fiscal, immigration or sanitary regulations).
4 unclos art. 77, 10 December 1982, 1833 u.n.t.s. 397 (up to 200 n.m. from the baselines, “sov-
ereign rights” for exploiting its natural resources).
5 unclos art. 56.1, 10 December 1982, 1833 u.n.t.s. 397 (200 n.m. from the baselines, “sover-
eign rights” over the economic exploitation and exploration of natural resources and “juris-
diction” for inter alia scientific research and environmental protection) [hereinafter, “eez”].
6 unclos art. 47.1, 10 December 1982, 1833 u.n.t.s. 397.
7 unclos art. 47.3, 10 December 1982, 1833 u.n.t.s. 397.
8 unclos arts. 2.1 and 49, 10 December 1982, 1833 u.n.t.s. 397.
9 unclos art. 48, 10 December 1982, 1833 u.n.t.s. 397.

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78  Chapter 3

under the unclos. They said that the Philippines would lose “about 15,000
square nautical miles of territorial waters.”
The Court held that the baselines were “nothing but statutory mechanisms
for unclos iii States parties to delimit with precision the extent of their mar-
itime zones and continental shelves.”

Even under petitioners’ theory that the Philippine territory embraces

the islands and all the waters within the rectangular area delimited in
the Treaty of Paris, the baselines of the Philippines would still have to be
drawn in accordance with [the Baselines Law] because this is the only
way to draw the baselines in conformity with unclos iii.

The Court rejected the argument that the unclos diminished the Philippines’
maritime territory, saying that, in fact, the unclos lines “increased the
Philippines’ total maritime space (covering its internal waters, territorial sea
and exclusive economic zone) by 145,216 square nautical miles.” What the
Court dodged, however, was the question of whether the Baselines Law thus
“converted” internal waters under the 1898 treaty-​lines into archipelagic waters
subject to the right of innocent and sea lanes passage. In other words, the
waters within the 1898 treaty lines were “territorial waters” subject to sover-
eignty, while the expanded “maritime space” under the unclos were not sub-
ject to full sovereignty but merely varied forms of less-​than-​sovereign compe-
tencies. On the other hand, fixing the Philippines’ maritime territory squarely
on the basis of the unclos may have set the stage for the filing of its case
against China at the pca (see below) which relied on the jurisdictional and
substantive rules under the unclos.
Philippines v. China at The Hague. On 22 January 2013, the Philippines began
arbitral proceedings at the Permanent Court of Arbitration10 against China
under the dispute settlement provisions of the United Nations Convention
on the Law of the Sea. China refused to participate in the proceedings and
challenged the jurisdiction of the Arbitral Tribunal, saying that the arbitra-
tion pertained to “territorial sovereignty over several maritime features in the
South China Sea, which [was] beyond the scope of the Convention”; that the
matter was already covered by “bilateral instruments and the Declaration on
the Conduct of Parties in the South China Sea”; and that the matter “consti-
tute[d]‌an integral part of maritime delimitation between the two countries,

10 Hereinafter, “pca”.

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National Territory 79

thus falling within the scope of the declaration filed by China in 2006” that
excluded certain matters from the scope of arbitration.11
On 29 October 2015, the Tribunal, exercising its compétence de la compe-
tence, determined that it had jurisdiction to hear the case. On 12 July 2016, the
Tribunal rendered its decision granting almost all of the Philippines’ fifteen
submissions.
On the question of jurisdiction, the Tribunal held that the unclos, a treaty
binding on both states, does not allow a state to exempt itself from its dis-
pute resolution mechanisms. It rejected China’s argument that the dispute
was actually about territorial sovereignty or historic title, and thus fell outside
the Tribunal’s jurisdiction. The Tribunal held that it can decide the Philippine
claims without addressing the terrestrial claims of either party. Neither did the
case involve maritime boundary delimitation which are excluded from dispute
settlement under Article 298 of the unclos and the Chinese declaration made
thereunder. The case did not involve delimitation of overlapping maritime
zones but the determination of entitlement to a maritime zone and the nature
of the features in the area. Moreover, the 2002 China-​a sean Declaration on
the Conduct of Parties in the South China Sea was a non-​binding, political
agreement that did not provide a mechanism for binding settlement, and did
not bar the Philippines from having recourse to arbitration.
The Tribunal, however, held that it had no jurisdiction over the Philippine
submission concerning military activities at the Second Thomas Shoal.
However, since China had insisted that its land reclamation and construc-
tion of artificial islands in the Spratly Islands was genuinely non-​military, the
Tribunal held that, based on China’s representations, those were within its
jurisdiction
On the merits, the Tribunal held, first, that there “there was no legal basis
for China to claim historic rights to resources, in excess of the rights provided
for by the Convention, within the sea areas falling within the ‘nine-​dash line’.”
The Tribunal found that China’s claim to historic rights to resources was
incompatible with the detailed allocation of rights and maritime zones in

11 Position Paper of the Government of the People’s Republic of China on the Matter of
Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (07
December 2014), in Chinese Society of International Law, The South China Sea Arbitration
Awards: A Critical Study, 17 Chinese J. Intl. L. 207, 655–​78 (2018); Statement of the
Ministry of Foreign Affairs of the People’s Republic of China on the Award on Jurisdiction and
Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the
Request of the Republic Philippines (30 October 2015), in Chinese Society of International
Law, The South China Sea Arbitration Awards: A Critical Study, 17 Chinese J. Intl. L. 207,
679–​80 (2018).

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80  Chapter 3

the Convention and concluded that, to the extent China had historic rights to
resources in the waters of the South China Sea, such rights were extinguished
by the entry into force of the Convention to the extent they were incompatible
with the Convention’s system of maritime zones.
Second, the Tribunal held that all of the high-​tide features in the Spratly
Islands were legally “rocks” not capable of generating an eez or continen-
tal shelf.
Third, the Tribunal held that Mischief Reef, Second Thomas Shoal and Reed
Bank form part of the Philippines’ eez and continental shelf, and “are not over-
lapped by any possible entitlement of China.” Accordingly, the Tribunal held
that China had:

(a) interfered with Philippine petroleum exploration at Reed Bank,

(b) purported to prohibit fishing by Philippine vessels within the
Philippines’ exclusive economic zone, (c) protected and failed to pre-
vent Chinese fishermen from fishing within the Philippines’ exclusive
economic zone at Mischief Reef and Second Thomas Shoal, and (d) con-
structed installations and artificial islands at Mischief Reef without the
authorization of the Philippines.

Fourth, the Tribunal found that traditional fishing rights existed outside the
territorial sea and that these rights had not been extinguished by the unclos.
Accordingly, the Tribunal held “that China had violated its duty to respect to
the traditional fishing rights of Philippine fishermen by halting access to the
Shoal after May 2012.” Conversely, the Tribunal held that it would similarly
hold the Philippines liable if it were to prevent fishing by Chinese nationals at
Scarborough Shoal.
Fifth, the Tribunal held that China had breached its unclos obligations
on maritime safety and under the Convention on the International Regulation
for Preventing Collusions at Sea, when in April and May 2012, Chinese law
enforcement vessels physically obstructed Philippine vessels from access to
the Scarborough Shoal, e.g., they would approach the Philippine vessels at
high speed, thus risking collision. The Tribunal was assisted by an independent
expert on navigational safety.
Finally, the Tribunal noted that China had built a large artificial island on
Mischief Reef, located in the eez of the Philippines, caused irreparable harm
to the coral reef ecosystem, and permanently destroyed evidence of the nat-
ural condition of these maritime features. The Tribunal held that China thus
breached its obligation to refrain from aggravating or extending the dispute
pending the settlement process.

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National Territory 81

The case summary is taken from the case syllabus prepared by the Permanent
Court of Arbitration itself. China declared that the “award is null and void
and has no binding force”, that China “neither accepts nor recognizes it” and
“opposes and will never accept any claim or action based on those awards.”12
Postscript to the pca award. On the fourth anniversary of the pca award in
July 2020, the Philippines issued a statement saying that the “arbitration award
conclusively settled the issue of historic rights and maritime entitlements in
the South China Sea” and affirmed “its adherence to the award and its enforce-
ment without any possibility of compromise or change.” The Philippine state-
ment concluded that the “award is non-​negotiable.”13 Soon after, the U.S. State
Department affirmed that it considered the pca award “final and legally bind-
ing on both parties” and added that it was “aligning [its] position on the prc’s
maritime claims in the scs with the Tribunal’s decision.”14
In the meantime, the legal authority of the pca award has been invoked at
the United Nations,15 in a series of notes verbales that has been called a “battle
of diplomatic notes”16 where the United States, Indonesia and the Philippines
invoked the pca award to reject the Chinese protest against Malaysia’s

12 Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award
of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the
Request of the Republic of the Philippines (12 July 2016), supra note 11, at 681–​82; Statement
of the Government of the People’s Republic of China on China’s Territorial Sovereignty
and Maritime Rights and Interests in the South China Sea (12 July 2016), supra note 11, at
683–​84.
13 Statement of Secretary of Foreign Affairs Teodoro L. Locsin, Jr. on the 4th Anniversary of the
Issuance of the Award in the South China Sea Arbitration, Department of Foreign Affairs (12
July 2020), available at: https://​dfa.gov.ph/​dfa-​news/​statements-​and-​advisoriesupdate/​
27140-​ s tatement- ​ o f- ​ s ecretary- ​ o f- ​ f oreign- ​ a ffairs- ​ t eodoro- ​ l - ​ l ocsin- ​ j r- ​ o n- ​ t he- ​ 4 th-​
anniversary-​of-​the-​issuance-​of-​the-​award-​in-​the-​south-​china-​sea-​arbitration.
14 U.S. Secretary of State Michael R. Pompeo, U.S. Position Maritime Claims in the South
China Sea, 13 July 2020, available at: https://​www.state.gov/​u-​s-​position-​on-​maritime-​
claims-​in-​the-​south-​china-​sea/​.
15 Renato Cruz de Castro, After Four Years, the Philippines Acknowledges the 2016 Arbitral
Tribunal Award!, in Asian Maritime Transparency Initiative, Center for Strategic and
International Studies, available at: https://​amti.csis.org/​after-​four-​years-​the-​philippines-​
acknowledges-​the-​2016-​arbitral-​tribunal-​award/​.
16 Nguyen Hong Thao, South China Sea: The Battle of the Diplomatic Notes Continues,
The Diplomat (Aug. 4, 2020), available at: https://​thediplomat.com/​2020/​08/​south-​
china-​sea-​the-​battle-​of-​the-​diplomatic-​notes-​continues/​. See generally, Outer limits
of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the
Commission: Partial Submission by Malaysia in the South China Sea, Commission on the
Limits of the Continental Shelf (clcs), available at: https://​www.un.org/​Depts/​los/​clcs_​
new/​submissions_​files/​submission_​mys_​12_​12_​2019.html.

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82  Chapter 3

submission on its “extended continental shelf.” Vietnam likewise rejected the

Chinese position but did not expressly invoke the pca award.17
In December 2019, Malaysia made a submission, addressed to the U.N.
Secretary General, to the Commission on the Limits of the Continental Shelf
(clcs) provided for in the unclos.18 China instantly responded, stating that
Malaysia’s claim “seriously infringed China’s sovereignty, sovereign rights and
jurisdiction in the South China Sea” and urged the Commission “not to con-
sider” Malaysia’s submission.19 In July 2020, Malaysia replied, rejecting China’s
“nine dash line” as “exceed[ing] the geographic and substantive limits of
China’s maritime entitlements under the Convention.”20
In the meantime, in March 2020, the Philippines replied to China and reit-
erated inter alia the findings and conclusions in the pca award,21 and China
expectedly stated that it “will never accept any claim or action based on the
awards.”22
In May 2020, Indonesia also replied to what it called China’s “protest” against
these positions taken by Malaysia and the Philippines, citing expressly the pca
award to say that

the Nine-​Dash Line map implying historic rights claim clearly lacks inter-
national legal basis and is tantamount to upset unclos 1982. This view
has also been confirmed by the Award of 12 July 2016 by the Tribunal that
any historic rights that the People’s Republic of China may have had to

17 Letter of Vietnam’s Permanent Representative to the United Nations to the U.N. Secretary
General (30 March 2020), available at: https://​www.un.org/​Depts/​los/​clcs_​new/​
submissions_​files/​mys_​12_​12_​2019/​VN20200330_​ENG.pdf.
18 Letter of Malaysia’s Permanent Representative to the United Nations to the U.N. Secretary
General (12 December 2019), Document ha 59/​19, available at https://​www.un.org/​Depts/​
los/​clcs_​new/​submissions_​files/​mys85_​2019/​2019_​12_​12_​MYS_​NV_​UN_​001.pdf.
19 Letter of China’s Permanent Representative to the United Nations to the U.N. Secretary
General (12 December 2019), Document cml/​14/​2019, available at: https://​www.un.org/​
Depts/​los/​clcs_​new/​submissions_​files/​mys85_​2019/​CML_​14_​2019_​E.pdf.
20 Letter of Malaysia’s Permanent Representative to the United Nations to the U.N. Secretary
General (29 July 2020), Document ha 26/​20, available at: https://​www.un.org/​Depts/​los/​
clcs_​new/​submissions_​files/​mys_​12_​12_​2019/​2020_​07_​29_​MYS_​NV_​UN_​002_​OLA-​2020
-​00373.pdf.
21 Letter of the Philippines’ Permanent Representative to the United Nations to the
U.N. Secretary General (5 March 2020), Document 000191-​2020, available at: https://​
www.un.org/​Depts/​los/​clcs_​new/​submissions_​files/​mys_​12_​12_​2019/​2020_​03_​06_​PHL
_​NV_​UN_​001.pdf.
22 Letter of China’s Permanent Representative to the United Nations to the U.N. Secretary
General (23 March 2020), available at: https://​www.un.org/​Depts/​los/​clcs_​new/​
submissions_​files/​mys_​12_​12_​2019/​China_​Philippines_​ENG.pdf.

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National Territory 83

the living and non-​living resources were superseded by the limits of the
maritime zones provided for by unclos 1982.23

On 2 June 2020, China replied to Indonesia, rejecting what it referred to as “the

so-​called South China Sea arbitration and the award.”24 This language, which
appears in a note verbale to the U.N. Secretary General, tracks the statement
by a Chinese government spokesman referring to the pca award as “a piece of
trash paper.”25 On 12 June 2020, Indonesia replied, stating that its position on
maritime claims in the South China Sea has been “subsequently confirmed by
the [pca] arbitral tribunal award.”26
On 1 June 2020, the United States reacted to China’s position on Malaysia’s
submission, recalling that, soon after the pca award, the United States
“objected to [China’s] assertions in a demarche and note verbale on December
28, 2016.” Citing the pca award, it stated:

The United States notes in this regard that the Tribunal unanimously
concluded in its ruling—​which is final and binding on China and the
Philippines under Article 296 of the Convention—​that China’s claim
to historic rights is incompatible with the Convention to the extent it
exceeds the limits of China’s possible maritime zones as specifically pro-
vided for in the Convention.27

23 Letter of the Indonesia’s Permanent Representative to the United Nations to the U.N.
Secretary General (26 May 2020), Document 126/​p ol-​703/​v /​20, available at: https://​
www.un.org/​Depts/​los/​clcs_​new/​submissions_​files/​mys_​12_​12_​2019/​2020_​05_​26_​IDN
_​NV_​UN_​001_​English.pdf.
24 Letter of China’s Permanent Representative to the United Nations to the U.N. Secretary
General (2 June 2020), Document cml/​46/​2020, available at: https://​www.un.org/​Depts/​
los/​clcs_​new/​submissions_​files/​mys_​12_​12_​2019/​2020_​06_​02_​CHN_​NV_​UN_​eng.pdf.
25 Renato Cruz de Castro, The 12 July 2016 Permanent Court of Arbitration’s (pca) Award: The
Philippines’ Lawfare versus China’s Realpolitik in the South China Sea Dispute, 8 Intl. J. of
China Stud. 345, 345, 360 (2017).
26 Letter of Indonesia’s Permanent Representative to the United Nations to the U.N.
Secretary General (12 June 2020), Document No. 148/​p ol-​703/​v i/​20, available at: https://​
www.un.org/​Depts/​los/​clcs_​new/​submissions_​files/​mys_​12_​12_​2019/​2020_​06_​12_​IDN
_​NV_​UN_​002_​ENG.pdf.
27 Letter of the U.S. Permanent Representative to the United Nations to the U.N. Secretary
General (1 June 2020), available at: https://​usun.usmission.gov/​wp-​content/​uploads/​
sites/​296/​200602_​KDC_​ChinasUnlawful.pdf.

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84  Chapter 3

The United States “urge[d]‌China to conform its maritime claims to interna-

tional law …; to comply with the [pca] Tribunal’s 12 July 2016 decision; and to
cease its provocative activities in the South China Sea.”28
Finally, Australia similarly rejected China’s position, citing the pca expressly
in its note verbale.

Australia rejects China’s claim to ‘historic rights’ or ‘maritime rights

and interests’ as established in the ‘long course of historical practice’ in
the South China Sea. The Tribunal in the 2016 South China Sea Arbitral
Award found these claims to be inconsistent with unclos and, to the
extent of that inconsistency, invalid.29

Significantly, Australia “dispute[d]‌China’s claim that it is not bound by the

Arbitral Award.”

The rationale put forward by China as an explanation of why the

Arbitral Award is not binding on China is not supported by inter-
national law. Pursuant to Article 296 and Article 11 of Annex vii of
unclos the Tribunal’s decision is final and binding on both parties to
the dispute.30

China responded, saying it “does not accept the contents” of Australia’s note
verbale.31
Finally, another note verbale replying to the Chinese position has been
issued issued, this time in behalf of France, Germany and the United Kingdom,
affirming the “universal and unified character of unclos that sets out the
legal framework within which all activities in the oceans and seas must be
carried out, and underscore that the integrity of the Convention needs to be
maintained.” It expressly cites the pca award to reject the Chinese position on
“historic rights”, more specifically that “claims with regard to the exercise of

28 Id.
29 Note verbale of Australia’s Permanent Representative to the United Nations to the U.N.
Secretary General (23 July 2020), available at: https://​www.un.org/​depts/​los/​clcs_​new/​
submissions_​files/​mys_​12_​12_​2019/​2020_​07_​23_​AUS_​NV_​UN_​001_​OLA-​2020-​00373.pdf.
30 Id.
31 Letter of China’s Permanent Representative to the United Nations to the U.N.
Secretary General (29 July 2020), available at: https://​www.un.org/​Depts/​los/​clcs_​new/​
submissions_​files/​mys_​12_​12_​2019/​20200729_​CHN_​NV_​UN_​e.pdf.

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National Territory 85

“historic rights” over the South China Sea waters do not comply with interna-
tional law and unclos provisions.”32
Barely a week after, Philippine President Rodrigo Duterte, speaking before
the U.N. General Assembly for the first time, “welcome[d]‌the increas-
ing number of states that have come in support of the award.” He recalled
the nation’s commitment to the 1982 Manila Declaration on the Peaceful
Settlement of International Disputes and “affirm[ed] that commitment
in the South China Sea in accordance with unclos and the 2016 Arbitral
Award.”33

The Award is now part of international law, beyond compromise and

beyond the reach of passing governments to dilute, diminish or abandon.
We firmly reject attempts to undermine it.34

He hailed the pca award as embodying the “triumph of reason over rashness,
of law over disorder.”35

i The National Territory vis-​à-​vis Other States

A Treaty of Peace between Spain and the United States (1898)36

article iii
Spain cedes to the United States the archipelago known as the Philippines
Islands, and comprehending the islands lying within the following line:
[coordinates omitted, cited as the Treaty Lines]
The United States will pay to Spain the sum of twenty million dollars, within
three months after the exchange of the ratifications of the present treaty.

32 Letter of the United Kingdom of Great Britain and Northern Ireland’s Permanent
Representative to the United Nations to the U.N. Secretary General (16 September 2020),
available at: https://​www.un.org/​Depts/​los/​clcs_​new/​submissions_​files/​mys_​12_​12_​2019/​
2020_​09_​16_​GBR_​NV_​UN_​001.pdf.
33 Statement of President Rodrigo Roa Duterte, General Debate, 75th Session of the General
Assembly (22 September 2020), available at: https://​www.officialgazette.gov.ph/d​ ownloads/​
2020/ ​ 0 9sep/ ​ 2 020sep22-​ S tatement-​ o f-​ P resident- ​ Rodrigo- ​ Roa- ​ D uterte- ​ d uring- ​ t he
-​General-​Debate-​of-​the-​75th-​Session-​of-​the-​United-​Nations-​General-​Assembly.pdf.
34 Id.
35 Id.
36 10 December 1898, 30 Stat. 1754.

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86  Chapter 3

B The Constitution of the Republic of the Philippines (1987)37

article i. National Territory
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its terrestrial, flu-
vial, and aerial domains, including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. The waters around, between,
and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.
article ii. Declaration of Principles and State Policies
section 3. Civilian authority is, at all times, supreme over the military. The
Armed Forces of the Philippines is the protector of the people and the State.
Its goal is to secure the sovereignty of the State and the integrity of the national
territory.
section 7. The State shall pursue an independent foreign policy. In its rela-
tions with other states the paramount consideration shall be national sover-
eignty, territorial integrity, national interest, and the right to self-​determination.
article xii. National Economy and Patrimony
section 2. All lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, fisheries, forests or tim-
ber, wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall
not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The State
may directly undertake such activities, or it may enter into co-​production, joint
venture, or production-​sharing agreements with Filipino citizens, or corpora-
tions or associations at least sixty per centum of whose capital is owned by
such citizens. Such agreements may be for a period not exceeding twenty-​five
years, renewable for not more than twenty-​five years, and under such terms
and conditions as may be provided by law. In cases of water rights for irriga-
tion, water supply, fisheries, or industrial uses other than the development of
water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation’s marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens. …

37 1987 Phil. Const., available at: https://​www.officialgazette.gov.ph/​constitutions/​1987

-​constitution/​. [emphases added].

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C Philippine Legislation and Executive Issuances

1 An Act Defining the Baselines of the Territorial Sea of the
Philippines (1961)38
whereas, the Constitution of the Philippines describes the national territory
as comprising all the territory ceded to the United States by the Treaty of Paris
concluded between the United States and Spain on December 10, 1898, the
limits of which are set forth in Article iii of said treaty, together with all the
islands embraced in the treaty concluded at Washington, between the United
States and Spain on November 7, 1900, and in the treaty concluded between
the United States and Great Britain on January 2, 1930, and all the territory over
which the Government of the Philippine Islands exercised jurisdiction at the
time of the adoption of the Constitution;
whereas, all the waters within the limits set forth in the above-​mentioned
treaties have always been regarded as part of the territory of the Philippine
Islands;
whereas, all the waters around, between and connecting the various
islands of the Philippines archipelago, irrespective of their width or dimen-
sion, have always been considered as necessary appurtenances of the land ter-
ritory, forming part of the inland or internal waters of the Philippines;
whereas, all the waters beyond the outermost islands of the archipelago
but within the limits of the boundaries set forth in the aforementioned treaties
comprise the territorial sea of the Philippines;
whereas, the baselines from which the territorial sea of the Philippines
is determined consist of straight lines joining appropriate points of the outer-
most islands of the archipelago; and
whereas, the said baselines should be clarified and specifically defined
and described for the information of all concerned; Now, therefor,
section 1. The baselines for the territorial sea of the Philippines are hereby
defined and described specifically as follows:
…
[coordinates omitted]
…
section 2. All waters within the baselines provided for in Section one hereof
are considered inland or internal waters of the Philippines.

38 Rep. Act. No. 3046 (1961).

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2 An Act to Amend Section 1 of Rep. Act. No. 3046 (1968)39

section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of
the baselines of the territorial sea around the territory of Sabah, situated in
North Borneo, over which the Republic of the Philippines has acquired domin-
ion and sovereignty.

3 Declaring Certain Areas Part of the Philippine Territory and

Providing for Their Government and Administration (1978)40
whereas, by reason of their proximity the cluster of islands and islets in the
South China Sea situated within the following;
kalayaan island group
…
[coordinates omitted]
…
are vital to the security and economic survival of the Philippines;
whereas, much of the above area is part of the continental margin of the
Philippine archipelago;
whereas, these areas do not legally belong to any state or nation but, by
reason of history, indispensable need, and effective occupation and control
established in accordance with international law, such areas must now be
deemed to belong and subject to the sovereignty of the Philippines;
whereas, while other states have laid claims to some of these areas, their
claims have lapsed by abandonment and can not prevail over that of the
Philippines on legal, historical, and equitable grounds;
now, therefore, i, ferdinand e. marcos, President of the Philippines,
by virtue of the powers in me vested by the Constitution, do hereby decree as
follows:
section 1. The area within the following boundaries:
kalayaan island group
…
[coordinates omitted]
…
including the sea-​bed, sub-​soil, continental margin and air space shall belong
and be subject to the sovereignty of the Philippines. Such area is hereby

39 Rep. Act No. 5446 (1968).

40 Pres. Dec. No. 1596 (1978).

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constituted as a distinct and separate municipality of the Province of Palawan

and shall be known as “Kalayaan.”
…

4 Establishing an Exclusive Economic Zone and for Other Purposes

(1978)41
whereas, an exclusive economic zone extending to a distance of two hun-
dred nautical miles from the baselines from which the territorial sea is mea-
sured is vital to the economic survival and development of the Republic of the
Philippines;
whereas, such a zone is now a recognized principle of international law;
now, therefore, i, ferdinand e. marcos, President of the Philippines,
by virtue of the powers vested in me by the Constitution, do hereby decree
and order:
section 1. There is hereby established a zone to be known as the exclusive
economic zone of the Philippines. The exclusive economic zone shall extend
to a distance of two hundred nautical miles beyond and from the baselines
from which the territorial sea is measured: Provided, That, where the outer
limits of the zone as thus determined overlap the exclusive economic zone of
an adjacent or neighboring state, the common boundaries shall be determined
by agreement with the state concerned or in accordance with pertinent gener-
ally recognized principles of international law on delimitation.
section 2. Without prejudice to the rights of the Republic of the Philippines
over its territorial sea and continental shelf, it shall have and exercise in the
exclusive economic zone established herein the following:
a. Sovereign rights for the purpose of exploration and exploitation, conser-
vation and management of the natural resources, whether living or non-​
living, both renewable and non-​renewable, of the sea-​bed, including the
subsoil and the superjacent waters, and with regard to other activities for
the economic exploitation and exploration of the resources of the zone,
such as the production of energy from the water, currents and winds;
b. Exclusive rights and jurisdiction with respect to the establishment and
utilization of artificial islands, off-​shore terminals, installations and
structures, the preservation of the marine environment, including the
prevention and control of pollution, and scientific research;
c. Such other rights as are recognized by international law or state practice.
….

41 Pres. Dec. No. 1599 (1978).

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section 4. Other states shall enjoy in the exclusive economic zone free-
doms with respect to navigation and overflight, the laying of submarine cables
and pipelines, and other internationally lawful uses of the sea relating to navi-
gation and communications.

5 An Act to Amend Certain Provisions of Republic Act No. 3046, as

Amended by Republic Act No. 5446, to Define the Archipelagic
Baselines of the Philippines, and for Other Purposes (2009)42
section 1. Section 1 of Republic Act No. 3046, entitled “An Act to Define the
Baselines of the Territorial Sea of the Philippines”, as amended by Section 1 of
Republic Act No. 5446, is hereby amended to read as follows:
“sec. 1. The baselines of the Philippine archipelago are hereby defined and
described specifically as follows:
…
[Coordinates omitted]”
…
section 2. The baseline in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as
“Regime of Islands” under the Republic of the Philippines consistent
with Article 121 of the United Nations Convention on the Law of the Sea
(unclos):
a) The Kalayaan Island Group as constituted under Presidential Decree No.
1596; and
b) Bajo de Masinloc, also known as Scarborough Shoal.
section 3. This Act affirms that the Republic of the Philippines has domin-
ion, sovereignty and jurisdiction over all portions of the national territory
as defined in the Constitution and by provisions of applicable laws includ-
ing, without limitation, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, as amended.
….
section 8. The provisions of Republic Act No. 3046, as amended by
Republic Act No. 5446, and all other laws, decrees, executive orders, rules
and issuances inconsistent with this Act are hereby amended or modified
accordingly.

42 Rep. Act No. 9522 (2009).

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6 Naming the West Sea of the Republic of the Philippines, and for
Other Purposes (2012)43
whereas, Presidential Decree No. 1599 (1978) established the Exclusive
Economic Zone (eez) of the Philippines extending to a distance of two hun-
dred nautical miles from the baselines of the Philippine archipelago;
whereas, Republic Act No. 9522 (2009) , or the Baselines Law, specifically
defined and described the baselines of the Philippine archipelago;
whereas, the Philippines exercises sovereign rights under the principles
of international law, including the 1982 United Nations Convention on the Law
of the Sea (unclos), to explore and exploit, conserve and manage the natural
resources, whether living or non-​living, both renewable and non-​renewable,
of the sea-​bed, including the subsoil and the adjacent waters, and to conduct
other activities for the economic exploitation and exploration of its maritime
domain, such as the production of energy from the water, currents and winds;
whereas, the Philippines exercises sovereign jurisdiction in its eez with
regard to the establishment and use of artificial islands, installations and struc-
tures; marine scientific research; protection and preservation of the marine
environment; and other rights and duties provided for in unclos; and
whereas, in the exercise of sovereign jurisdiction, the Philippines has the
inherent power and right to designate its maritime areas with appropriate
nomenclature for purposes of the national mapping system.
now, therefore, i, benigno s. aquino iii, President of the Philippines,
by virtue of the powers vested in me by the Constitution and by law, do
hereby order:
section 1. The maritime areas on the western side of the Philippine archi-
pelago are hereby named as the West Philippine Sea. These areas include the
Luzon Sea as well as the waters around, within and adjacent to the Kalayaan
Island Group and Bajo De Masinloc, also known as Scarborough Shoal.
section 2. The naming of the West Philippine Sea is without prejudice to
the determination of the maritime domain over territories which the Republic
of the Philippines has sovereignty and jurisdiction. …

7 Changing the Name of “Benham Rise” to “Philippine Rise” and for

Other Purposes (2017)44
…

43 Adm. Order No. 29 (2012).

44 Exec. Order No. 25 (2017).

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whereas, the undersea feature known as the Benham Rise Region, which
has an area approximately 24 million hectares in size, is located within the
Philippine exclusive economic zone and continental shelf, as well as the outer
limits of the continental shelf in accordance with the recommendations of
the Commission on the Limits of the Continental Shelf (clcs) issued on 12
April 2012;
whereas, the Benham Rise Region is subject to the sovereign rights and
jurisdiction of the Philippines pursuant to relevant provisions of the 1987
Philippine Constitution, national legislation, the unclos and applicable
international law;
whereas, in the exercise of its sovereign rights and jurisdiction, the
Philippines has the power to designate its submarine areas with appropriate
nomenclature for purposes of the national mapping system.
now, therefore, i, rodrigo roa duterte, President of the Republic
of the Philippines, by virtue of the powers vested in me by the Constitution
and existing laws, do hereby order:
section 1. Change of Name.—​The undersea feature presently known as
“Benham Rise” in local and international maps and charts, shall henceforth be
referred to as the “Philippine Rise”. …

8 Declaring a Portion of the Philippine Rise Situated within the

Exclusive Economic Zone of the Philippine Sea, North Eastern
Coast of Luzon Island as Marine Resource Reserve Pursuant to
Republic Act No. 7586, or the National Integrated Protected Areas
System Act of 1992, to be Known as the Philippine Rise Marine
Resource Reserve (2018)45
… i, rodrigo roa duterte, President of the Philippines, do hereby set
aside and declare a portion of the Philippine Rise situated within the exclusive
economic zone of the Philippine Sea, north eastern coast of Luzon Island, as
protected area under the category of Resource Reserve as defined under ra No.
7586, to be known as the Philippine Rise Marine Resource Reserve (prmrr),
more specifically described in Map No. pp-​m pa-​p r-​01 within the following
geographic coordinates:
…
[Coordinates omitted]
…
…

45 Pres. Proc. No. 489 (2018).

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The destruction or disturbance of the marine ecosystems, including but

not limited to its mesophotic coral reefs, wildlife, or any other marine life, are
hereby prohibited and shall be punished in accordance with the penalties pre-
scribed under ra No. 7586, ra No. 9147 or the Wildlife Resources Conservation
and Protection Act, ra No. 8550, as amended, and other applicable laws, rules
and regulations.

D Judicial Decisions
1 Netherlands and the United States of America (Island of Las
Palmas Case) (1928)46
The subject of the dispute is the sovereignty over the Island of Palmas (or
Miangas).
…
1. The Treaty of Peace of December 10th, 1898, and the Special Agreement
of January 23rd, 1925, are the only international instruments laid before
the Arbitrator which refer precisely, that is, by mathematical location
or by express and unequivocal mention, to the island in dispute … The
scope of the international treaties which relate to the “Philippines” and
of conventions entered into with native Princes will be considered in
connection with the arguments of the Party relying on a particular act.
2. Before 1906 no dispute had arisen between the United States or Spain, on
the one hand, and the Netherlands, on the other, in regard specifically to
the Island of Palmas (or Miangas), on the ground that these Powers put
forward conflicting claims to sovereignty over the said island.
….
The United States, as successor to the rights of Spain over the Philippines,
bases its title in the first place on discovery. … As, according to the same argu-
ment, nothing has occurred of a nature, in international law, to cause the
acquired title to disappear, this latter title was intact at the moment when, by
the Treaty of December 10th, 1898, Spain ceded the Philippines to the United
States. In these circumstances, it is, in the American view, unnecessary to estab-
lish facts showing the actual display of sovereignty precisely over the Island
of Palmas (or Miangas). The United States Government finally maintains that
Palmas (or Miangas) forms a geographical part of the Philippine group; and
in virtue of the principle of contiguity belongs to the Power having the sover-
eignty over the Philippines.

46 4 April 1928, 2 Rep. Int’l. Arb. Awards 829–​871 (1928).

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According to the Netherlands Government, on the other hand, the fact of

discovery by Spain is not proved, nor yet any other form of acquisition, and
even if Spain had at any moment had a title, such title had been lost. The prin-
ciple of contiguity is contested.
The Netherlands Government’s main argument endeavours to show that the
Netherlands, represented for this purpose in the first period of colonisation by
the East India Company, have possessed and exercised rights of sovereignty
from 1677, or probably from a date prior even to 1648, to the present day. This
sovereignty arose out of conventions entered into with native princes of the
Island of Sangi (the main island of the Talautse (Sangi) Isles), establishing the
suzerainty of the Netherlands over the territories of these princes, including
Palmas (or Miangas). The state of affairs thus set up is claimed to be validated
by international treaties.
…
Before considering the Parties’ arguments, two points of a general character
are to be dealt with, one relating to the substantive law to be applied, namely
the rules on territorial sovereignty which underly the present case, and the
other relating to the rules of procedure, namely the conditions under which
the Parties may, under the Special Agreement, substantiate their claims.
…
In the first place the Arbitrator deems it necessary to make some general
remarks on sovereignty in its relation to territory.
The Arbitrator will as far as possible keep to the terminology employed in
the Special Agreement. The preamble refers to “sovereignty over the Island of
Palmas (or Miangas)”, and under Article i, paragraph 2, the Arbitrator’s task is
to “determine whether the Island of Palmas (or Miangas) in its entirety forms
a part of Netherlands territory or of territory belonging to the United States of
America”. It appears to follow that sovereignty in relation to a portion of the
surface of the globe is the legal condition necessary for the inclusion of such
portion in the territory of any particular State. Sovereignty in relation to terri-
tory is in the present award called “territorial sovereignty”.
Sovereignty in the relations between States signifies independence.
Independence in regard to a portion of the globe is the right to exercise therein,
to the exclusion of any other State, the functions of a State. The development
of the national organisation of States during the last few centuries and, as a
corollary, the development of international law, have established this principle
of the exclusive competence of the State in regard to its own territory in such
a way as to make it the point of departure in settling most questions that con-
cern international relations. ….

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Territorial sovereignty is, in general, a situation recognized and delimited

in space, either by so-​called natural frontiers as recognised by international
law or by outward signs of delimitation that are undisputed, or else by legal
engagements entered into between interested neighbours, such as frontier
conventions, or by acts of recognition of States within fixed boundaries. If a
dispute arises as to the sovereignty over a portion of territory, it is customary
to examine which of the States claiming sovereignty possesses a title—​cession
conquest, occupation, etc.—​superior to that which the other State might pos-
sibly bring forward against it. However, if the contestation is based on the fact
that the other Party has actually displayed sovereignty, it cannot be sufficient
to establish the title by which territorial sovereignty was validly acquired at a
certain moment; it must also be shown that the territorial sovereignty has con-
tinued to exist and did exist at the moment which for the decision of the dis-
pute must be considered as critical. This demonstration consists in the actual
display of State activities, such as belongs only to the territorial sovereign.
Titles of acquisition of territorial sovereignty in present-​day international
law are either based on an act of effective apprehension, such as occupation
or conquest, or, like cession, presuppose that the ceding and the cessionary
Powers or at least one of them, have the faculty of effectively disposing of the
ceded territory. In the same way natural accretion can only be conceived of as
an accretion to a portion of territory where there exists an actual sovereignty
capable of extending to a spot which falls within its sphere of activity. It seems
therefore natural that an element which is essential for the constitution of sov-
ereignty should not be lacking in its continuation. So true is this, that practice,
as well as doctrine, recognizes—​though under different legal formulae and
with certain differences as to the conditions required—​that the continuous
and peaceful display of territorial sovereignty (peaceful in relation to other
States) is as good as a title. The growing insistence with which international
law, ever since the middle of the 18th century demanded that the occupation
shall be effective would be inconceivable, if effectiveness were required only
for the act of acquisition and not equally for the maintenance of the right. If
the effectiveness has above all been insisted on in regard to occupation, this is
because the question rarely arises in connection with territories in which there
is already an established order of things.
Just as before the rise of international law, boundaries of lands were nec-
essarily determined by the fact that the power of a State was exercised within
them, so too, under the reign of international law., the fact of peaceful and
continuous display is still one of the most important considerations in estab-
lishing boundaries between States.

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Territorial sovereignty, as has already been said, involves the exclusive right
to display the activities of a State. This right has as corollary a duty: the obliga-
tion to protect within the territory the rights of other States, in particular their
right to integrity and inviolability in peace and in war, together with the rights
which each State may claim for its nationals in foreign territory. Without man-
ifesting its territorial sovereignty in a manner corresponding to circumstances,
the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to
its negative side, i.e. to excluding the activities of other States; for it serves to
divide between nations the space upon which human activities are employed,
in order to assure them at all points the minimum of protection of which inter-
national law is the guardian.
Although municipal law, thanks to its complete judicial system, is able to
recognize abstract rights of property as existing apart from any material dis-
play of them, it has none the less limited their effect by the principles of pre-
scription and the protection of possession. International law, the structure of
which is not based on any super-​State organisation, cannot be presumed to
reduce a right such as territorial sovereignty, with which almost all interna-
tional relations are bound up, to the category of an abstract right, without con-
crete manifestations.
The principle that continuous and peaceful display of the functions of State
within a given region is a constituent element of territorial sovereignty is not
only based on the conditions of the formation of independent States and their
boundaries (as shown by the experience of political history) as well as on an
international jurisprudence and doctrine widely accepted; this principle has
further been recognized in more than one federal State, where a jurisdiction
is established in order to apply, as need arises, rules of international law to the
interstate relations of the States members. This is the more significant, in that
it might well be conceived that in a federal State possessing a complete judicial
system for interstate matters—​far more than in the domain of international
relations properly so-​called—​there should be applied to territorial questions
the principle that, failing any specific provision of law to the contrary, a jus in
re once lawfully acquired shall prevail over de facto possession however well
established.
It may suffice to quote among several non dissimilar decisions of the
Supreme Court of the United States of America that in the case of the State
of Indiana v. State of Kentucky (136 U.S. 479) 1890, where the precedent of the
case of Rhode Island v. Massachusetts (4 How. 591, 639) is supported by quo-
tations from Vattel and Wheaton, who both admit prescription founded on
length of time as a valid and incontestable title.

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National Territory 97

Manifestations of territorial sovereignty assume, it is true, different forms,

according to conditions of time and place. Although continuous in principle,
sovereignty cannot be exercised in fact at every moment on every point of a
territory. The intermittence and discontinuity compatible with the mainte-
nance of the right necessarily differ according as inhabited or uninhabited
regions are involved, or regions enclosed within territories in which sover-
eignty is incontestably displayed or again regions accessible from, for instance,
the high seas. It is true that neighbouring States may by convention fix limits to
their own sovereignty, even in regions such as the interior of scarcely explored
continents where such sovereignty is scarcely manifested, and in this way each
may prevent the other from any penetration of its territory. The delimitation of
Hinterland may also be mentioned in this connection.
If, however, no conventional line of sufficient topographical precision exists
or if there are gaps in the frontiers otherwise established, or if a conventional
line leaves room for doubt, or if, as e.g. in the case of an island situated in the
high seas, the question arises whether a title is valid erga omnes, the actual
continuous and peaceful display of State functions is in case of dispute the
sound and natural criterium of territorial sovereignty.
….
iii.
The title alleged by the United States of America as constituting the imme-
diate foundation of its claim is that of cession, brought about by the Treaty of
Paris, which cession transferred all rights of sovereignty which Spain may have
possessed in the region indicated in Article iii of the said Treaty and therefore
also those concerning the Island of Palmas (or Miangas).
It is evident that Spain could not transfer more rights than she herself pos-
sessed. This principle of law is expressly recognized in a letter dated April 7th,
1900, from the Secretary of State of the United States to the Spanish Minister at
Washington concerning a divergence of opinion which arose about the ques-
tion whether two islands claimed by Spain as Spanish territory and lying just
outside the limits traced by the Treaty of Paris were to be considered as included
in, or excluded from the cession. This letter, reproduced in the Explanations of
the United States Government, contains the following passage:
The metes and bounds defined in the treaty were not understood by either
party to limit or extend Spain’s right of cession. Were any island within those
described bounds ascertained to belong in fact to Japan. China, Great Britain
or Holland, the United States could derive no valid title from its ostensible
inclusion in the Spanish cession. The compact upon which the United States
negotiators insisted was that all Spanish title to the archipelago known as the
Philippine Islands should pass to the United States—​no less or more than

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98  Chapter 3

Spain’s actual holdings therein, but all. This Government must consequently
hold that the only competent and equitable test of fact by which the title to
a disputed cession in that quarter may be determined is simply this: ‘‘Was it
Spain’s to give? If valid title belonged to Spain, it passed; if Spain had no valid
title, she could convey none.”
Whilst there existed a divergence of views as to the extension of the cession
to certain Spanish islands outside the treaty limits, it would seem that the ces-
sionary Power never envisaged that the cession, in spite of the sweeping terms
of Article iii, should comprise territories on which Spain had not a valid title,
though falling within the limits traced by the Treaty. It is evident that whatever
may be the right construction of a treaty, it cannot be interpreted as disposing
of the rights of independent third Powers.
One observation, however, is to be made. Article iii of the Treaty of Paris,
which is drafted differently from the preceding Article concerning Porto Rico,
is so worded that it seems as though the Philippine Archipelago, within the
limits fixed by that Article, was at the moment of cession under Spanish sover-
eignty. As already stated the Island of Palmas lies within the lines traced by the
Treaty. Article iii may therefore be considered as an affirmation of sovereignty
on the part of Spain as regards the Island of Palmas (or Miangas), and this
right or claim of right would have been ceded to the United States, though the
negotiations of 1898, as far as they are on the record of the present case, do not
disclose that the situation of Palmas had been specifically examined.
It is recognized that the United States communicated, on February 3rd, 1899,
the Treaty of Paris to the Netherlands, and that no reservations were made by
the latter in respect to the delimitation of the Philippines in Article iii. The
question whether the silence of a third Power, in regard to a treaty notified to it.
can exercise any influence on the rights of this Power, or on those of the Powers
signatories of the treaty, is a question the answer to which may depend on the
nature of such rights. Whilst it is conceivable that a conventional delimitation
duly notified to third Powers and left without contestation on their part may
have some bearing on an inchoate title not supported by any actual display of
sovereignty, it would be entirely contrary to the principles laid down above as
to territorial sovereignty to suppose that such sovereignty could be affected by
the mere silence of the territorial sovereign as regards a treaty which has been
notified to him and which seems to dispose of a part of his territory.
The essential point is therefore whether the Island of Palmas (or Miangas)
at the moment of the conclusion and coming into force of the Treaty of Paris
formed a part of the Spanish or Netherlands territory. The United States
declares that Palmas (or Miangas) was Spanish territory and denies the exis-
tence of Dutch sovereignty; the Netherlands maintain the existence of their

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sovereignty and deny that of Spain. Only if the examination of the arguments
of both Parties should lead to the conclusion that the Island of Palmas (or
Miangas) was at the critical moment neither Spanish nor Netherlands terri-
tory, would the question arise whether—​and, if so, how—​the conclusion of
the Treaty of Paris and its notification to the Netherlands might have interfered
with the rights which the Netherlands or the United States of America may
claim over the island in dispute.
…
As pointed out above, the United States bases its claim, as successor of
Spain, in the first place on discovery. In this connection a distinction must be
made between the discovery of the Island of Palmas (or Miangas) as such, or
as a part of the Philippines, which, beyond doubt, were discovered and even
occupied and colonised by the Spaniards. This latter point, however, will be
considered with the argument relating to contiguity; the problem of discovery
is considered only in relation to the island itself which forms the subject of the
dispute.
The documents supplied to the Arbitrator with regard to the discovery of the
island in question consist in the first place of a communication made by the
Spanish Government to the United States Government as to researches in the
archives concerning expeditions and discoveries in the Moluccas, the “Talaos”
Islands, the Palaos Islands and the Marianes. The United States Government,
in its Rejoinder, however states that it does not specifically rely on the papers
mentioned in the Spanish note.
….
The fact that the island was originally called, not, as customarily, by a native
name, but by a name borrowed from a European language, and referring to
the vegetation, serves perhaps to show that no landing was made or that the
island was uninhabited at the time of discovery. Indeed, the reports on record
which concern the discovery of the Island of Palmas state only that an island
was “seen”, which island, according to the geographical data, is probably iden-
tical with that in dispute. No mention is made of landing or of contact with
the natives. And in any case no signs of taking possession or of administration
by Spain have been shown or even alleged to exist until the very recent date to
which the reports of Captain Malone and M. Alvarez, of 1919. contained in the
United States Memorandum, relate.
It is admitted by both sides that international law underwent profound
modifications between the end of the Middle-​Ages and the end of the 19th
century, as regards the rights of discovery and acquisition of uninhabited
regions or regions inhabited by savages or semi-​civilised peoples. Both Parties
are also agreed that a juridical fact must be appreciated in the light of the law

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contemporary with it, and not of the law in force at the time when a dispute
in regard to it arises or falls to be settled. The effect of discovery by Spain is
therefore to be determined by the rules of international law in force in the first
half of the 16th century—​or (to take the earliest date) in the first quarter of it,
i.e. at the time when the Portuguese or Spaniards made their appearance in
the Sea of Celebes.
If the view most favourable to the American arguments is adopted—​with
every reservation as to the soundness of such view—​that is to say, if we con-​
sider as positive law at the period in question the rule that discovery as such,
i.e. the mere fact of seeing land, without any act, even symbolical, of taking
possession, involved ipso jure territorial sovereignty and not merely an “incho-
ate title”, a jus ad rem, to be completed eventually by an actual and durable
taking of possession within a reasonable time, the question arises whether
sovereignty yet existed at the critical date, i.e. the moment of conclusion and
coming into force of the Treaty of Paris.
As regards the question which of different legal systems prevailing at suc-
cessive periods is to be applied in a particular case (the so-​called intertemporal
law), a distinction must be made between the creation of rights and the exis-
tence of rights. The same principle which subjects the act creative of a right to
the law in force at the time the right arises, demands that the existence of the
right, in other words its continued manifestation, shall follow the conditions
required by the evolution of law. International law in the 19th century, having
regard to the fact that most parts of the globe were under the sovereignty of
States members of the community of nations, and that territories without a
master had become relatively few, took account of a tendency already exist-
ing and especially developed since the middle of the 18th century, and laid
down the principle that occupation, to constitute claim to territorial sover-
eignty, must be effective, that is, offer certain guarantees to other States and
their nationals. It seems therefore incompatible with this rule of positive law
that there should be regions which are neither under the effective sovereignty
of a State, nor without a master, but which are reserved for the exclusive influ-
ence of one State, in virtue solely of a title of acquisition which is no longer
recognized by existing law, even if such a title ever conferred territorial sover-
eignty. For these reasons, discovery alone, without any subsequent act, cannot
at the present time suffice to prove sovereignty over the Island of Palmas (or
Miangas); and in so far as there is no sovereignty, the question of an abandon-
ment properly speaking of sovereignty by one State in order that the sover-
eignty of another may take its place does not arise.
If on the other hand the view is adopted that discovery does not create a
definitive title of sovereignty, but only an “inchoate” title, such a title exists, it

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National Territory 101

is true, without external manifestation. However, according to the view that

has prevailed at any rate since the 19th century, an inchoate title of discov-
ery must be completed within a reasonable period by the effective occupation
of the region claimed to be discovered. This principle must be applied in the
present case, for the reasons given above in regard to the rules determining
which of successive legal systems is to be applied (the so-​called intertemporal
law). Now, no act of occupation nor, except as to a recent period, any exercise
of sovereignty at Palmas by Spain has been alleged. But even admitting that
the Spanish title still existed as inchoate in 1898 and must be considered as
included in the cession under Article iii of the Treaty of Paris, an inchoate
title could not prevail over the continuous and peaceful display of authority by
another State; for such display may prevail even over a prior, definitive title put
forward by another State. This point will be considered, when the Netherlands
argument has been examined and the allegations of either Party as to the dis-
play of their authority can be compared.
…
Although the United States Government does not take up the position that
Spanish sovereignty must be recognized because it was actually exercised, the
American Counter-​Case none the less states that “there is at least some evi-
dence of Spanish activities in the island”. In these circumstances it is necessary
to consider whether and to what extent the territorial sovereignty of Spain was
manifested in or in regard to the Island of Palmas or Miangas.) …
…
Among the methods of indirect proof, not of the exercise of sovereignty,
but of its existence in law, submitted by the United States, there is the evi-
dence from maps. This subject has been very completely developed in the
Memorandum of the United States and has also been fully dealt with in the
Netherlands Counter-​Memorandum, as well as in the United States Rejoinder.
A comparison of the information supplied by the two Parties shows that only
with the greatest caution can account be taken of maps in deciding a question
of sovereignty, at any rate in the case of an island such as Palmas (or Miangas).
Any maps which do not precisely indicate the political distribution of terri-
tories, and in particular the Island of Palmas (or Miangas) clearly marked as
such, must be rejected forthwith, unless they contribute—​supposing that they
are accurate—​to the location of geographical names. Moreover, indications of
such a nature are only of value when there is reason to think that the cartog-
rapher has not merely referred to already existing maps—​as seems very often
to be the case—​but that he has based his decision on information carefully
collected for the purpose. Above all, then, official or semi-​official maps seem
capable of fulfilling these conditions, and they would be of special interest in

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cases where they do not assert the sovereignty of the country of which the
Government has caused them to be issued.
If the Arbitrator is satisfied as to the existence of legally relevant facts which
contradict the statements of cartographers whose sources of information are
not known, he can attach no weight to the maps, however numerous and gen-
erally appreciated they may be.
The first condition required of maps that are to serve as evidence on points
of law is their geographical accuracy. It must here be pointed out that not only
maps of ancient date, but also modern, even official or semi-​official maps seem
wanting in accuracy. …
…
In the last place there remains to be considered title arising out of conti-
guity. Although States have in certain circumstances maintained that islands
relatively close to their shores belonged to them in virtue of their geographical
situation, it is impossible to show the existence of a rule of positive interna-
tional law to the effect that islands situated outside territorial waters should
belong to a State from the mere fact that its territory forms the terra firma
(nearest continent or island of considerable size). Not only would it seem that
there are no precedents sufficiently frequent and sufficiently precise in their
bearing to establish such a rule of international law. but the alleged principle
itself is by its very nature so uncertain and con-​tested that even Governments
of the same State have on different occasions maintained contradictory opin-
ions as to its soundness. The principle of contiguity, in regard to islands, may
not be out of place when it is a question of allotting them to one State rather
than another, either by agreement between the Parties, or by a decision not
necessarily based on law; but as a rule establishing ipso jure the presumption
of sovereignty in favour of a particular State, this principle would be in conflict
with what has been said as to territorial sovereignty and as to the necessary
relation between the right to exclude other States from a region and the duty
to display therein the activities of a State. Nor is this principle of contiguity
admissible as a legal method of deciding questions of territorial sovereignty;
for it is wholly lacking in precision and would in its application lead to arbi-
trary results. This would be especially true in a case such as that of the island in
question, which is not relatively close to one single continent, but forms part
of a large archipelago in which strict delimitations between the different parts
are not naturally obvious.
There lies, however, at the root of the idea of contiguity one point which
must be considered also in regard to the Island of Palmas (or Miangas). It
has been explained above that in the exercise of territorial sovereignty there
are necessarily gaps, intermittence in time and discontinuity in space. This

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phenomenon will be particularly noticeable in the case of colonial territories,

partly uninhabited or as yet partly unsubdued. The fact that a State cannot
prove display of sovereignty as regards such a portion of territory cannot forth-
with be interpreted as showing that sovereignty is in-​existent. Each case must
be appreciated in accordance with the particular circumstances.
….
As regards the territory forming the subject of the present dispute, it must
be remembered that it is a somewhat isolated island, and therefore a terri-
tory clearly delimited and individualised. It is moreover an island permanently
inhabited, occupied by a population sufficiently numerous for it to be impos-
sible that acts of administration could be lacking for very long periods. The
memoranda of both Parties assert that there is communication by boat and
even with native craft between the Island of Palmas (or Miangas) and neigh-
bouring regions. The inability in such a case to indicate any acts of public
administration makes it difficult to imagine the actual display of sovereignty,
even if the sovereignty be regarded as confined within such narrow limits as
would be supposed for a small island inhabited exclusively by natives.
iv.
…
… The questions to be solved in, the present case are the following:
Was the island of Palmas (or Miangas) in 1898 a part of territory under Nether-​
lands’ sovereignty?
Did this sovereignty actually exist in 1898 in regard to Palmas {or Miangas)
and are the facts proved which were; alleged on this subject?
If the claim to sovereignty is based on the continuous and peaceful display
of State authority, the fact of such display must be shown precisely in rela-
tion to the disputed territory. It is not necessary that there should be a special
administration established in this territory; but it cannot suffice for the terri-
tory to be attached to another by a legal relation which is not recognized in
international law as valid against a State contesting this claim to sovereignty;
what is essential in such a case is the continuous and peaceful display of actual
power in the contested region.
…
Before beginning to consider the facts alleged by the Netherlands in support
of their arguments, there are two preliminary points, in regard to which the
Parties also put forward different views, which require elucidation. These relate
to questions raised by the United States: firstly the power of the East India
Company to act validly under international law. On behalf of the Netherlands,
in particular by concluding so-​called political contracts with native rulers; sec-
ondly the identity or non-​identity of the island in dispute with the island to

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which the allegations of the Netherlands as to display of sovereignty would

seem to relate.
The acts of the East India Company … in view of occupying or colonizing
the regions at issue in the present affair must, in international law, be entirely
assimilated to acts of the Netherlands State itself. From the end of the 16th
till the 19th century, companies formed by individuals and engaged in eco-
nomic pursuits (Chartered Companies), were invested by the State to whom
they were subject with public powers for the acquisition and administration
of colonies. … It is a question for decision in each individual case whether a
contract concluded by the Company falls within the range of simple economic
transactions or is of a political and public administrative nature.
….
As regards contracts between a State or a Company such as the Dutch East
India Company and native princes or chiefs of peoples not recognized as mem-
bers of the community of nations, they are not, in the international law sense,
treaties or conventions capable of creating rights and obligations such as may.
in international law. arise out of treaties. But, on the other hand, contracts
of this nature are not wholly void of indirect effects on situations governed
by international law; if they do not constitute titles in international law, they
are nonetheless facts of which that law must in certain circumstances take
account. From the time of the discoveries until recent times, colonial terri-
tory has very often been acquired, especially in the East Indies, by means of
contracts with the native authorities, which contracts leave the existing organ-
isation more or less intact as regards the native population, whilst granting
to the colonizing Power, besides economic advantages such as monopolies or
navigation and commercial privileges, also the exclusive direction of relations
with other Powers, and the right to exercise public authority in regard to their
own nationals and to foreigners. The form of the legal relations created by such
contracts is most generally that of suzerain and vassal, or of the so-​called colo-
nial protectorate.
In substance, it is not an agreement between equals; it is rather a form of
internal organisation of a colonial territory, on the basis of autonomy for the
natives. In order to regularise the situation as regards other States, this organi-
sation requires to be completed by the establishment of powers to ensure the
fulfilment of the obligations imposed by international law on every State in
regard to its own territory. And thus suzerainty over the native State becomes
the basis of territorial sovereignly as towards other members of the com-
munity of nations. It is the sum-​total of functions thus allotted either to the
native authorities or to those of the colonial Power which decides the ques-
tion whether at any certain period the conditions required for the existence

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of sovereignty are fulfilled. It is a question to be decided in each case whether

such a regime is to be considered as effective or whether it is essentially fic-
titious, either for the whole or a part of the territory. There always remains
reserved the question whether the establishment of such a system is not for-
bidden by the pre-​existing rights of other States.
….
This system of contracts between colonial Powers and native princes and
chiefs is even expressly approved by Article v of the Treaty of Munster quoted
above; for, among the “Potentates, Nations and Peoples”, with whom the Dutch
State or Companies may have concluded treaties of alliance and friendship in
the East and West Indies, are necessarily the native princes and chiefs.
The Arbitrator can therefore not exclude the contracts invoked by the
Netherlands from being taken into consideration in the present case.
…
Considering that the contracts of 1676 and 1697 with Tabukan established
in favour of the Dutch East India Company extensive rights of suzerainty over
Tabukan and an exclusive right of intercourse with that State, and considering
further that at least two characteristic acts of jurisdiction expressly relating
to Miangas. in 1701 and 1726, are reported, whilst no display of sovereignty by
any other Power during the same period is known, it may be admitted that at
least in the first quarter of the 18th century and probably also before that time,
the Dutch East India Company exercised rights of suzerainty over Palmas (or
Miangas) and that therefore the island was at that time, in conformity with the
international law of the period, under Netherlands sovereignty.
….
v.
The conclusions to be derived from the above examination of the argu-
ments of the Parties are the following:
The claim of the United States to sovereignty over the Island of Palmas (or
Miangas) is derived from Spain by way of cession under the Treaty of Paris. The
latter Treaty, though it comprises the island in dispute within the limits of ces-
sion, and in spite of the absence of any reserves or protest by the Netherlands
as to these limits, has not created in favour of the United States any title of sov-
ereignty such as was not already vested in Spain. The essential point is there-
fore to decide whether Spain had sovereignty over Palmas (or Miangas) at the
time of the coming into force of the Treaty of Paris.
The United States base their claim on the titles of discovery, of recognition
by treaty and of contiguity, i.e. titles relating to acts or circumstances leading to
the acquisition of sovereignty; they have however not established the fact that
sovereignty so acquired was effectively displayed at any time.

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The Netherlands on the contrary found their claim to sovereignty essen-

tially on the title of peaceful and continuous display of State authority over the
island. Since this title would in international law prevail over a tide of acquisi-
tion of sovereignty not followed by actual display of State authority, it is neces-
sary to ascertain in the first place, whether the contention of the Netherlands
is sufficiently established by evidence, and, if so, for what period of time.
In the opinion of the Arbitrator the Netherlands have succeeded in estab-
lishing the following facts:
a. The Island of Palmas (or Miangas) is identical with an island designated
by this or a similar name, which has formed, at least since 1700, succes-
sively a part of two of the native States of the Island of Sangi (Talautse
Isles).
b. These native States were from 1677 onwards connected with the East
India Company, and thereby with the Netherlands, by contracts of suzer-
ainty, which conferred upon the suzerain such powers as would justify
his considering the vassal State as a part of his territory.
c. Acts characteristic of State authority exercised either by the vassal State
or by the suzerain Power in regard precisely to the Island of Palmas (or
Miangas) have been established as occurring at different epochs between
1700 and 1898, as well as in the period between 1898 and 1906.
The acts of indirect or direct display of Netherlands sovereignty at Palmas (or
Miangas), especially in the 18th and early 19th centuries are not numerous, and
there are considerable gaps in the evidence of continuous display. But apart
from the consideration that the manifestations of sovereignty over a small and
distant island, inhabited only by natives, cannot be expected to be frequent,
it is not necessary that the display of sovereignty should go back to a very far
distant period. It may suffice that such display existed in 1898, and had already
existed as continuous and peaceful before that date long enough to enable any
Power who might have considered herself as possessing sovereignty over the
island, or having a claim to sovereignty, to have, according to local conditions,
a reasonable possibility for ascertaining the existence of a state of things con-
trary to her real or alleged rights.
It is not necessary that the display of sovereignty should be established as
having begun at a precise epoch; it suffices that it had existed at the critical
period preceding the year 1898. It is quite natural that the establishment of
sovereignty may be the outcome of a slow evolution, of a progressive intensi-
fication of State control. This is particularly the case, if sovereignty is acquired
by the establishment of the suzerainty of a colonial Power over a native State,
and in regard to outlying possessions of such a vassal State.

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Now the evidence relating to the period after the middle of the 19th century
makes it clear that the Netherlands Indian Governmentconsidered the island
distinctly as a part of its possessions and that, in the years immediately preced-
ing 1898, an intensification of display of sovereignty took place.
Since the moment when the Spaniards, in withdrawing from the Moluccas
in 1666, made express reservations as to the maintenance of their sovereign
rights, up to the contestation made by the United States in 1906,no contesta-
tion or other action whatever or protest against the exercise of terriorial rights
by the Netherlands over the Talautse (Sangi) Isles and their dependencies
(Miangas included) has been recorded. The peaceful character of the display
of Netherlands sovereignty for the entire period to which the evidence con-
cerning acts of display relates (1700–​1906) must be admitted.
There is moreover no evidence which would establish any act of display of
sovereignty over the island by Spain or another Power, such as might counter-​
balance or annihilate the manifestations of Netherlands sovereignty. As to
third Powers, the evidence submitted to the Tribunal does not disclose any
trace of such action, at least from the middle of the 17th century onwards.
These circumstances, together with the absence of any evidence of a conflict
between Spanish and Netherlands authorities during more than two centuries
as regards Palmas (or Miangas), are an indirect proof of the exclusive display
of Netherlands sovereignty.
This being so, it remains to be considered first whether the display of State
authority might not be legally defective and therefore unable to create a valid
title of sovereignty, and secondly whether the United States may not put for-
ward a better title to that of the Netherlands.
As to the conditions of acquisition of sovereignty by way of continuous and
peaceful display of State authority (so-​called prescription), some of which
have been discussed in the United States Counter-​Memorandum, the follow-
ing must be said:
The display has been open and public, that is to say that it was in conformity
with usages as to exercise of sovereignty over colonial States. A clandestine
exercise of State authority over an inhabited territory during a considerable
length of time would seem to be impossible. An obligation for the Netherlands
to notify to other Powers the establishment of suzerainty over the Sangi States
or of the display of sovereignty in these territories did not exist.
Such notification, like any other formal act, can only be the condition of
legality as a consequence of an explicit rule of law. A rule of this kind adopted
by the Powers in 1885 for the African continent does not apply de plano to other
regions, and thus the contract with Taruna of 1885,or with Kandahar-​Taruna of

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1889, even if they were to be considered as the first assertions of sovereignty

over Palmas (or Miangas) would not be subject to the rule of notification.
There can further be no doubt that the Netherlands exercised the State
authority over the Sangi States as sovereign in their own right, not under a
derived or precarious title.
Finally it is to be observed that the question whether the establishment of
the Dutch on the Talautse Isles (Sangi) in 1677 was a violation of the Treaty of
Münster and whether this circumstance might have prevented the acquisition
of sovereignty even by means of prolonged exercise of State authority, need not
be examined, since the Treaty of Utrecht recognized the state of things existing
in 1714 and therefore the suzerain right of the Netherlands over Tabukan and
Miangas.
The conditions of acquisition of sovereignty by the Netherlands are there-
fore to be considered as fulfilled. It remains now to be seen whether the United
States as successors of Spain are in a position to bring forward an equivalent or
stronger title. This is to be answered in the negative.
The title of discovery, if it had not been already disposed of by the Treaties
of Münster and Utrecht would, under the most favourable and most exten-
sive interpretation, exist only as an inchoate title, as a claim to establish sover-
eignty by effective occupation. An inchoate title however cannot prevail over a
definite title founded on continuous and peaceful display of sovereignty.
The title of contiguity, understood as a basis of territorial sovereignty, has no
foundation in international law.
The title of recognition by treaty does not apply, because even if the Sangi
States, with the dependency of Miangas, are to be considered as “held and
possessed” by Spain in 1648, the rights of Spain to be derived from the Treaty
of Munster would have been superseded by those which were acquired by
the Treaty of Utrecht. Now if there is evidence of a state of possession in 1714
concerning the island of Palmas (or Miangas), such evidence is exclusively in
favour of the Netherlands. But even if the Treaty of Utrecht could not be taken
into consideration, the acquiescence of Spain in the situation created after
1677 would deprive her and her successors of the possibility of still invoking
conventional rights at the present time.
The Netherlands tide of sovereignty, acquired by continuous and peaceful
display of State authority during a long period of time going probably back
beyond the year 1700, therefore holds good.
….

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For the reasons given above, no presumption in favour of Spanish sover-

eignty can be based in international law on the titles invoked by the United
States as successors of Spain. Therefore, there would not be sufficient grounds
for deciding the case in favour of the United States, even if it were admit-
ted, in accordance with their submission, that the evidence produced by the
Netherlands in support of their claim either does not relate to the Island in
dispute or does not suffice to establish a continuous display of State authority
over the island. For, in any case, the exercise of some acts of State authority
and the existence of external signs of sovereignty, e.g. flags and coat of arms,
has been proved by the Netherlands, even if the Arbitrator were to retain only
such evidence as can, in view of the trust-​worthy and sufficiently accurate
nautical observations given to support it, concern solely the island of Palmas
(or Miangas), namely that relating to the visits of the steamer Raaf in 1895, of
h.m.s. Edi in 1898 and of General Wood in 1906.
These facts at least constitute a beginning of establishment of sovereignty
by continuous and peaceful display of State authority, or a commencement of
occupation of an island not yet forming a part of the territory of a State; and
such a state of things would create in favour of the Netherlands an inchoate
title for completing the conditions of sovereignty. Such inchoate title, based
on display of State authority, would, in the opinion of the Arbitrator, prevail
over an inchoate title derived from discovery, especially if this latter title has
been left for a very long time without completion by occupation; and it would
equally prevail over any claim which, in equity, might be deduced from the
notion of contiguity. International law, like law in general, has the object of
assuring the coexistence of different interests which are worthy of legal pro-
tection. If, as in the present instance, only one of two conflicting interests is
to prevail, because sovereignty can be attributed to but one of the Parties, the
interest which involves the maintenance of a state of things having offered at
the critical time to the inhabitants of the disputed territory and to other States
a certain guarantee for the respect of their rights ought, in doubt, to prevail
over an interest which—​supposing it to be recognized in international law—​
has not yet received any concrete form of development.
Supposing that, at the time of the coming into force of the Treaty of Paris,
the Island of Palmas (or Miangas) did not form part of the territory of any State,
Spain would have been able to cede only the rights which she might possibly
derive from discovery or contiguity. On the other hand, the inchoate title of
the Netherlands could not have been modified by a treaty concluded between
third Powers; and such a treaty could not have impressed the character of

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illegality on any act undertaken by the Netherlands with a view to completing

their inchoate title—​at least as long as no dispute on the matter had arisen,
i.e. until 1906.
….
This same conclusion must impose itself with still greater force if there be
taken into consideration—​as the Arbitrator considers should be done—​all
the evidence which tends to show that there were unchallenged acts of peace-
ful display of Netherlands sovereignty in the period from 1700 to 1906, and
which—​as has been stated above—​may be regarded as sufficiently proving
the existence of Netherlands sovereignty.
For these reasons the Arbitrator, in conformity with Article i of the Special
Agreement of January 23rd, 1925, decides that: The Island of Palmas (or
Miangas) forms in its entirety a part of Netherlands territory.

2 Magallona v. Ermita (2011)47

…
In March 2009, Congress amended [the old Baselines Law following
the Convention on the Territorial Sea and the Contiguous Zone in 1958 or
unclos i] by enacting r.a. 9522 [the new Baselines Law], the statute now
under scrutiny. The change was prompted by the need to make ra 3046
compliant with the terms of the United Nations Convention on the Law of
the Sea (unclos iii), which the Philippines ratified on 27 February 1984.
[Accordingly,] ra 9522 shortened one baseline, optimized the location of
some basepoints around the Philippine archipelago and classified adjacent
territories, namely, the Kalayaan Island Group (kig) and the Scarborough
Shoal, as “regimes of islands” whose islands generate their own applicable
maritime zones.
Petitioners … assail the constitutionality of ra 9522 on two principal
grounds, namely: (1) ra 9522 reduces Philippine maritime territory, and
logically, the reach of the Philippine state’s sovereign power, in violation of
Article 1 of the 1987 Constitution, embodying the terms of the Treaty of Paris
and ancillary treaties, and (2) ra 9522 opens the country’s waters landward
of the baselines to maritime passage by all vessels and aircrafts, undermin-
ing Philippine sovereignty and national security, contravening the country’s
nuclear-​free policy, and damaging marine resources, in violation of relevant
constitutional provisions.
…

47 g.r. No. 187167, 16 August 2011.

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National Territory 111

ra 9522 Is a Statutory Tool to Demarcate the Country’s Maritime

Zones and Continental Shelf Under unclos iii, Not to Delineate
Philippine Territory
Petitioners submit that ra 9522 “dismembers a large portion of the national
territory” because it discards the pre-​u nclos iii demarcation of Philippine
territory under the Treaty of Paris and related treaties, successively encoded in
the definition of national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign control over waters,
beyond the territorial sea recognized at the time of the Treaty of Paris, that
Spain supposedly ceded to the United States. Petitioners argue that from the
Treaty of Paris’ technical description, Philippine sovereignty over territorial
waters extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris.
Petitioners’ theory fails to persuade us.
unclos iii has nothing to do with the acquisition (or loss) of territory. It
is a multilateral treaty regulating, among others, sea-​use rights over maritime
zones (i.e., the territorial waters [12 nautical miles from the baselines], contigu-
ous zone [24 nautical miles from the baselines], exclusive economic zone [200
nautical miles from the baselines]), and continental shelves that unclos iii
delimits. unclos iii was the culmination of decades-​long negotiations among
United Nations members to codify norms regulating the conduct of States in
the world’s oceans and submarine areas, recognizing coastal and archipelagic
States’ graduated authority over a limited span of waters and submarine lands
along their coasts.
On the other hand, baselines laws such as ra 9522 are enacted by unclos
iii States parties to mark-​out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic start-
ing points to measure the breadth of the maritime zones and continental
shelf. …
Thus, baselines laws are nothing but statutory mechanisms for unclos iii
States parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within
which States parties exercise treaty-​based rights, namely, the exercise of sov-
ereignty over territorial waters (Article 2), the jurisdiction to enforce customs,
fiscal, immigration, and sanitation laws in the contiguous zone (Article 33),
and the right to exploit the living and non-​living resources in the exclusive
economic zone (Article 56) and continental shelf (Article 77).

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Even under petitioners’ theory that the Philippine territory embraces the
islands and all the waters within the rectangular area delimited in the Treaty
of Paris, the baselines of the Philippines would still have to be drawn in accor-
dance with ra 9522 because this is the only way to draw the baselines in con-
formity with unclos iii. The baselines cannot be drawn from the boundaries
or other portions of the rectangular area delineated in the Treaty of Paris, but
from the “outermost islands and drying reefs of the archipelago.”
unclos iii and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by executing multilateral
treaties on the regulations of sea-​use rights or enacting statutes to comply with
the treaty’s terms to delimit maritime zones and continental shelves. Territorial
claims to land features are outside unclos iii, and are instead governed by
the rules on general international law.
….

unclos iii and ra 9522 not Incompatible with the Constitution’s

Delineation of Internal Waters
As their final argument against the validity of ra 9522, petitioners contend
that the law unconstitutionally “converts” internal waters into archipelagic
waters, hence subjecting these waters to the right of innocent and sea lanes
passage under unclos iii, including overflight. Petitioners extrapolate that
these passage rights indubitably expose Philippine internal waters to nuclear
and maritime pollution hazards, in violation of the Constitution.
Whether referred to as Philippine “internal waters” under Article i of the
Constitution or as “archipelagic waters” under unclos iii (Article 49 [1]‌), the
Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath.
unclos iii affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archi-
pelagic waters and of their bed and subsoil.—​
1. The sovereignty of an archipelagic State extends to the waters enclosed
by the archipelagic baselines drawn in accordance with article 47,
described as archipelagic waters, regardless of their depth or dis-
tance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters,
as well as to their bed and subsoil, and the resources contained therein.

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….
The regime of archipelagic sea lanes passage established in this Part
shall not in other respects affect the status of the archipelagic waters,
including the sea lanes, or the exercise by the archipelagic State of its
sovereignty over such waters and their air space, bed and subsoil, and the
resources contained therein. [Emphasis added]

The fact of sovereignty, however, does not preclude the operation of munici-
pal and international law norms subjecting the territorial sea or archipelagic
waters to necessary, if not marginal, burdens in the interest of maintaining
unimpeded, expeditious international navigation, consistent with the interna-
tional law principle of freedom of navigation. Thus, domestically, the political
branches of the Philippine government, in the competent discharge of their
constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage. Indeed, bills
drawing nautical highways for sea lanes passage are now pending in Congress.
In the absence of municipal legislation, international law norms, now codi-
fied in unclos iii, operate to grant innocent passage rights over the territorial
sea or archipelagic waters, subject to the treaty’s limitations and conditions
for their exercise. Significantly, the right of innocent passage is a customary
international law, thus automatically incorporated in the corpus of Philippine
law. No modern State can validly invoke its sovereignty to absolutely forbid
innocent passage that is exercised in accordance with customary international
law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject
to both the right of innocent passage and sea lanes passage does not place
them in lesser footing vis-​à-​vis continental coastal States which are subject,
in their territorial sea, to the right of innocent passage and the right of transit
passage through international straits. The imposition of these passage rights
through archipelagic waters under unclos iii was a concession by archipe-
lagic States, in exchange for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from the coast, as archipelagic
waters subject to their territorial sovereignty. More importantly, the recogni-
tion of archipelagic States’ archipelago and the waters enclosed by their base-
lines as one cohesive entity prevents the treatment of their islands as sepa-
rate islands under unclos iii. Separate islands generate their own maritime
zones, placing the waters between islands separated by more than 24 nautical
miles beyond the States’ territorial sovereignty, subjecting these waters to the
rights of other States under unclos iii.

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3 The Republic of the Philippines v. The People’s Republic of China

(South China Sea Arbitration) (2016) 48
1 Background to the Arbitration
The South China Sea Arbitration between the Philippines and China con-
cerned an application by the Philippines for rulings in respect of four matters
concerning the relationship between the Philippines and China in the South
China Sea. First, the Philippines sought a ruling on the source of the Parties’
rights and obligations in the South China Sea and the effect of the United
Nations Convention on the Law of the Sea (“Convention”) on China’s claims
to historic rights within its so-​called ‘nine-​dash line’. Second, the Philippines
sought a ruling on whether certain maritime features claimed by both China
and the Philippines are properly characterized as islands, rocks, low-​tide eleva-
tions or submerged banks under the Convention. The status of these features
under the Convention determines the maritime zones they are capable of
generating. Third, the Philippines sought rulings on whether certain Chinese
actions in the South China Sea have violated the Convention, by interfering
with the exercise of the Philippines’ sovereign rights and freedoms under the
Convention or through construction and fishing activities that have harmed
the marine environment. Finally, the Philippines sought a ruling that certain
actions taken by China, in particular its large-​scale land reclamation and con-
struction of artificial islands in the Spratly Islands since this arbitration was
commenced, have unlawfully aggravated and extended the Parties’ dispute.
The Chinese Government has adhered to the position of neither accept-
ing nor participating in these arbitral proceedings. It has reiterated this posi-
tion in diplomatic notes, in the “Position Paper of the Government of the
People’s Republic of China on the Matter of Jurisdiction in the South China
Sea Arbitration Initiated by the Republic of the Philippines” dated 7 December
2014 (“China’s Position Paper”), in letters to members of the Tribunal from the
Chinese Ambassador to the Kingdom of the Netherlands, and in many pub-
lic statements. The Chinese Government has also made clear that these state-
ments and documents “shall by no means be interpreted as China’s participa-
tion in the arbitral proceeding in any form.”
Two provisions of the Convention address the situation of a party that
objects to the jurisdiction of a tribunal and declines to participate in the
proceedings:

48 pca Case No 2013–​19, 12 July 2016. See Permanent Court of Arbitration, Press Release on
the South China Sea Arbitration, available at: https://​docs.pca-​cpa.org/​2016/​07/​PH-​CN-​
20160712-​Press-​Release-​No-​11-​English.pdf.

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(a) Article 288 of the Convention provides that: “In the event of a dis-
pute as to whether a court or tribunal has jurisdiction, the matter
shall be settled by decision of that court or tribunal.”
(b) Article 9 of Annex vii to the Convention provides that:

If one of the parties to the dispute does not appear before the arbi-
tral tribunal or fails to defend its case, the other party may request
the tribunal to continue the proceedings and to make its award.
Absence of a party or failure of a party to defend its case shall not
constitute a bar to the proceedings. Before making its award, the
arbitral tribunal must satisfy itself not only that it has jurisdiction
over the dispute but also that the claim is well founded in fact
and law.

Throughout these proceedings, the Tribunal has taken a number of steps to

fulfil its duty to satisfy itself as to whether it has jurisdiction and whether the
Philippines’ claims are “well founded in fact and law”. With respect to juris-
diction, the Tribunal decided to treat China’s informal communications as
equivalent to an objection to jurisdiction, convened a Hearing on Jurisdiction
and Admissibility on 7 to 13 July 2015, questioned the Philippines both before
and during the hearing on matters of jurisdiction, including potential issues
not raised in China’s informal communications, and issued an Award on
Jurisdiction and Admissibility on 29 October 2015 (the “Award on Jurisdiction”),
deciding some issues of jurisdiction and deferring others for further consider-
ation in conjunction with the merits of the Philippines’ claims. With respect to
the merits, the Tribunal sought to test the accuracy of the Philippines’ claims
by requesting further written submissions from the Philippines, by conven-
ing a hearing on the merits from 24 to 30 November 2015, by questioning the
Philippines both before and during the hearing with respect to its claims, by
appointing independent experts to report to the Tribunal on technical matters,
and by obtaining historical records and hydrographic survey data for the South
China Sea from the archives of the United Kingdom Hydrographic Office, the
National Library of France, and the French National Overseas Archives and
providing it to the Parties for comment, along with other relevant materials in
the public domain.

2 The Parties’ Positions

The Philippines made 15 Submissions in these proceedings, requesting the
Tribunal to find that:

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(1) China’s maritime entitlements in the South China Sea, like those of
the Philippines, may not extend beyond those expressly permitted
by the United Nations Convention on the Law of the Sea;
(2) China’s claims to sovereign rights jurisdiction, and to “historic
rights”, with respect to the maritime areas of the South China Sea
encompassed by the so-​called “nine-​dash line” are contrary to
the Convention and without lawful effect to the extent that they
exceed the geographic and substantive limits of China’s maritime
entitlements expressly permitted by unclos;
(3) Scarborough Shoal generates no entitlement to an exclusive eco-
nomic zone or continental shelf;
(4) Mischief Reef, Second Thomas Shoal, and Subi Reef are low-​tide
elevations that do not generate entitlement to a territorial sea,
exclusive economic zone or continental shelf, and are not features
that are capable of appropriation by occupation or otherwise;
(5) Mischief Reef and Second Thomas Shoal are part of the exclusive
economic zone and continental shelf of the Philippines;
(6) Gaven Reef and McKennan Reef (including Hughes Reef) are low-​
tide elevations that do not generate entitlement to a territorial
sea, exclusive economic zone or continental shelf, but their low-​
water line may be used to determine the baseline from which the
breadth of the territorial sea of Namyit and Sin Cowe, respectively,
is measured;
(7) Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no
entitlement to an exclusive economic zone or continental shelf;
(8) China has unlawfully interfered with the enjoyment and exercise
of the sovereign rights of the Philippines with respect to the living
and non-​living resources of its exclusive economic zone and conti-
nental shelf;
(9) China has unlawfully failed to prevent its nationals and vessels
from exploiting the living resources in the exclusive economic
zone of the Philippines;
(10) China has unlawfully prevented Philippine fishermen from pursu-
ing their livelihoods by interfering with traditional fishing activi-
ties at Scarborough Shoal;
(11) China has violated its obligations under the Convention to pro-
tect and preserve the marine environment at Scarborough Shoal,
Second Thomas Shoal, Cuarteron Reef, Fiery Cross Reef, Gaven
Reef, Johnson Reef, Hughes Reef and Subi Reef;
(12) China’s occupation of and construction activities on Mischief Reef

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(a) violate the provisions of the Convention concerning artificial

islands, installations and structures;
(b) violate China’s duties to protect and preserve the marine
environment under the Convention; and
(c) constitute unlawful acts of attempted appropriation in viola-
tion of the Convention;
(13) China has breached its obligations under the Convention by oper-
ating its law enforcement vessels in a dangerous manner, causing
serious risk of collision to Philippine vessels navigating in the vicin-
ity of Scarborough Shoal;
(14) Since the commencement of this arbitration in January 2013, China
has unlawfully aggravated and extended the dispute by, among
other things:
(a) interfering with the Philippines’ rights of navigation in the
waters at, and adjacent to, Second Thomas Shoal;
(b) preventing the rotation and resupply of Philippine personnel
stationed at Second Thomas Shoal;
(c) endangering the health and well-​being of Philippine person-
nel stationed at Second Thomas Shoal; and
(d) conducting dredging, artificial island-​ building and con-
struction activities at Mischief Reef, Cuarteron Reef, Fiery
Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi
Reef; and
(15) China shall respect the rights and freedoms of the Philippines
under the Convention, shall comply with its duties under the
Convention, including those relevant to the protection and pres-
ervation of the marine environment in the South China Sea, and
shall exercise its rights and freedoms in the South China Sea with
due regard to those of the Philippines under the Convention.

With respect to jurisdiction, the Philippines has asked the Tribunal to declare
that the Philippines’ claims “are entirely within its jurisdiction and are fully
admissible.”
China does not accept and is not participating in this arbitration but stated
its position that the Tribunal “does not have jurisdiction over this case.” In its
Position Paper, China advanced the following arguments:
–​ The essence of the subject-​matter of the arbitration is the territorial sov-
ereignty over several maritime features in the South China Sea, which is
beyond the scope of the Convention and does not concern the interpre-
tation or application of the Convention;

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–​ China and the Philippines have agreed, through bilateral instruments

and the Declaration on the Conduct of Parties in the South China Sea, to
settle their relevant disputes through negotiations. By unilaterally initi-
ating the present arbitration, the Philippines has breached its obligation
under international law;
–​ Even assuming, arguendo, that the subject-​matter of the arbitration were
concerned with the interpretation or application of the Convention, that
subject-​matter would constitute an integral part of maritime delimi-
tation between the two countries, thus falling within the scope of the
declaration filed by China in 2006 in accordance with the Convention,
which excludes, inter alia, disputes concerning maritime delimitation
from compulsory arbitration and other compulsory dispute settlement
procedures;
Although China has not made equivalent public statements with respect to
the merits of the majority of the Philippines’ claims, the Tribunal has sought
throughout the proceedings to ascertain China’s position on the basis of its
contemporaneous public statements and diplomatic correspondence.

3 The Tribunal’s Decisions on the Scope of Its Jurisdiction

The Tribunal has addressed the scope of its jurisdiction to consider the
Philippines’ claims both in its Award on Jurisdiction, to the extent that issues
of jurisdiction could be decided as a preliminary matter, and in its Award of
12 July 2016, to the extent that issues of jurisdiction were intertwined with
the merits of the Philippines’ claims. The Tribunal’s Award of 12 July 2016 also
incorporates and reaffirms the decisions on jurisdiction taken in the Award on
Jurisdiction.
For completeness, the Tribunal’s decisions on jurisdiction in both awards
are summarized here together.

a Preliminary Matters
In its Award on Jurisdiction, the Tribunal considered a number of prelimi-
nary matters with respect to its jurisdiction. The Tribunal noted that both the
Philippines and China are parties to the Convention and that the Convention
does not permit a State to except itself generally from the mechanism for the
resolution of disputes set out in the Convention. The Tribunal held that China’s
non-​participation does not deprive the Tribunal of jurisdiction and that the
Tribunal had been properly constituted pursuant to the provisions of Annex
vii to the Convention, which include a procedure to form a tribunal even in
the absence of one party. Finally, the Tribunal rejected an argument set out in

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China’s Position Paper and held that the mere act of unilaterally initiating an
arbitration cannot constitute an abuse of the Convention.

b Existence of a Dispute Concerning Interpretation and Application of

the Convention
In its Award on Jurisdiction, the Tribunal considered whether the Parties’ dis-
putes concerned the interpretation or application of the Convention, which
is a requirement for resort to the dispute settlement mechanisms of the
Convention.
The Tribunal rejected the argument set out in China’s Position Paper that
the Parties’ dispute is actually about territorial sovereignty and therefore not
a matter concerning the Convention. The Tribunal accepted that there is a
dispute between the Parties concerning sovereignty over islands in the South
China Sea, but held that the matters submitted to arbitration by the Philippines
do not concern sovereignty. The Tribunal considered that it would not need to
implicitly decide sovereignty to address the Philippines’ Submissions and that
doing so would not advance the sovereignty claims of either Party to islands in
the South China Sea.
The Tribunal also rejected the argument set out in China’s Position Paper
that the Parties’ dispute is actually about maritime boundary delimitation and
therefore excluded from dispute settlement by Article 298 of the Convention
and a declaration that China made on 25 August 2006 pursuant to that Article.
The Tribunal noted that a dispute concerning whether a State has an entitle-
ment to a maritime zone is a distinct matter from the delimitation of maritime
zones in an area in which they overlap. The Tribunal noted that entitlements,
together with a wide variety of other issues, are commonly considered in a
boundary delimitation, but can also arise in other contexts. The Tribunal held
that it does not follow that a dispute over each of these issues is necessarily a
dispute over boundary delimitation.
Finally, the Tribunal held that each of the Philippines’ Submissions reflected
a dispute concerning the Convention. In doing so, the Tribunal emphasized
(a) that a dispute concerning the interaction between the Convention and
other rights (including any Chinese “historic rights”) is a dispute concerning
the Convention and (b) that where China has not clearly stated its position,
the existence of a dispute may be inferred from the conduct of a State or from
silence and is a matter to be determined objectively.

c Involvement of Indispensable Third-​Parties

In its Award on Jurisdiction, the Tribunal considered whether the absence
from this arbitration of other States that have made claims to the islands of

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the South China Sea would be a bar to the Tribunal’s jurisdiction. The Tribunal
noted that the rights of other States would not form “the very subject-​matter of
the decision,” the standard for a third-​party to be indispensable. The Tribunal
further noted that in December 2014, Viet Nam had submitted a statement
to the Tribunal, in which Viet Nam asserted that it has “no doubt that the
Tribunal has jurisdiction in these proceedings.” The Tribunal also noted that
Viet Nam, Malaysia, and Indonesia had attended the hearing on jurisdiction
as observers, without any State raising the argument that its participation was
indispensable.
In its Award of 12 July 2016, the Tribunal noted that it had received a com-
munication from Malaysia on 23 June 2016, recalling Malaysia’s claims in the
South China Sea. The Tribunal compared its decisions on the merits of the
Philippines’ Submissions with the rights claimed by Malaysia and reaffirmed
its decision that Malaysia is not an indispensable party and that Malaysia’s
interests in the South China Sea do not prevent the Tribunal from addressing
the Philippines’ Submissions.

d Preconditions to Jurisdiction
In its Award on Jurisdiction, the Tribunal considered the applicability of
Articles 281 and 282 of the Convention, which may prevent a State from mak-
ing use of the mechanisms under the Convention if they have already agreed
to another means of dispute resolution.
The Tribunal rejected the argument set out in China’s Position Paper that the
2002 China–​a sean Declaration on the Conduct of Parties in the South China
Sea prevented the Philippines from initiating arbitration. The Tribunal held
that the Declaration is a political agreement and not legally binding, does not
provide a mechanism for binding settlement, does not exclude other means of
dispute settlement, and therefore does not restrict the Tribunal’s jurisdiction
under Articles 281 or 282. The Tribunal also considered the Treaty of Amity and
Cooperation in Southeast Asia, and the Convention on Biological Diversity,
and a series of joint statements issued by the Philippines and China referring
to the resolution of disputes through negotiations and concluded that none of
these instruments constitute an agreement that would prevent the Philippines
from bringing its claims to arbitration.
The Tribunal further held that the Parties had exchanged views regarding
the settlement of their disputes, as required by Article 283 of the Convention,
before the Philippines initiated the arbitration. The Tribunal concluded
that this requirement was met in the record of diplomatic communications
between the Philippines and China, in which the Philippines expressed a clear
preference for multilateral negotiations involving the other States surrounding

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the South China Seawhile China insisted that only bilateral talks could be
considered.

e Exceptions and Limitations to Jurisdiction

In its Award of 12 July 2016, the Tribunal considered whether the Philippines’
Submissions concerning Chinese historic rights and the ‘nine-​dash line’ were
affected by the exception from jurisdiction for disputes concerning “historic
title” in Article 298 of the Convention. The Tribunal reviewed the meaning of
“historic title” in the law of the sea and held that this refers to claims of historic
sovereignty over bays and other near-​shore waters. Reviewing China’s claims
and conduct in the South China Sea, the Tribunal concluded that China claims
historic rights to resources within the ‘nine-​dash line’, but does not claim his-
toric title over the waters of the South China Sea. Accordingly, the Tribunal con-
cluded that it had jurisdiction to consider the Philippines’ claims concerning
historic rights and, as between the Philippines and China, the ‘nine-​dash line’.
In its Award of 12 July 2016, the Tribunal also considered whether the
Philippines’ Submissions were affected by the exception from jurisdiction in
Article 298 for disputes concerning sea boundary delimitation. The Tribunal
had already found in its Award on Jurisdiction that the Philippines’ Submissions
do not concern boundary delimitation as such, but noted that several of the
Philippines’ Submissions were dependent on certain areas forming part of
the Philippines’ exclusive economic zone. The Tribunal held that it could only
address such submissions if there was no possibility that China could have an
entitlement to an exclusive economic zone overlapping that of the Philippines
and deferred a final decision on its jurisdiction. In its Award of 12 July 2016,
the Tribunal reviewed evidence about the reefs and islands claimed by China
in the South China Sea and concluded that none is capable of generating an
entitlement to an exclusive economic zone. Because China has no possible
entitlement to an exclusive economic zone overlapping that of the Philippines
in the Spratly Islandsthe Tribunal held that the Philippines’ submissions were
not dependent on a prior delimitation of a boundary.
In its Award of 12 July 2016, the Tribunal also considered whether the
Philippines’ Submissions were affected by the exception from jurisdiction in
Article 298 for disputes concerning law enforcement activities in the exclusive
economic zone. The Tribunal recalled that the exception in Article 298 would
apply only if the Philippines’ Submissions related to law enforcement activ-
ities in China’s exclusive economic zone. Because, however, the Philippines’
Submissions related to events in the Philippines’ own exclusive economic zone
or in the territorial sea, the Tribunal concluded that Article 298 did not pose an
obstacle to its jurisdiction.

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Lastly, in its Award of 12 July 2016, the Tribunal considered whether the
Philippines’ submissions were affected by the exception from jurisdiction in
Article 298 for disputes concerning military activities. The Tribunal consid-
ered that the stand-​off between Philippine marines on Second Thomas Shoal
and Chinese naval and law enforcement vessels constituted military activities
and concluded that it lacked jurisdiction over the Philippines’ Submission No.
14(a)-​(c). The Tribunal also considered whether China’s land reclamation and
construction of artificial islands at seven features in the Spratly Islands con-
stituted military activities, but noted that China had repeatedly emphasized
the non-​military nature of its actions and had stated at the highest level that
it would not militarize its presence in the Spratlys. The Tribunal decided that
it would not deem activities to be military in nature when China itself had
repeatedly affirmed the opposite. Accordingly, the Tribunal concluded that
Article 298 did not pose an obstacle to its jurisdiction.

4 The Tribunal’s Decisions on the Merits of the Philippines’ Claims

a The ‘Nine-​Dash Line’ and China’s Claim to Historic Rights in the
Maritime Areas of the South China Sea
In its Award of 12 July 2016, the Tribunal considered the implications of China’s
‘nine-​dash line’ and whether China has historic rights to resources in the South
China Sea beyond the limits of the maritime zones that it is entitled to pursu-
ant to the Convention.
The Tribunal examined the history of the Convention and its provisions con-
cerning maritime zones and concluded that the Convention was intended to
comprehensively allocate the rights of States to maritime areas. The Tribunal
noted that the question of pre-​existing rights to resources (in particular fishing
resources) was carefully considered during the negotiations on the creation of
the exclusive economic zone and that a number of States wished to preserve
historic fishing rights in the new zone. This position was rejected, however, and
the final text of the Convention gives other States only a limited right of access
to fisheries in the exclusive economic zone (in the event the coastal State can-
not harvest the full allowable catch) and no rights to petroleum or mineral
resources. The Tribunal found that China’s claim to historic rights to resources
was incompatible with the detailed allocation of rights and maritime zones in
the Convention and concluded that, to the extent China had historic rights to
resources in the waters of the South China Sea, such rights were extinguished
by the entry into force of the Convention to the extent they were incompatible
with the Convention’s system of maritime zones.
The Tribunal also examined the historical record to determine whether
China actually had historic rights to resources in the South China Sea prior

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to the entry into force of the Convention. The Tribunal noted that there is evi-
dence that Chinese navigators and fishermen, as well as those of other States,
had historically made use of the islands in the South China Sea, although the
Tribunal emphasized that it was not empowered to decide the question of
sovereignty over the islands. However, the Tribunal considered that prior to
the Convention, the waters of the South China Sea beyond the territorial sea
were legally part of the high seas, in which vessels from any State could freely
navigate and fish. Accordingly, the Tribunal concluded that historical naviga-
tion and fishing by China in the waters of the South China Sea represented the
exercise of high seas freedoms, rather than a historic right, and that there was
no evidence that China had historically exercised exclusive control over the
waters of the South China Sea or prevented other States from exploiting their
resources.
Accordingly, the Tribunal concluded that, as between the Philippines and
China, there was no legal basis for China to claim historic rights to resources, in
excess of the rights provided for by the Convention, within the sea areas falling
within the ‘nine-​dash line’.

b The Status of Features in the South China Sea

In its Award of 12 July 2016, the Tribunal considered the status of features in
the South China Sea and the entitlements to maritime areas that China could
potentially claim pursuant to the Convention.
The Tribunal first undertook a technical evaluation as to whether certain
coral reefs claimed by China are or are not above water at high tide. Under
Articles 13 and 121 of the Convention, features that are above water at high tide
generate an entitlement to at least a 12 nautical mile territorial sea, whereas
features that are submerged at high tide generate no entitlement to mari-
time zones. The Tribunal noted that many of the reefs in the South China Sea
have been heavily modified by recent land reclamation and construction and
recalled that the Convention classifies features on the basis of their natural
condition. The Tribunal appointed an expert hydrographer to assist it in evalu-
ating the Philippines’ technical evidence and relied heavily on archival materi-
als and historical hydrographic surveys in evaluating the features. The Tribunal
agreed with the Philippines that Scarborough Shoal, Johnson Reef, Cuarteron
Reef, and Fiery Cross Reef are high-​tide features and that Subi Reef, Hughes
Reef, Mischief Reef, and Second Thomas Shoal were submerged at high tide in
their natural condition. However, the Tribunal disagreed with the Philippines
regarding the status of Gaven Reef (North) and McKennan Reef and concluded
that both are high tide features.

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The Tribunal then considered whether any of the features claimed by China
could generate an entitlement to maritime zones beyond 12 nautical miles.
Under Article 121 of the Convention, islands generate an entitlement to an
exclusive economic zone of 200 nautical miles and to a continental shelf, but
“[r]‌ocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf.” The Tribunal noted
that this provision was closely linked to the expansion of coastal State jurisdic-
tion with the creation of the exclusive economic zone and was intended to
prevent insignificant features from generating large entitlements to maritime
zones that would infringe on the entitlements of inhabited territory or on the
high seas and the area of the seabed reserved for the common heritage of man-
kind. The Tribunal interpreted Article 121 and concluded that the entitlements
of a feature depend on (a) the objective capacity of a feature, (b) in its natural
condition, to sustain either (c) a stable community of people or (d) economic
activity that is neither dependent on outside resources nor purely extractive
in nature.
The Tribunal noted that many of the features in the Spratly Islands are
currently controlled by one or another of the littoral States, which have con-
structed installations and maintain personnel there. The Tribunal considered
these modern presences to be dependent on outside resources and support
and noted that many of the features have been modified to improve their hab-
itability, including through land reclamation and the construction of infra-
structure such as desalination plants. The Tribunal concluded that the current
presence of official personnel on many of the features does not establish their
capacity, in their natural condition, to sustain a stable community of people
and considered that historical evidence of habitation or economic life was
more relevant to the objective capacity of the features. Examining the histori-
cal record, the Tribunal noted that the Spratly Islands were historically used by
small groups of fishermen from China, as well as other States, and that several
Japanese fishing and guano mining enterprises were attempted in the 1920s
and 1930s. The Tribunal concluded that temporary use of the features by fish-
ermen did not amount to inhabitation by a stable community and that all of
the historical economic activity had been extractive in nature. Accordingly,
the Tribunal concluded that all of the high-​tide features in the Spratly Islands
(including, for example, Itu Aba, Thitu, West York Island, Spratly Island, North-​
East Cay, South-​West Cay) are legally “rocks” that do not generate an exclusive
economic zone or continental shelf.
The Tribunal also held that the Convention does not provide for a group of
islands such as the Spratly Islands to generate maritime zones collectively as
a unit.

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c Chinese Activities in the South China Sea

In its Award of 12 July 2016, the Tribunal considered the lawfulness under the
Convention of various Chinese actions in the South China Sea.
Having found that Mischief Reef, Second Thomas Shoal and Reed Bank are
submerged at high tide, form part of the exclusive economic zone and conti-
nental shelf of the Philippines, and are not overlapped by any possible entitle-
ment of China, the Tribunal concluded that the Convention is clear in allocat-
ing sovereign rights to the Philippines with respect to sea areas in its exclusive
economic zone. The Tribunal found as a matter of fact that China had (a) inter-
fered with Philippine petroleum exploration at Reed Bank, (b) purported to
prohibit fishing by Philippine vessels within the Philippines’ exclusive eco-
nomic zone, (c) protected and failed to prevent Chinese fishermen from fish-
ing within the Philippines’ exclusive economic zone at Mischief Reef and
Second Thomas Shoal, and (d) constructed installations and artificial islands
at Mischief Reef without the authorization of the Philippines. The Tribunal
therefore concluded that China had violated the Philippines’ sovereign rights
with respect to its exclusive economic zone and continental shelf.
The Tribunal next examined traditional fishing at Scarborough Shoal and
concluded that fishermen from the Philippines, as well as fishermen from
China and other countries, had long fished at the Shoal and had traditional fish-
ing rights in the area. Because Scarborough Shoal is above water at high tide,
it generates an entitlement to a territorial sea, its surrounding waters do not
form part of the exclusive economic zone, and traditional fishing rights were
not extinguished by the Convention. Although the Tribunal emphasized that
it was not deciding sovereignty over Scarborough Shoal, it found that China
had violated its duty to respect to the traditional fishing rights of Philippine
fishermen by halting access to the Shoal after May 2012. The Tribunal noted,
however, that it would reach the same conclusion with respect to the tradi-
tional fishing rights of Chinese fishermen if the Philippines were to prevent
fishing by Chinese nationals at Scarborough Shoal.
The Tribunal also considered the effect of China’s actions on the marine
environment. In doing so, the Tribunal was assisted by three independent
experts on coral reef biology who were appointed to assist it in evaluating the
available scientific evidence and the Philippines’ expert reports. The Tribunal
found that China’s recent large scale land reclamation and construction of arti-
ficial islands at seven features in the Spratly Islands has caused severe harm to
the coral reef environment and that China has violated its obligation under
Articles 192 and 194 of the Convention to preserve and protect the marine envi-
ronment with respect to fragile ecosystems and the habitat of depleted, threat-
ened, or endangered species. The Tribunal also found that Chinese fishermen

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have engaged in the harvesting of endangered sea turtles, coral, and giant
clams on a substantial scale in the South China Sea, using methods that inflict
severe damage on the coral reef environment. The Tribunal found that Chinese
authorities were aware of these activities and failed to fulfill their due diligence
obligations under the Convention to stop them.
Finally, the Tribunal considered the lawfulness of the conduct of Chinese
law enforcement vessels at Scarborough Shoal on two occasions in April and
May 2012 when Chinese vessels had sought to physically obstruct Philippine
vessels from approaching or gaining entrance to the Shoal. In doing so, the
Tribunal was assisted by an independent expert on navigational safety who
was appointed to assist it in reviewing the written reports provided by the offi-
cers of the Philippine vessels and the expert evidence on navigational safety
provided by the Philippines. The Tribunal found that Chinese law enforce-
ment vessels had repeatedly approached the Philippine vessels at high speed
and sought to cross ahead of them at close distances, creating serious risk of
collision and danger to Philippine ships and personnel. The Tribunal con-
cluded that China had breached its obligations under the Convention on the
International Regulations for Preventing Collisions at Sea, 1972, and Article 94
the Convention concerning maritime safety.

d Aggravation of the Dispute between the Parties

In its Award of 12 July 2016, the Tribunal considered whether China’s recent
large-​scale land reclamation and construction of artificial islands at seven fea-
tures in the Spratly Islands since the commencement of the arbitration had
aggravated the dispute between the Parties. The Tribunal recalled that there
exists a duty on parties engaged in a dispute settlement procedure to refrain
from aggravating or extending the dispute or disputes at issue during the pen-
dency of the settlement process. The Tribunal noted that China has (a) built
a large artificial island on Mischief Reef, a low-​tide elevation located in the
exclusive economic zone of the Philippines; (b) caused permanent, irreparable
harm to the coral reef ecosystem and (c) permanently destroyed evidence of
the natural condition of the features in question. The Tribunal concluded that
China had violated its obligations to refrain from aggravating or extending the
Parties’ disputes during the pendency of the settlement process.

e Future Conduct of the Parties

Finally, the Tribunal considered the Philippines’ request for a declaration that,
going forward, China shall respect the rights and freedoms of the Philippines
and comply with its duties under the Convention. In this respect, the Tribunal
noted that both the Philippines and China have repeatedly accepted that the

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Convention and general obligations of good faith define and regulate their
conduct. The Tribunal considered that the root of the disputes at issue in this
arbitration lies not in any intention on the part of China or the Philippines to
infringe on the legal rights of the other, but rather in fundamentally different
understandings of their respective rights under the Convention in the waters
of the South China Sea. The Tribunal recalled that it is a fundamental principle
of international law that bad faith is not presumed and noted that Article 11
of Annex vii provides that the “award … shall be complied with by the parties
to the dispute.” The Tribunal therefore considered that no further declaration
was necessary.

ii The National Territory vis-​à-​vis Claims of Internal Autonomy

A The Constitution of the Republic of the Philippines (1987)49

article x. Local Government
section 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao and the Cordilleras as hereinaf-
ter provided.
….
section 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities, municipalities,
and geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics
within the framework of this Constitution and the national sovereignty as well
as territorial integrity of the Republic of the Philippines.
….
section 20. Within its territorial jurisdiction and subject to the provisions
of this Constitution and national laws, the organic act of autonomous regions
shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;

49 1987 Phil. Const., available at: https://​www.officialgazette.gov.ph/​constitutions/​1987-​

constitution/​.

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(6) Economic, social, and tourism development;

(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region.

B Abbas v. comelec (1989)50

…
The Tripoli Agreement, more specifically, the agreement between the
Government of the Republic of the Philippines and Moro National Liberation
Front with the Participation of the Quadripartite Ministerial Commission
Members of the Islamic Conference and the Secretary General of the
Organization of Islamic Conference, took effect on December 23, 1976. It pro-
vided for “[e]‌stablishment of Autonomy in the Southern Philippines within
the realm of the sovereignty and territorial integrity of the Republic of the
Philippines” and enumerated the thirteen (13) provinces comprising the “areas
of autonomy.”
In 1987, a new Constitution was ratified, which for the first time provided
for regional autonomy. Article x, section 15 of the charter provides that
“[t]‌here shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geograph-
ical areas sharing common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty as well as territo-
rial integrity of the Republic of the Philippines.”
To effectuate this mandate, the Constitution further provides:
…

Sec. 18. … The creation of the autonomous region shall be effective when
approved by majority of the votes cast by the constituent units in a pleb-
iscite called for the purpose, provided that only the provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in
the autonomous region.
Sec. 19. The first Congress elected under this Constitution shall, within
eighteen months from the time of organization of both Houses, pass the
organic acts for the autonomous regions in Muslim Mindanao and the
Cordilleras.

50 g.r. No. 89651, 10 November 1989 (citations omitted).

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….
Petitioners premise their arguments on the assumption that the Tripoli
Agreement is part of the law of the land, being a binding international agree-
ment. The Solicitor General asserts that the Tripoli Agreement is neither a
binding treaty, not having been entered into by the Republic of the Philippines
with a sovereign state and ratified according to the provisions of the 1973 or
1987 Constitutions, nor a binding international agreement.
We find it neither necessary nor determinative of the case to rule on the
nature of the Tripoli Agreement and its binding effect on the Philippine
Government whether under public international or internal Philippine law. In
the first place, it is now the Constitution itself that provides for the creation
of an autonomous region in Muslim Mindanao. The standard for any inquiry
into the validity of r.a. No. 6734 would therefore be what is so provided in the
Constitution. Thus, any conflict between the provisions of r.a. No. 6734 and
the provisions of the Tripoli Agreement will not have the effect of enjoining the
implementation of the Organic Act. Assuming for the sake of argument that
the Tripoli Agreement is a binding treaty or international agreement, it would
then constitute part of the law of the land. But as internal law it would not be
superior to r.a. No. 6734, an enactment of the Congress of the Philippines,
rather it would be in the same class as the latter [salonga, public interna-
tional law 320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884)
and Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if at all, r.a. No. 6734 would be
amendatory of the Tripoli Agreement, being a subsequent law. Only a deter-
mination by this Court that r.a. No. 6734 contravenes the Constitution would
result in the granting of the reliefs sought.
…
First, the questioned provision itself in r.a. No. 6734 refers to Section 18,
Article x of the Constitution which sets forth the conditions necessary for the
creation of the autonomous region. The reference to the constitutional pro-
vision cannot be glossed over for it clearly indicates that the creation of the
autonomous region shall take place only in accord with the constitutional
requirements. Second, there is a specific provision in the Transitory Provisions
(Article xix) of the Organic Act, which incorporates substantially the same
requirements embodied in the Constitution and fills in the details, thus:

sec. 13. The creation of the Autonomous Region in Muslim Mindanao

shall take effect when approved by a majority of the votes cast by the
constituent units provided in paragraph (2) of Sec. 1 of Article ii of this
Act in a plebiscite which shall be held not earlier than ninety (90) days
or later than one hundred twenty (120) days after the approval of this

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Act: Provided, That only the provinces and cities voting favorably in
such plebiscite shall be included in the Autonomous Region in Muslim
Mindanao. The provinces and cities which in the plebiscite do not vote
for inclusion in the Autonomous Region shall remain in the existing
administrative regions: Provided, however, That the President may, by
administrative determination, merge the existing regions.

Thus, under the Constitution and r.a. No. 6734, the creation of the autono-
mous region shall take effect only when approved by a majority of the votes
cast by the constituent units in a plebiscite, and only those provinces and cit-
ies where a majority vote in favor of the Organic Act shall be included in the
autonomous region. The provinces and cities wherein such a majority is not
attained shall not be included in the autonomous region. It may be that even
if an autonomous region is created, not all of the thirteen (13) provinces and
nine (9) cities mentioned in Article ii, section 1(2) of r.a. No. 6734 shall be
included therein. The single plebiscite contemplated by the Constitution and
r.a. No. 6734 will therefore be determinative of (1) whether there shall be an
autonomous region in Muslim Mindanao and (2) which provinces and cities,
among those enumerated in r.a. No. 6734, shall comprise it.

C Cariño v. Insular Government of the Philippine Islands (1909)51

…
The applicant and plaintiff in error is an Igorot of the province of Benguet,
where the land lies. For more than fifty years before the Treaty of Paris, as far
back as the findings go, the plaintiff and his ancestors had held the land as
owners. His grandfather had lived upon it, and had maintained fences suffi-
cient for the holding of cattle, according to the custom of the country, some of
the fences, it seems, having been of much earlier date. His father had cultivated
parts and had used parts for pasturing cattle, and he had used it for pasture in
his turn. They all had been recognized as owners by the Igorots, and he had
inherited or received the land from his father, in accordance with Igorot cus-
tom. No document of title, however, had issued from the Spanish Crown, and
although, in 1893–​1894, and again in 1896–​1897, he made application for one
under the royal decrees then in force, nothing seems to have come of it, unless,
perhaps, information that lands in Benguet could not be conceded until those
to be occupied for a sanatorium, etc., had been designated,-​a purpose that has
been carried out by the Philippine government and the United States. In 1901

51 212 U.S. 449, 23 February 1909.

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the plaintiff filed a petition, alleging ownership, under the mortgage law, and
the lands were registered to him, that process, however, establishing only a
possessory title, it is said.
…
We come, then, to the question on which the case was decided below—​
namely, whether the plaintiff owns the land. The position of the government,
shortly stated, is that Spain assumed, asserted, and had title to all the land in
the Philippines except so far as it saw fit to permit private titles to be acquired;
that there was no prescription against the Crown, and that, if there was, a
decree of June 25, 1880, required registration within a limited time to make the
title good; that the plaintiff’s land was not registered, and therefore became, if
it was not always, public land; that the United States succeeded to the title of
Spain, and so that the plaintiff has no rights that the Philippine government is
bound to respect.
If we suppose for the moment that the government’s contention is so far
correct that the Crown of Spain in form asserted a title to this land at the date
of the treaty of Paris, to which the United States succeeded, it is not to be
assumed without argument that the plaintiff’s case is at an end. It is true that
Spain, in its earlier decrees, embodied the universal feudal theory that all lands
were held from the Crown, and perhaps the general attitude of conquering
nations toward people not recognized as entitled to the treatment accorded
to those in the same zone of civilization with themselves. It is true, also, that,
in legal theory, sovereignty is absolute, and that, as against foreign nations, the
United States may assert, as Spain asserted, absolute power. But it does not fol-
low that, as against the inhabitants of the Philippines, the United States asserts
that Spain had such power. When theory is left on one side, sovereignty is a
question of strength, and may vary in degree. How far a new sovereign shall
insist upon the theoretical relation of the subjects to the head in the past, and
how far it shall recognize actual facts, are matters for it to decide.
The Province of Benguet was inhabited by a tribe that the Solicitor General,
in his argument, characterized as a savage tribe that never was brought under
the civil or military government of the Spanish Crown. It seems probable, if
not certain, that the Spanish officials would not have granted to anyone in
that province the registration to which formerly the plaintiff was entitled by
the Spanish laws, and which would have made his title beyond question good.
Whatever may have been the technical position of Spain, it does not follow
that, in the view of the United States, he had lost all rights and was a mere
trespasser when the present government seized his land. The argument to that
effect seems to amount to a denial of native titles throughout an important

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part of the island of Luzon, at least, for the want of ceremonies which the
Spaniards would not have permitted and had not the power to enforce.
The acquisition of the Philippines was not like the settlement of the white
race in the United States. Whatever consideration may have been shown to the
North American Indians, the dominant purpose of the whites in America was
to occupy the land. It is obvious that, however stated, the reason for our taking
over the Philippines was different. No one, we suppose, would deny that, so
far as consistent with paramount necessities, our first object in the internal
administration of the islands is to do justice to the natives, not to exploit their
country for private gain. By the organic act of July 1, 1902 … all the property
and rights acquired there by the United States are to be administered ‘for the
benefit of the inhabitants thereof.’ It is reasonable to suppose that the attitude
thus assumed by the United States with regard to what was unquestionably
its own is also its attitude in deciding what it will claim for its own. The same
statute made a bill of rights, embodying the safeguards of the Constitution,
and, like the Constitution, extends those safeguards to all. It provides that ‘no
law shall be enacted in said islands which shall deprive any person of life, lib-
erty, or property without due process of law, or deny to any person therein
the equal protection of the laws.’. In the light of the declaration that we have
quoted from, it is hard to believe that the United States was ready to declare in
the next breath that ‘any person’ did not embrace the inhabitants of Benguet,
or that it meant by ‘property’ only that which had become such by ceremo-
nies of which presumably a large part of the inhabitants never had heard, and
that it proposed to treat as public land what they, by native custom and by
long association,-​one of the profoundest factors in human thought, regarded
as their own.
It is true that … the government of the Philippines is empowered to enact
rules and prescribe terms for perfecting titles to public lands where some, but
not all, Spanish conditions had been fulfilled, and to issue patents to natives
for not more than 16 hectares of public lands actually occupied by the native or
his ancestors before August 13, 1898. But this section perhaps might be satisfied
if confined to cases where the occupation was of land admitted to be public
land, and had not continued for such a length of time and under such circum-
stances as to give rise to the understanding that the occupants were owners at
that date. We hesitate to suppose that it was intended to declare every native
who had not a paper title a trespasser, and to set the claims of all the wilder
tribes afloat. It is true again that there is excepted from the provision that we
have quoted as to the administration of the property and rights acquired by the
United States, such land and property as shall be designated by the President
for military or other reservations, as this land since has been. But there still

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remains the question what property and rights the United States asserted itself
to have acquired.
… It might, perhaps, be proper and sufficient to say that when, as far back
as testimony or memory goes, the land has been held by individuals under a
claim of private ownership, it will be presumed to have been held in the same
way from before the Spanish conquest, and never to have been public land.
Certainly in a case like this, if there is doubt or ambiguity in the Spanish law,
we ought to give the applicant the benefit of the doubt. Whether justice to the
natives and the import of the organic act ought not to carry us beyond a subtle
examination of ancient texts, or perhaps even beyond the attitude of Spanish
law, humane though it was, it is unnecessary to decide. If, in a tacit way, it was
assumed that the wild tribes of the Philippines were to be dealt with as the
power and inclination of the conqueror might dictate, Congress has not yet
sanctioned the same course as the proper one ‘for the benefit of the inhabi-
tants thereof.’
If the applicant’s case is to be tried by the law of Spain, we do not discover
such clear proof that it was bad by that law as to satisfy us that he does not
own the land. To begin with, the older decrees and laws cited by the counsel for
the plaintiff in error seem to indicate pretty clearly that the natives were rec-
ognized as owning some lands, irrespective of any royal grant. In other words,
Spain did not assume to convert all the native inhabitants of the Philippines
into trespassers or even into tenants at will. For instance, … the Recopilacion de
Leyes de las Indias [or Compilation of Laws of the Indies] … while it commands
viceroys and others, when it seems proper, to call for the exhibition of grants,
directs them to confirm those who hold by good grants or justa prescripcion.
It is true that it begins by the characteristic assertion of feudal overlordship
and the origin of all titles in the King or his predecessors. That was theory and
discourse. The fact was that titles were admitted to exist that owed nothing to
the powers of Spain beyond this recognition in their books.
Prescription is mentioned again in the royal cedula of October 15,
1754 …: ‘Where such possessors shall not be able to produce title deeds, it shall
be sufficient if they shall show that ancient possession, as a valid title by pre-
scription.’ It may be that this means possession from before 1700; but, at all
events, the principle is admitted. As prescription, even against Crown lands,
was recognized by the laws of Spain, we see no sufficient reason for hesitating
to admit that it was recognized in the Philippines in regard to lands over which
Spain had only a paper sovereignty.
…
It will be perceived that the rights of the applicant under the Spanish
law present a problem not without difficulties for courts of a different legal

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tradition. We have deemed it proper on that account to notice the possible

effect of the change of sovereignty and the act of Congress establishing the
fundamental principles now to be observed. Upon a consideration of the
whole case we are of opinion that law and justice require that the applicant
should be granted what he seeks, and should not be deprived of what, by the
practice and belief of those among whom he lived, was his property, through a
refined interpretation of an almost forgotten law of Spain.

D Province of North Cotabato v. Government of the Republic of the

Philippines Peace Panel on Ancestral Domain (2008)52
International law has long recognized the right to self-​determination of “peo-
ples”, understood not merely as the entire population of a State but also a por-
tion thereof. In considering the question of whether the people of Quebec had
a right to unilaterally secede from Canada, the Canadian Supreme Court in
Reference Re Secession of Quebec had occasion to acknowledge that “the right
of a people to self-​determination is now so widely recognized in international
conventions that the principle has acquired a status beyond ‘convention’ and
is considered a general principle of international law”.
Among the conventions referred to are the International Covenant on Civil
and Political Rights and the International Covenant on Economic, Social and
Cultural Rights which state, in Article 1 of both covenants, that all peoples, by
virtue of the right of self-​determination, “freely determine their political status
and freely pursue their economic, social, and cultural development”.
The people’s right to self-​determination should not, however, be understood
as extending to a unilateral right of secession. A distinction should be made
between the right of internal and external self-​determination. Reference Re
Secession of Quebec is again instructive:

(ii) Scope of the Right to Self-​determination

126. The recognized sources of international law establish that the
right to self-​determination of a people is normally fulfilled through
internal self-​determination—​a people’s pursuit of its political, eco-
nomic, social and cultural development within the framework of an
existing state. A right to external self-​determination (which in this case
potentially takes the form of the assertion of a right to unilateral seces-
sion) arises in only the most extreme of cases and, even then, under
carefully defined circumstances ….

52 g.r. No. 183591, 14 October 2008 (citations omitted).

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External self-​determination can be defined as in the following state-

ment from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the
free association or integration with an independent State or
the emergence into any other political status freely determined
by a people constitute modes of implementing the right of self-​
determination by that people. [emphasis added]
127. The international law principle of self-​determination has evolved
within a framework of respect for the territorial integrity of existing
states. The various international documents that support the existence
of a people’s right to self-​determination also contain parallel statements
supportive of the conclusion that the exercise of such a right must be suf-
ficiently limited to prevent threats to an existing state’s territorial integ-
rity or the stability of relations between sovereign states. …

The Canadian Court went on to discuss the exceptional cases in which the
right to external self-​determination can arise, namely, where a people is under
colonial rule, is subject to foreign domination or exploitation outside a colonial
context, and—​less definitely but asserted by a number of commentators—​is
blocked from the meaningful exercise of its right to internal self-​determination.
The Court ultimately held that the population of Quebec had no right to seces-
sion, as the same is not under colonial rule or foreign domination, nor is it
being deprived of the freedom to make political choices and pursue economic,
social and cultural development, citing that Quebec is equitably represented
in legislative, executive and judicial institutions within Canada, even occupy-
ing prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the
Report of the International Committee of Jurists on the Legal Aspects of the Aaland
Islands Question. There, Sweden presented to the Council of the League of
Nations the question of whether the inhabitants of the Aaland Islands should
be authorized to determine by plebiscite if the archipelago should remain
under Finnish sovereignty or be incorporated in the kingdom of Sweden. The
Council, before resolving the question, appointed an International Committee
composed of three jurists to submit an opinion on the preliminary issue of
whether the dispute should, based on international law, be entirely left to the
domestic jurisdiction of Finland. The Committee stated the rule as follows:

… [I]‌n the absence of express provisions in international treaties, the right

of disposing of national territory is essentially an attribute of the sover-
eignty of every State. Positive International Law does not recognize the

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136  Chapter 3

right of national groups, as such, to separate themselves from the State of

which they form part by the simple expression of a wish, any more than it
recognizes the right of other States to claim such a separation. Generally
speaking, the grant or refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some other method,
is, exclusively, an attribute of the sovereignty of every State which is defin-
itively constituted. A dispute between two States concerning such a ques-
tion, under normal conditions therefore, bears upon a question which
International Law leaves entirely to the domestic jurisdiction of one of
the States concerned. Any other solution would amount to an infringe-
ment of sovereign rights of a State and would involve the risk of creating
difficulties and a lack of stability which would not only be contrary to the
very idea embodied in term “State”, but would also endanger the interests
of the international community. If this right is not possessed by a large or
small section of a nation, neither can it be held by the State to which the
national group wishes to be attached, nor by any other State.

The Committee held that the dispute concerning the Aaland Islands did not
refer to a question which is left by international law to the domestic jurisdic-
tion of Finland, thereby applying the exception rather than the rule elucidated
above. Its ground for departing from the general rule, however, was a very
narrow one, namely, the Aaland Islands agitation originated at a time when
Finland was undergoing drastic political transformation. The internal situa-
tion of Finland was, according to the Committee, so abnormal that, for a con-
siderable time, the conditions required for the formation of a sovereign State
did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy
of the Finnish national government was disputed by a large section of the peo-
ple, and it had, in fact, been chased from the capital and forcibly prevented
from carrying out its duties. The armed camps and the police were divided into
two opposing forces. In light of these circumstances, Finland was not, during
the relevant time period, a “definitively constituted” sovereign state. The
Committee, therefore, found that Finland did not possess the right to withhold
from a portion of its population the option to separate itself—​a right which
sovereign nations generally have with respect to their own populations.
Turning now to the more specific category of indigenous peoples, this term
has been used, in scholarship as well as international, regional, and state prac-
tices, to refer to groups with distinct cultures, histories, and connections to
land (spiritual and otherwise) that have been forcibly incorporated into a
larger governing society. These groups are regarded as “indigenous” since they
are the living descendants of pre-​invasion inhabitants of lands now dominated

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National Territory 137

by others. Otherwise stated, indigenous peoples, nations, or communities are

culturally distinctive groups that find themselves engulfed by settler societies
born of the forces of empire and conquest. Examples of groups who have been
regarded as indigenous peoples are the Maori of New Zealand and the aborig-
inal peoples of Canada.
As with the broader category of “peoples”, indigenous peoples situated
within states do not have a general right to independence or secession from
those states under international law, but they do have rights amounting to
what was discussed above as the right to internal self-​determination.
In a historic development last September 13, 2007, the UN General Assembly
adopted the United Nations Declaration on the Rights of Indigenous Peoples
(un drip) through General Assembly Resolution 61/​295. The vote was 143 to
4, the Philippines being included among those in favor, and the four voting
against being Australia, Canada, New Zealand, and the U.S. The Declaration
clearly recognized the right of indigenous peoples to self-​determination,
encompassing the right to autonomy or self-​government, to wit:

Article 3
Indigenous peoples have the right to self-​determination. By virtue of
that right they freely determine their political status and freely pursue
their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-​determination,
have the right to autonomy or self-​government in matters relating to their
internal and local affairs, as well as ways and means for financing their
autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions, while
retaining their right to participate fully, if they so choose, in the political,
economic, social and cultural life of the State.

Self-​
government, as used in international legal discourse pertaining to
indigenous peoples, has been understood as equivalent to “internal self-​
determination”. The extent of self-​determination provided for in the un drip
is more particularly defined in its subsequent articles, some of which are
quoted hereunder: [inter alia, right not to be subjected to forced assimilation
or destruction of their culture; the right to the improvement of their economic
and social conditions; right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired; protection

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138  Chapter 3

from military activities in these lands and territories; and the right to the recog-
nition, observance and enforcement of treaties concluded with States.]
Assuming that the un drip, like the Universal Declaration on Human Rights,
must now be regarded as embodying customary international law—​a question
which the Court need not definitively resolve here—​the obligations enumer-
ated therein do not strictly require the Republic to grant the Bangsamoro peo-
ple, through the instrumentality of the bje, the particular rights and powers
provided for in the moa-​a d. Even the more specific provisions of the un drip
are general in scope, allowing for flexibility in its application by the different
States.
….
Moreover, the un drip, while upholding the right of indigenous peoples
to autonomy, does not obligate States to grant indigenous peoples the near-​
independent status of an associated state. All the rights recognized in that doc-
ument are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any
State, people, group or person any right to engage in any activity or
to perform any act contrary to the Charter of the United Nations or
construed as authorizing or encouraging any action which would dis-
member or impair, totally or in part, the territorial integrity or politi-
cal unity of sovereign and independent States.
Even if the un drip were considered as part of the law of the land pursuant to
Article ii, Section 2 of the Constitution, it would not suffice to uphold the valid-
ity of the moa-​a d so as to render its compliance with other laws unnecessary.

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 ­c hapter 4

The Philippines and the International Court

of Justice

Overview

The Philippines is a member of the United Nations and thus commits itself,
under the UN Charter, to the “pacific settlement of disputes” through inter
alia “judicial settlement”.1 The International Court of Justice (icj) is the
“principal judicial organ of the United Nations”2 and functions under its
Statute, which “forms an integral part of the United Nations Charter”.3 The
Philippines, as a signatory of the UN Charter,4 is ipso facto a party to the icj
Statute.5 Accordingly, the Philippines is eligible to file cases before it because
the icj Statute states that the “Court shall be open to the states parties to the
present Statute”.6
On the other hand, the Philippines has consented to be brought before the
Court under its compulsory jurisdiction. The fundamental principle is that the
Court can acquire jurisdiction over a sovereign state only with that state’s con-
sent. That consent can be expressed via compromis, that is to say, the voluntary
submission by the contesting states on a case-​by-​case basis7; or via a compro-
missory clause in a multilateral treaty where the signatory states declare in
advance that certain disputes arising under that treaty will be submitted to
the icj8; or via what is called the “compulsory jurisdiction”,9 which is the most
expansive commitment a state can make to the icj because the state thereby

1 Charter of the United Nations (hereinafter UN Charter) art. 2, ¶ 3 in relation to art. 33.
2 U.N. Charter art. 92.
3 U.N. Charter art. 92.
4 Admitted 24 October 1945; See Member States, United Nations, available at: http://​
www.un.org/​en/​member-​states/​index.html#gotoP.
5 U.N. Charter art. 93, ¶ 1 (“All Members of the United Nations are ipso facto parties to the
Statute of the International Court of Justice. “), supra note 1.
6 Statute of the International Court of Justice (hereinafter icj Statute), art. 35.
7 i.c.j. Statute art. 36 ¶ 1 (“all cases which the parties refer to it”), supra note 6.
8 i.c.j. Statute art. 36 ¶ 1 (“all matters specially provided for in the Charter of the United
Nations or in treaties and conventions in force”), supra note 6.
9 i.c.j. Statute art. 36 ¶ 2, supra note 6.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004469723_006

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140  Chapter 4

submits, in advance and not knowing in what dispute it may be sued in the
future. The Statute says:

The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in rela-
tion to any other state accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:

a. the interpretation of a treaty;

b. any question of international law;
c. the existence of any fact which, if established, would constitute a
breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an
international obligation. 10

The Philippine Submission to Compulsory Jurisdiction

The Philippines made its original Article 36, para. 2 declaration submitting to
the compulsory jurisdiction of the icj soon after the Court was established in
1945 and the Philippines regained its independence from the United States in
1946. It is notable that the Philippine declaration of 1947 was a verbatim copy
of the United States’ declaration, including the typical reservation on matters
within its reserve domain, on reciprocity, and on multilateral treaties.
The icj Statute allows states, when they submit to compulsory jurisdiction,
to submit only “on condition of reciprocity” or “for a certain time”.11 Reciprocity
is separately recognized in the chapeau of Article 36, when it says that a state
may submit to compulsory jurisdiction “in relation to any other state accepting
the same obligation.”12
However, in 1972, under President Ferdinand Marcos, the Philippines revised
its declaration to exclude disputes over land and maritime disputes. Note that
the People’s Republic of China has not submitted to the compulsory jurisdic-
tion of the icj. Note too that these constraints pertain solely to icj jurisdiction
and do not apply to the jurisdiction of the Permanent Court of Arbitration in
the 2016 South China Sea case, supra, where jurisdiction was founded on the

10 i.c.j. Statute art. 36 ¶ 2.

11 i.c.j. Statute art. 33, ¶ 3.
12 i.c.j. Statute art. 33, ¶ 3.

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The Philippines and the International Court of Justice 141

compromissory clause in the Convention on the Law of the Sea to which the
Philippines and China are both signatories.

1982 Manila Declaration

The Manila Declaration on the Peaceful Settlement of International Disputes

was actually approved in New York by the United Nations General Assembly,
which adopted a text prepared during the 1980 Manila session of the Special
Committee on the Charter of the United Nations and on the Strengthening of the
Role of the Organization. The Philippines was one of the non-​aligned countries
that initiated the Manila Declaration, which states that “legal disputes should
as a general rule be referred by the parties to the International Court of Justice,
in accordance with the provisions of the Statute of the Court.” Significantly,
the Manila Declaration states that “[r]‌ecourse to judicial settlement of legal
disputes … should not be considered an unfriendly act between States.”
The Manila Declaration sought to enhance the peaceful resolution of dis-
putes by enhancing the jurisdiction of the icj via more compromissory clauses
in treaties13 and voluntary submission via compromis,14 and increased requests
for advisory opinions15 from international organizations.

Philippine Participation in the Work of the Court

The Philippines has had only one national elected to sit in the icj, namely,
César Bengzon, who joined the icj after his retirement as Chief Justice of the
Supreme Court of the Philippines (1961–​66; Associate Justice, 1945–​48, 1949–​
61) and sat on the icj from 1967 to 1976.16
The Philippines has also participated twice in icj cases.
The first was its oral statement before the Court when it heard arguments
in 1995 on the Advisory Opinion on the Legality of the Use by a State of Nuclear
Weapons in Armed Conflict.17 The Philippine statement was delivered at The

13 icj Statute, note 8.

14 icj Statute, note 7.
15 UN Charter art. 96 and icj Statute arts. 65–​68.
16 All Members, International Court of Justice, available at: https://​www.icj-​cij.org/​en/​
all-​members.
17 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion,
1996 i.c.j. Rep. 66 (July 8).

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142  Chapter 4

Hague by Merlin M. Magallona, who was then Dean and Professor of Law,
University of the Philippines.
The second was its attempt to intervene in the territorial dispute between
Indonesia and Malaysia over two islands.18 Once again, the Philippine case
was presented as Co-​Agent and Counsel by Merlin M. Magallona, this time as
Undersecretary of Foreign Affairs.
In 1998, Indonesia and Malaysia jointly asked the icj to determine which of
them had sovereignty over Pulau Ligitan and Pulau Sipadan. The Court found
that neither state can claim treaty-​based title via conventions by colonizing
powers among themselves or with the ruling Sultan. Thus the Court decided
on the basis of the effectivités proven by the parties “evidencing an actual, con-
tinued exercise of authority over the islands, i.e., the intention and will to act
as sovereign”, and ruled in favor of Malaysia.
On 13 March 2001, while the proceedings were on-​going but after the parties
had completed their written pleadings, the Philippines requested permission
to intervene in the case “to preserve and safeguard [its] historical and legal
rights … arising from its claim to dominion and sovereignty over the terri-
tory of North Borneo, to the extent that these rights are affected, or may be
affected, by a determination of the Court of the question of sovereignty over
Pulau Ligitan and Pulau Sipadan.” The Philippines cited the icj Statute rule on
intervention which states:

Should a state consider that it has an interest of a legal nature which may
be affected by the decision in the case, it may submit a request to the
Court to be permitted to intervene. [emphasis added]

However, the Philippines did not seek to become a party to the dispute. Its
only interest was in the treaties and other evidence used by the original parties
to the dispute that may “have a direct or indirect bearing on the matter of the
legal status of North Borneo [which the Philippines] considers as its legitimate
concern.” On 2001, the Court rejected the Philippine request to intervene.19
The Court noted that the Philippines did not lay any claim whatsoever to
either Pulau Ligitan or Pulau Sipadan, and thus had no interest in the dispositif
of the dispute. The Court further held that, although the Philippines may still
show that it has a sufficient “interest of a legal nature” in the reasoning that
led to the dispositif, the instruments cited by the Philippines for its claim over

18 Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/​Malaysia),
Judgment, 2002 i.c.j. Reports 625 (December 17).
19 i.c.j. Statute art. 62, ¶ 1, supra note 6.

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The Philippines and the International Court of Justice 143

North Borneo were not part of the arguments cited by the original Parties, and
did not give rise to an “interest of a legal nature.”

i Philippine Declaration Submitting to Compulsory Jurisdiction

(1972)20

I, Carlos P. Romulo, Secretary of Foreign Affairs of the Republic of the

Philippines, hereby declare, under Article 36, paragraph 2, of the Statute of the
International Court of Justice, that the Republic of the Philippines recognizes
as compulsory ipso facto and without special agreement, in relation to any
other State accepting the same obligation, the jurisdiction of the International
Court of Justice in all legal disputes arising hereafter concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation;
Provided, that this declaration shall not apply to any dispute
(a) in regard to which the parties thereto have agreed or shall agree to have
recourse to some other method of peaceful settlement; or
(b) which the Republic of the Philippines considers to be essentially within
its domestic jurisdiction; or
(c) in respect of which the other party has accepted the compulsory juris-
diction of the International Court of Justice only in relation to or for the
purposes of such dispute; or where the acceptance of the compulsory
jurisdiction was deposited or ratified less than 12 months prior to the
filing of the application bringing the dispute before the Court; or
(d) arising under a multilateral treaty, unless (1) all parties to the treaty
are also parties to the case before the Court, or (2) the Republic of the
Philippines specially agrees to jurisdiction; or
(e) arising out of or concerning jurisdiction or rights claimed or exercised
by the Philippines -​

20 18 January 1972. Declarations recognizing the jurisdiction of the Court as compulsory,

International Court of Justice, available at: https://​www.icj-​cij.org/​en/​declarations/​ph.

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144  Chapter 4

(i) in respect of the natural resources, including living organisms

belonging to sedentary species, of the sea-​bed and subsoil of the
continental shelf of the Philippines, or its analogue in an archipel-
ago, as described in Proclamation No. 370 dated 20 March 1968 of
the President of the Republic of the Philippines; or
(ii) in respect of the territory of the Republic of the Philippines, includ-
ing its territorial seas and inland waters; ….

ii Manila Declaration on the Peaceful Settlement of International

Disputes21

The General Assembly,

Reaffirming the principle of the Charter of the United Nations that all States
shall settle their international disputes by peaceful means in such a manner
that international peace and security, and justice, are not endangered,
….
Reaffirming the principle of the Charter of the United Nations that all States
shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State, or in any
other manner inconsistent with the purposes of the United Nations,
….
Solemnly declares that:
….
2. Every State shall settle its international disputes exclusively by peaceful
means in such a manner that international peace and security, and jus-
tice, are not endangered.
3. International disputes shall be settled on the basis of the sovereign
equality of States and in accordance with the principle of free choice of
means in conformity with obligations under the Charter of the United
Nations and with the principles of justice and international law.
Recourse to, or acceptance of, a settlement procedure freely agreed
to by States with regard to existing or future disputes to which they
are parties shall not be regarded as incompatible with the sovereign
equality of States.
4. States parties to a dispute shall continue to observe in their mutual rela-
tions their obligations under the fundamental principles of international

21 unga A/​r es/​37/​10. Manila Declaration on the Peaceful Settlement of Disputes (1982).

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The Philippines and the International Court of Justice 145

law concerning the sovereignty, independence and territorial integrity of

States, as well as other generally recognized principles and rules of con-
temporary international law.
….
ii
5. States should be fully aware of the role of the International Court of
Justice, which is the principal judicial organ of the United Nations. Their
attention is drawn to the facilities offered by the International Court of
Justice for the settlement of legal disputes, especially since the revision of
the Rules of the Court.
States may entrust the solution of their differences to other tribunals by
virtue of agreements already in existence or which may be concluded in
the future.
States should bear in mind:
(a) That legal disputes should as a general rule be referred by the par-
ties to the International Court of Justice, in accordance with the
provisions of the Statute of the Court;
(b) That it is desirable that they:
(i) Consider the possibility of inserting in treaties, when-
ever appropriate, clauses providing for the submission
to the International Court of Justice of disputes which
may arise from the interpretation or application of such
treaties;
(ii) Study the possibility of choosing, in the free exercise of their
sovereignty, to recognize as compulsory the jurisdiction of
the International Court of Justice in accordance with Article
36 of it statute;
(iii) Review the possibility of identifying cases in which use may
be made of the International Court of Justice.
The organs of the United Nations and the specialized agen-
cies should study the advisability of making use of the pos-
sibility of requesting advisory opinions of the International
Court of Justice on legal questions arising within the scope
of their activities, provided that they are duly authorized
to do so.
Recourse to judicial settlement of legal disputes, particularly
referral to the International Court of Justice, should not be
considered an unfriendly act between States.

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146  Chapter 4

iii Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia

v. Malaysia) (Permission to Intervene by the Philippines) (2001)22

On 13 March 2001, the Philippines filed an Application for permission to inter-

vene in the case, invoking Article 62 of the Statute of the Court. According to
the Application, the Philippine interest of a legal nature which may be affected
by a decision in the present case “is solely and exclusively addressed to the
treaties, agreements and other evidence furnished by Parties and appreciated
by the Court which have a direct or indirect bearing on the matter of the legal
status of North Borneo”. The Philippines also indicated that the object of the
intervention requested was:

(a) First, to preserve and safeguard the historical and legal rights of the
Government of the Republic of the Philippines arising from its claim
to dominion and sovereignty over the territory of North Borneo,
to the extent that these rights are affected, or may be affected, by
a determination of the Court of the question of sovereignty over
Pulau Ligitan and Pulau Sipadan.
(b) Second, to intervene in the proceedings in order to inform the
Honourable Court of the nature and extent of the historical and
legal rights of the Republic of the Philippines which may be affected
by the Court’s decision.
(c) Third. to appreciate more fully the indispensable role of the
Honourable Court in comprehensive conflict prevention and not
merely for the resolution of legal disputes.

The Philippines further stated in its Application that it did not seek to become
a party to the dispute before the Court concerning sovereignty over Pulau
Ligitan and Pulau Sipadan, and that the Application “is based solely on Article
62 of the Statute, which does not require a separate title of jurisdiction as a
requirement for this Application to prosper”.
…

Existence of an “Interest of a Legal Nature” (paras. 37–​83)

In relation to the existence of an “interest of a legal nature” justifying the inter-
vention, the Court refers to the Philippines contention that:

22 United Nations, Summaries of Judgments, Advisory Opinions and Orders

of the International Court of Justice (1997–​2002) 202–​20.

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The Philippines and the International Court of Justice 147

Under Article 2 of the Special Agreement between Indonesia and the

Government of Malaysia, the Court has been requested to determine the
issue of sovereignty over Pulau Ligitan and Pulau Sipadan ‘on the basis
of treaties, agreements and any other evidence’ to be furnished by the
Parties. The interest of the Republic of the Philippines is solely and exclu-
sively addressed to the treaties, agreements and other evidence furnished
by Parties and appreciated by the Court which have a direct or indirect
bearing on the matter of the legal status of North Borneo. The legal status
of North Borneo is a matter that the Government of the Republic of the
Philippines considers as its legitimate concern.

The Court also recalls that the Philippines refers to the fact that access to the
pleadings and to the annexed documents filed by the Parties was denied to it
by the Court. It contends that it therefore could not “say with any certainty
whether and which treaties, agreements and facts are in issue”. The Philippines
asserts that as long as it does not have access to the documents filed by the
Parties and does not know their content, it will not be able to explain really
what its interest is.
The Philippines emphasizes that “Article 62 does not say that the interven-
ing State must have a ‘legal interest’ or ‘lawful interest’ or ‘substantial interest’ ”,
and that the “threshold for the invocation of Article 62 is, as a result, a sub-
jective standard: the State requesting permission to intervene must ‘consider’
that it has an interest”. The Philippines asserts that “[t]‌he criteria are not to
prove a legal or lawful interest, but to ‘identify the interest of a legal nature’
and ‘to show in what way [it] may be affected’ ”. The Philippines further indi-
cates that the statements made by Indonesia and Malaysia during the public
hearing “provide evidence that the Court will be presented with many of the
treaties and agreements upon which the Philippines claim is based and will
be pressed to adopt interpretations that will certainly affect the Philippine
interest”. It submits that, on the basis of that part of the record to which it has
been allowed access, “the probability of consequences for the interests of the
Philippines meets the ‘may’ requirements of Article 62 and justifies Philippine
intervention”.
The Philippines points out that it “has a direct legal interest in the inter-
pretation of the 1930 United States-​United Kingdom boundary, being the
successor-​in-​interest of one party to that agreement, the United States”, that
“the 1930 Agreement cannot be construed in any way as an instrument of ces-
sion”, and that “Britain could not have acquired sovereignty over Pulau Sipadan
and Pulau Ligitan by virtue of the interpretation placed by Malaysia on the
1930 United States-​United Kingdom Agreement”; it follows from this that “the

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two islands in question were acquired by the United Kingdom in 1930 for and
on behalf of the Sultan of Sulu”. The Philippines further states that “the terri-
tory ceded by the Sultan to the Philippines in 1962 covered only those territo-
ries which were included and described in the 1578 Sum-​Overbeck lease agree-
ment”, and that its “Application for permission to intervene is based solely on
the rights of the Government of the Republic of the Philippines transferred by
and acquired from the Sulu Sultanate”.
The Philippines concludes that:

Any claim or title to territory in or islands near North Borneo that

assumes or posits or purports to rest a critical link on the legitimate sov-
ereign title of Great Britain from 1875 up to the present is unfounded.
Similarly, the interpretation of any treaty, agreement or document con-
cerning the legal status of North Borneo as well as islands off the coast
of North Borneo which would presume or take for granted the existence
of British sovereignty and dominion over these territories has no basis
at all in history as well as in law and, if upheld by the Court, it would
adversely affect an interest of a legal nature on the part of the Republic
of the Philippines.

For its part, Indonesia denies that the Philippines has an “interest of a legal
nature”. It states that “the subject matter of the dispute currently pending
before the Court is limited to the question whether sovereignty over the
islands of Ligitan and Sipadan belongs to Indonesia or Malaysia”. It recalls that
on 5 April 2001, the Philippines sent a diplomatic Note to Indonesia in which,
referring to the ongoing case between Indonesia and Malaysia, it wished to
reassure the Government of Indonesia that the Philippines does not have “any
territorial interest on Sipadan and Ligitan islands”. Indonesia contends that “It
is evident from this [note] that the Philippines raises no claim with respect to
Pulau Ligitan and Pulau Sipadan” and maintains that

The legal status of North Borneo is not a matter on which the Court has
been asked to rule. Moreover, the desire of the Philippines to submit its
view on various unspecified ‘treaties, agreements and other evidence fur-
nished by the Parties’ is abstract and vague.

With reference to the question of the Philippine interest of a legal nature

which may be affected by the decision in the case, Malaysia argues that

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[t]‌hat legal interest must be precisely identified, then compared with the
basis of [the Court’s] jurisdiction as it appears front the document of sci-
sin, in the present instance the Special Agreement

and contends that:

the Philippines does not indicate how the decision … that the Court is
asked to take on the issue of sovereignty over Ligitan and Sipadan might
affect any specific legal interest. It is content to refer vaguely to the ‘trea-
ties, agreements and other evidence’ on which the Court might ‘lay down
an appreciation’. But … the interest of a legal nature must, if affected, be
so affected by the decision of the Court and not just by its reasoning. Such
appreciation as the Court may be led to make of the effect of a particular
legal instrument, or of the consequences of particular facts, as grounds
for its decision cannot, in itself, serve to establish an interest of a legal
nature in its decision in the case.

Malaysia further contends that “the issue of sovereignty over Ligitan and
Sipadan is completely independent of that of the status of North Borneo”, and
that “[t]‌he territorial titles are different in the two cases”.
The Court sets out by considering whether a third State may intervene
under Article 62 of the Statute in a dispute brought to the Court under a special
agreement, when the State seeking to intervene has no interest in the subject
matter of that dispute as such, but rather asserts an interest of a legal nature
in such findings and reasonings that the Court might make on certain specific
treaties that the State seeking to intervene claims to be in issue in a different
dispute between itself and one of the two Parties to the pending case before
the Court.
The Court first considers whether the terms of Article 62 preclude, in any
event, an “interest of a legal nature” of the State seeking to intervene in any-
thing other than the operative decision of the Court in the existing case in
which the intervention is sought. From an examination of the English and
French texts of that Article, the Court concludes that the interest of a legal
nature to be shown by a State seeking to intervene is not limited to the disposi-
tif alone of a judgment. It may also relate to the reasons which constitute the
necessary steps to the dispositif.
Having reached this conclusion, the Court then considers the nature of
the interest capable of justifying an intervention. In particular, it considers
whether the interest of the State seeking to intervene must be in the subject

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matter of the existing case itself, whether it may be different and, if so, within
what limits.
The Court observes that the question of whether a stated interest in the
reasoning of the Court and any interpretations it might give as an interest of
a legal nature for purposes of Article 62 of the Statute, can only be examined
by testing whether the legal claims which the State seeking to intervene has
outlined might be affected. Whatever the nature of the claimed “interest of
a legal nature” that a State sacking to intervene considers itself to have (and
provided that it is not simply general in nature) the Court can only judge it
“in concerto and in relation to all the circumstances of a particular case”. Thus,
the Court proceeds to examine whet.er the Philippine claim of sovereignty in
North Borneo could or could not be affected by the Court’s reasoning or inter-
pretation of treaties in the case concerning Pulau Ligitan and Pulau Sipadan.
The Court adds that a State which, as in this case, relies on an interest of a legal
nature other than in the subject matter of the case itself necessarily bears the
burden of showing with a particular clarity the existence of the interest of a
legal nature which it claims to have.
The Court recalls that the Philippines has strongly protested that it is
severely and unfairly hampered in “identifying” and “showing” its legal interest
in the absence of access to the documents in the case between Indonesia and
Malaysia and that it was not until the oral phase of the present proceedings
that the two Parties publicly stated which treaties they considered to be in
issue in their respective claims to Pulau Ligitan and Pulau Sipadan. The Court
observes, however, that the Philippines must have full knowledge of the docu-
mentary sources relevant to its claim of sovereignty in North Borneo. While the
Court acknowledges that the Philippines did not have access to the detailed
arguments of the Parties as contained in their written pleadings, this did not
prevent the Philippines from explaining its own claim, and from explaining
in what respect any interpretation of particular instruments might adversely
that claim.
In outlining that claim the Philippines has emphasized the importance of
the instrument entitled “Grant by Sultan of Sulu of territories and lands on
the mainland of the island of Borneo” (hereinafter “the Sulu-​Overbeck grant
of 1878”). This instrument is said by the Philippines to be its “primal source”
of title in North Borneo. The Philippines interprets the instrument as a lease
and not as a cession of sovereign title. It also acknowledges that the territo-
rial scope of the instrument described in its first paragraph (“together with all
the islands which lie within nine miles from the coast”) did not include Pulau
Ligitan and Pulau Sipadan.

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The Court observes, however, that the Philippine claims as shown on the
British map submitted to the Court by the Philippines during the oral proceed-
ings, do not coincide with the territorial limits of the grant by the Sultan of
Sulu in 1878. Moreover, the grant of 1878 is not in issue as between Indonesia
and Malaysia in the case, both agreeing that Pulau Ligitan and Pulau Sipadan
were not included in its reach. Also, the question whether the 1878 grant is
to be characterized as a lease or a cession does not form part of the claim to
title of either Party to the islands in issue. Neither Indonesia nor Malaysia
relies on the 1878 grant as a source of title, each basing its claimed title upon
other instruments and events. The burden which the Philippines carries under
Article 62, to show the Court that an interest of a legal nature may be affected
by any interpretation it might give or reasoning it might adduce as to its “pri-
mal source” of title, is thus not discharged.
….
The Court considers that the Philippines needs to show to the Court not
only “a certain interest in … legal considerations” (Continental Shelf (Libyan
Arab Jamahiriya/​Malta), Application to Intervene, Judgment, i.c.j. Reports 1981,
p. 19, para. 33) relevant to the dispute between Indonesia and Malaysia, but
to specify an interest of a legal nature which may be affected by reasoning or
interpretations of the Court. The Court has stated that a State seeking to inter-
vene should be able to do this on the basis of its documentary evidence upon
which it relies to explain its own claim.
Some of the instruments which the Philippines has invoked, and the sub-
missions it has made as to them, may indeed have shown a certain interest in
legal considerations before the Court in the dispute between Indonesia and
Malaysia; but as regards none of them has the Philippines been able to discharge
its burden of demonstrating that it has an interest of a legal nature that may
be affected, within the sense of Article 62. The Philippines has shown in these
instruments no legal interest that might be affected by reasoning or interpreta-
tions of the Court in the main proceedings, either because they form no part of
the arguments of Indonesia and Malaysia or because their respective reliance
on them does not bear on the issue of retention of sovereignty by the Sultanate
of Sulu as described by the Philippines in respect of its claim in North Borneo.

The Precise Object of the Intervention (paras. 84–​93)

In respect of “the precise object of the intervention” which the Philippines
states, the Court first quotes the three objects cited above.
As regards the first of the three objects stated in the Application of the
Philippines, the Court notes that similar formulations have been employed in

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other applications for permission to intervene, and have not been found by the
Court to present a legal obstacle to intervention.
So far as the second listed object of the Philippines is concerned, the Court,
in its Order of 21 October 1999 in the case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to
Intervene, recently reaffirmed a statement of a Chamber that:

[s]‌o far as the object of [a State’s] intervention is ‘to inform the Court
of the nature of the legal rights [of that State] which are in issue in the
dispute’, it cannot be said that this object is not a proper one: it seems
indeed to accord with the function of intervention.
i.c.j. Reports 1999, p. 1034, para. 14

As to the third object listed in its Application, the Court observes that
every occasional mention was made of it during the oral pleadings. But the
Philippines did not develop it nor did it contend that it could suffice alone as
an “object” within the meaning of Article 81 of the Rules. The Court therefore
rejects the relevance under the Statute and Rules of the third listed object.
The Court concludes that notwithstanding that the first two of the objects
indicated by the Philippines for its intervention are appropriate, the Philippines
has not discharged its obligation to convince the Court that specified legal
interests may be affected in the particular circumstances of this case.

Dissenting Opinion of Judge Oda

Judge Oda voted against the operative part of the Judgment, as he firmly
believed that the Philippine request for permission to intervene in the case
between Indonesia and Malaysia should have been granted.
He recalled the four previous rulings given on applications for permission to
intervene under Article 62 of the Statute, in 1981, 1984, 1990 and 1999. He stated
that his position had remained unchanged throughout these four cases. In his
view, Article 62 of the Court’s Statute should be interpreted liberally so as to
entitle a State, even one not having a jurisdictional link with the parties, which
shows “an interest of a legal nature which may be affected by the decision in
the case” to participate in the case as a non-​party. He recalled that he had also
enunciated that view in a lecture given to the Hague Academy of International
Law in 1993.
Judge Oda was further of the view that where participation as a non-​party is
permitted, it is not for the intervening State to prove in advance that its interest
will be affected by the decision in the case. He considered that without par-
ticipating in the merits phase of the case, the intervening State has no way of

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The Philippines and the International Court of Justice 153

knowing the issues involved, particularly when it is refused access to the writ-
ten pleadings. Thus, if a request for permission to intervene is to be rejected,
he considered that the burden should be placed on the parties to the principal
case to show that the interest of the third State will not be affected by the deci-
sion in the case.
In Judge Oda’s view, the question of whether, in fact, an intervening State
does or does not have an interest of a legal nature can only be considered in the
merits phase. He said that after having heard the views of the intervening State
in the main case, the Court might, after all, find in some cases that the third
State’s interest will not be affected by the decision in the case.
Judge Oda then went on to say that present proceedings had been dealt with
in a way widely at variance with the foregoing. The Philippines had learned of
the subject matter of the dispute between Indonesia and Malaysia specified in
Article 2 of the Special Agreement of 31 May 1997, but still did not know how
the two Parties would present their position concerning sovereignty over the
two islands. At best, the Philippines could speculate that its interests in North
Borneo might be affected depending on what Indonesia and Malaysia would
say in the principal case about the two islands. As a result of the objections by
Indonesia and Malaysia, the Philippines had been refused access to the Parties’
written pleadings and thus was still not in a position to know whether or not its
interests may, in fact, be affected by the decision of the Court in the principal
case. In seeking permission to intervene, all the Philippines could do, as it did
in its Application, was to make known its claim to sovereignty in North Borneo,
which may be affected by the decision in the case.
Judge Oda considered that the burden was not on the Philippines but on
Indonesia and Malaysia to assure the Philippines that its interests would not
be affected by the Judgment to be rendered by the Court in the principal case.
He questioned whether it was really reasonable—​or even acceptable—​for
Indonesia and Malaysia to require the Philippines to explain how its interest
may be affected by the decision in the case, while they concealed from it the
reasoning supporting their claims in the principal case. He said that at the
time it filed its Application for permission to intervene, and at least until the
second round of oral pleadings, the Philippines could not have known how
the respective claims of Indonesia and Malaysia to the two islands in ques-
tion would relate to its own claim to sovereignty over North Borneo. He stated
that the whole procedure in this case struck him as being rather unfair to the
intervening State. He believed that the argument concerning “treaties, agree-
ment and any other evidence” could not, and should not, have been made until
the Philippines had been afforded an opportunity to participate in the princi-
pal case.

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Separate Opinion of Judge Koroma

In his separate opinion, Judge Koroma stated that, although he had supported
the Judgment, he could not express unqualified adherence to some of the posi-
tions reached in the Judgment.
From his perspective, the wider meaning given by the Court to “decision”
in Article. 62 as including not only the dispositif but the reasoning of the
Judgment, though it may not be wrong, is not free from creating doubts and
difficulties and could restrain the Court from declaring the law or giving full
interpretation to the legal instrument or issues before it in a particular case, for
fear that a previous interpretation of a legal instrument may come to haunt it
in a future claim yet to be submitted to it.
In Judge Koroma’s view, it is the role of the Court, in performing its judicial
function to declare the law and every case should be decided on its merits,
taking into consideration all the issues of law and fact before it. For him, the
Court’s decision resides in the dispositif, as it is the dispositif which embodies
the findings of the Court in response to the submissions made by parties in a
particular case. He also observed that whether an application to intervene in a
particular case is successful or not, the decision of the Court in that particular
case cannot be considered res judicata for a State not a party to the dispute
before the Court and in the light of Article 59 of the Statute of the Court that
“[t]‌he decision of the Court has no binding force except between the parties
and in respect of that particular case”.
If the decision is considered non-​binding for a State not a party to the dis-
pute, it follows that the Court’s reasoning cannot be considered of a binding
nature either.
Judge Koroma concluded that Article 62 should therefore not have been
interpreted in such a way that it may prevent the Court from properly perform-
ing its judicial function or require a State to exercise undue vigilance regarding
the reasoning of the Court in reaching its decision in a case in which that State
is not a party.

Declaration of Judge Parra-​Aranguren

Notwithstanding his vote for the operative part of the Judgment, Judge Parra-​
Aranguren considers it necessary to state that, in his opinion, Article 62 of the
Statute refers only to the dispositif part of the Judgment in the main case. The
findings or reasoning supporting the future Judgment of the Court in the main
case are not known at this stage of the proceedings. Therefore, it is impossible
to take them into consideration, as the majority maintains (para. 47), in order
to determine whether they may affect the legal interest of the State seeking for
permission to intervene. Consequently, Judge Parra-​Aranguren cannot agree

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with other paragraphs of the Judgment which, after examining certain doc-
uments, conclude that the Philippines’ legal interest may not be affected by
their interpretation.

Declaration of Judge Kooijmans

Judge Kooijmans fully concurs with the Court’s finding that the Philippines has
not demonstrated that its legal interest may be affected by the Court’s decision
in the case between Indonesia and Malaysia on sovereignty over Pulau Ligitan
and Pulau Sipadan and that consequently its Application for permission to
intervene cannot be granted.
He is, however, of the opinion that the Court could and should have given
more attention to the requirement it formulated itself, when it said that the
Philippines “must explain with sufficient clarity its own claim to North Borneo
and the legal instruments on which it is said to rest” (paragraph 60 of the
Judgment). He feels that the Philippines, by not addressing highly relevant
issues which were raised during the oral proceedings, failed to provide the
Court with sufficient clarity regarding its claim and that the Court should have
said so explicitly.
This point is not only of importance from a legal point of view. it also has
practical implications.
It is sometimes said that third-​party intervention basically is at odds with
the system of consensual jurisdiction; in order to allay fears that States might
be less inclined to submit disputes to the Court if they run the risk of a third
State being granted too easily permission to intervene, the Court should for
reasons of judicial policy give special attention to the specificity of the legal
interest mentioned in Article 62, paragraph 1, of the Statute and to the plausi-
bility of the claim which is at its origin.

Separate Opinion of Judge ad hoc Weeramantry

Judge Weeramantry agreed with the decision of the Court but considered this
an appropriate occasion to examine the question of intervention in interna-
tional law because of the dearth of judicial authority on the question and the
increasing importance of intervention procedures will acquire in the more
closely interrelated world of the future. The opinion examines the wide dis-
cretion of the Court under Article 62 and the principles to be extracted from
comparisons and contrasts between domestic and international law relating
to intervention. It notes value of such principles to the Court in the exercise
of its discretion under Article 62. The opinion concludes with observations on
the problem of a jurisdictional link, an interest of a legal nature, the precise

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object of intervention, the lateness of the intervention and the confidentiality

of pleadings.

Separate Opinion of Judge ad hoc Franck

Judge Franck agrees with the Judgment of the Court and with its reasoning. He
adds, however, that the Philippine Application is also barred by a supervening
legal principle: the right of non-​self-​governing people to exercise their right
of self-​determination. This right has been confirmed by treaties, judgments of
this Court and resolutions of the General Assembly. It is, quite simply, pre-​
eminent in modern international law.
In the instance of North Borneo’s decolonization, Judge Franck believes,
this right was implemented in 1963 through elections observed by the repre-
sentative of the United Nations Secretary-​General, who certified the fairness
and conclusiveness of the popular choice made by the voters in favour of fed-
eration with Malaysia. This was acted upon by the United Nations General
Assembly’s Committee on Non-​Self-​Governing Territories.
In Judge Franck’s view, the Court is bound to take judicial notice of the
momentous international legal development brought about by the adoption
and implementation of the right of self-​determination. Accordingly, whatever
interest the Philippines might have inherited from the Sultan of Sulu—​even
were it to be fully demonstrable—​cannot now be held to prevail over a vali-
dated exercise of so fundamental a right. Since the claim is barred by law, the
Philippines cannot possibly be said to have a legal interest in further ventilat-
ing it in this forum.

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 ­c hapter 5

Sources of International Law

Overview

This chapter will show how the different “sources of international law” iden-
tified in the icj Statute,1 which are binding on the Philippines as a signatory
to the Statute,2 are applied domestically in Philippine national law. That legal
regime, on the other hand, is founded on the Philippine Constitution, which
lays down the structure whereby international law rules become binding on
the Philippines and how they can be invoked before Philippine courts. The
main source of confusion in Philippine law is the conflation of two sets of
concepts.
One, the question of whether a rule of international law is binding upon the
Philippine state has two aspects, namely, external vis-​à-​vis other states (how
an international obligation becomes binding upon the Philippines) and inter-
nal vis-​à-​vis its own citizens or persons within its jurisdiction (how an inter-
national obligation is “incorporated” into national law and can be invoked
by persons against the state). This is amply discussed below in the excerpts
from the treatise of Merlin M. Magallona, Professor of International Law at the
University of the Philippines.
Two, the question of how international law rules become domestic law is
befuddled by the changing and malleable interpretations of the Incorporation
Clause, the constitutional clause which says that “generally accepted princi-
ples of international law” are “incorporated … as part of the law of the land.”
This has been cited to “incorporate” the two non-​treaty sources of law under
the icj Statute, namely, “international custom, as evidence of a general
practice accepted as law”, and “general principles of law recognized by civi-
lized nations.”3 However, the Philippine Supreme Court has also applied the

1 i.c.j. Statute art. 38, ¶ 1.

2 U.N. Charter art. 92 (the icj Statute “forms an integral part of the United Nations Charter”)
and U.N. Charter art. 93, ¶ 1(“All Members of the United Nations are ipso facto parties to the
Statute of the International Court of Justice.”).
3 See discussion in Aloysius P. Llamzon, The Generally Accepted Principles of International Law”
as Philippine Law: Towards a Structurally Consistent Use of Customary International Law in
Philippine Courts, 47 Ateneo L.J. 243, 264–​65 (2002).

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004469723_007

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158  Chapter 5

Incorporation Clause to make ratified treaties binding domestically, and indeed

make unratified treaties binding domestically qua international custom.
The Supreme Court’s approaches have been criticized as “oscillating”, “epi-
sodic” and “arbitrary” that call for a coherent and systematic framework.4 It is
here proposed to look at the Philippine treatment of international law obliga-
tions on two axes, each dealing with a different normative tension.
The vertical axis deals with the tension between national sovereignty and
international governance. The horizontal axis deals with the tension between
democratic politics and the institutional constraints of republican governance.
In the Philippines, given its colonial past, the default presumption on the ver-
tical axis should favor the national over the international. But given the anti-​
dictatorship roots of its current constitution, the default presumption on the
horizontal axis should favor the institutional and accountability constraints
embodied in the separation of constitutional powers over the raw power of
democratic majorities.5
The Supreme Court decisions below demonstrate the unsteady hold of the
post-​Marcos normative consensus embodied in the 1987 Constitution, result-
ing in ad hoc judicial accommodations made in the ensuing three decades.6

Key Constitutional Clauses

The current Philippine Constitution was adopted in 1987 after the ouster of
the President Ferdinand Marcos in the peaceful uprising known in Philippine
history as the People Power Revolution of 1986. Accordingly, the Constitution
reflects the patriotic (“nationalist”) and republican aspirations of the demo-
cratic movement that brought about the fall of the Marcos dictatorship.
The Constitution restored the traditional separation of powers that existed
before Marcos seized power and began his one-​man rule in 1972, vested in the
familiar branches of government:

–​ legislative (vested in a bicameral Congress, comprising a Senate that is

nationally elected, and a House of Representatives elected by district and
by party-​list);7

4 Id., at 244–​45.
5 Raul C. Pangalangan and Zoilo A. Velasco, Treaties and Philippine Law, in Yogesh Tyagi,
Asian Treaty Practice (Spinger, Singapore, to be published).
6 Id.
7 1987 Const. art. vi, §§ 1–​2.

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Sources of International Law 159

–​ executive (embodied by a President nationally elected by direct

vote)8; and
–​ judicial (comprising the Supreme Court and lower courts) branches.9

It contains four key provisions on international law. The first two provisions
are most important, what are referred to here as the Treaty-​Making Clause and
the Incorporation Clause.
The Treaty-​Making Clause appears, significantly, in the section dealing with
the Executive Department, underlining the primacy of the President in foreign
relations but providing for shared powers with the Senate.

No treaty or international agreement shall be valid and effective unless

concurred in by at least two-​thirds of the Members of the Senate.10

The Senate has twenty-​four members and its required concurrence calls for
sixteen votes.
Under the Vienna Convention on the Law of Treaties, this clause spells out
the “international act … whereby a State establishes on the international plane
its consent to be bound by a treaty.”11 Notice that the Treaty-​Making Clause
says that a treaty thus becomes “valid and binding.” Magallona states that this
clause deals with both the external and internal aspects of the treaty, that is to
say, that the treaty thus becomes binding internationally and effective domesti-
cally as national law. Some Supreme Court decisions below suggest that it deals
solely with the external binding aspect of the treaty. By that account, a treaty
becomes binding internationally under Treaty-​Making Claus, but it needs the
Incorporation Clause to make it enforceable domestically.
The Incorporation Clause appears in the Constitution’s Declaration of
Principles and State Policies, which contain the directive principles of the
Philippine constitutional order.

The Philippines … adopts the generally accepted principles of interna-

tional law as part of the law of the land.12

8 1987 Const. art. vii, § 1.

9 1987 Const. art. viii, § 1.
10 1987 Const. art. vii, § 1.
11 Vienna Convention on the Law of Treaties, art. 2.1.b., Jan. 27, 1980, 1155 u.n.t.s. 331 (here-
inafter vclt).
12 1987 Const. art. ii, § 2.

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The Supreme Court has read this to “incorporate” international law obligations
into municipal law. Thus, in Philippine practice, the term “generally accepted
principles of international law” in the Incorporate Clause covers all the sources
of international law under the icj Statute, including treaty, custom, and gen-
eral principles of law. However, under the Magallona theory discussed above,
the Incorporation Clause should apply only to non-​treaty sources of obliga-
tion, namely, custom and general principles of law. Treaties don’t have to be
“adopted … as part of the law of the land” via the Incorporation Clause because
they already become “valid and effective” via the Treaty-​Making Clause.13
Externally, the Incorporation Clause has been read to make non-​treaty
sources of international law, namely, custom and “general principles of law”,
binding on the Philippines. Indeed the Supreme Court has characterized the
Incorporation Clause and the Treaty-​Making Clause, as the “two ways through
which international obligations become binding” upon the Philippine state.14
To summarize, as regards the external aspect of international obligation,
treaties become binding under the Treaty-​Making Clause, whereas custom and
“general principles of law” become binding under the Incorporation Clause. As
regards the internal aspect of how international law creates rights and duties
in domestic law, the “entry points”15 are likewise different: on one hand, trea-
ties through the Treaty-​Making clause, and on the other, custom and “general
principles of law” through the Incorporation Clause.
The Military Bases Clause governs sui generis treaties pertaining to foreign
military bases, “a historical irritant given the Philippines’ colonial experience
under the United States until 1946 and the continued American military pres-
ence afterwards.”16

[F]‌oreign military bases, troops, or facilities shall not be allowed in the

Philippines except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the votes cast
by the people in a national referendum held for that purpose, and recog-
nized as a treaty by the other contracting State.17

13 Professor of Law and former Law Dean, University of the Philippines; former
Undersecretary of Foreign Affairs, Republic of the Philippines (2001–​04).
14 Air Canada v. Commissioner of Internal Revenue, g.r. No. 169507, 11 January 2016.
15 Merlin M. Magallona, The Philippine Constitution and International
Law 37–​38 (2013).
16 Pangalangan and Velasco, supra note 5.
17 1987 Const. art. xviii, § 25 [emphasis added].

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As will be discussed below, military bases treaties are subject to an additional

requirement, namely, that these be “recognized [equally] as a treaty by the
other contracting State.”
The Judicial Review Clause provides that the validity of treaties is subject to
judicial review and that the test of validity is the Constitution.

The Supreme Court shall have the [] power [to r]eview … [a]‌ll cases in
which the constitutionality or validity of any treaty, international or
executive agreement … is in question.18

In addition, the Constitution states that the Supreme Court must hear such
cases in plenary.19 Almost all the cases discussed below consist of decisions
rendered by the Philippine Supreme Court. Under the Civil Code of the
Philippines, these decisions have the force of law.

Judicial decisions applying or interpreting the laws or the Constitution

shall form a part of the legal system of the Philippines.20

Executive Agreements

The Treaty-​Making Clause requires Senate concurrence to all “treaties and

international agreements.” Yet the Philippines today enters into what it calls
Executive Agreements, that is, agreements by the Philippines with other states
that are signed by the President or his representative in the executive branch
alone without Senate concurrence.
There is actually no textual basis for this. The Treaty-​Making Clause requires
Senate concurrence of all “treaties and international agreements.” However,
in the Constitution’s section on the judiciary, we find the expression “treaty,
international or executive agreement” as matters subject of judicial review.
Note too that the distinction between full-​fledged treaties and mere Executive
Agreements exists only as a domestic constitutional issue. It is not an issue of
international law, because inter-​state agreements, whether or not submitted

18 1987 Const. art. viii, § 5.2.a.

19 1987 Const. art. viii, § 4.2.
20 Rep. Act No. 386 (1950), art. 8.

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for Senate concurrence, are binding treaties under the Vienna Convention on
the Law of Treaties.21
This question becomes even more complicated with the successive military
agreements signed with the United States. There are actually three possible
forms for such agreements under the Constitution, namely, as a mere Executive
Agreement, as a full-​fledged treaty (that needs Senate concurrence), or as a
military bases treaty (that, in addition, must be signed likewise as a treaty
by the other state). While there are elaborate rules and procedure governing
this, in the end it is the President who chooses which form an agreement will
take, and the Courts have been deferential to the President’s choices. That this
decision is more political than legal is best shown by the fact that the Visiting
Forces Agreement (vfa) with the United States was submitted by President to
the Senate as a full-​fledged treaty under the Treaty-​Making Clause but, when
it was challenged before the Supreme Court, the Court upheld it under the
even more stringent requirements of the Military Bases Clause. Even more, the
Philippines has vfa s with other states and these have typically been signed as
mere Executive Agreements.
Finally, Executive Agreements have, of late, been used to circumvent anti-​
corruption legislation, e.g., when the government signs foreign loan agree-
ments that require the Philippines to exempt the projects from the bidding
requirements in procurement laws. These agreements are then characterized
as Executive Agreements, which are then incorporated as part of domestic
law, and which then effectively carve out the exception to the bidding require-
ments in the co-​equal procurement law.

Role of the Legislative Branch

When constitutional safeguards were restored in the post-​Marcos Constitution,

the Legislature, through the Senate, was given the power to check the President’s
foreign affairs powers, namely, by requiring concurrence to the ratification of
treaties and international agreements.
The most prominent such example was when the Senate ended ninety
years of American military presence on Philippine soil. In 1947, as one of the
conditions for the United States’ “grant” of independence, the Philippines
signed a treaty with the United States authorizing the “use of installations in

21 vclt, supra note 11, art. 2.1.a (“ ‘treaty’ means an international agreement concluded
between States in written form and governed by international law … whatever its partic-
ular designation”).

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the Philippine territory by United States military personnel.” When this treaty,
the Military Bases Agreement, was about to expire in 1991, the Philippine
Senate withheld its concurrence to the proposed rp-​u s Treaty of Friendship,
Cooperation and Security, which would have extended the presence of US mil-
itary bases in the Philippines.22
What specifically is the Senate’s role in the treaty-​making process? The
Supreme Court has characterized it as either legislative in character, that is to
say, to make the international agreement binding as part of domestic law,23 or
as a constitutional check on the President’s powers.24

“Soft Law”

Significantly, the Supreme Court has also recognized the emergence of “soft
law”, and—​even before the covid-​19 pandemic—​has actually identified in
the Milk Code case25 the measures adopted by the Philippines to carry out
“soft law” obligations under World Health Organization issuances dealing
with the sars epidemic of 2003–​04. In Ocampo26, the Court cited the non-​
binding nature of international human rights instruments when it threw out
the opposition led by Marcos human rights victims against Marcos’s burial in
the national memorial cemetery for heroes. Finally, compare this to the two
classic cases, namely, Borovsky27 and Mejoff,28 where the Court recognized the
Universal Declaration of Human Rights for the first time, applied it via the
Incorporation Clause yet without expressly construing it as a binding source
of legal obligation.

Recommendations by Human Rights Treaty Bodies

The Philippines is a party to the International Covenant on Civil and Political

Rights.29 It also recognizes the competence of the Human Rights Committee

22 Bayan v. Zamora, infra note 74.

23 Guerrero’s Transport Services, Inc. v. Blaylock Trans. Services Employees Association-​
Kilusan, infra note 98.
24 Tolentino v. Secretary of Finance, infra note 95.
25 Pharmaceutical and Health Care Association of the Philippines v. Duque, infra note 69.
26 Ocampo v. Enriquez, infra note 63.
27 Borovsky v. Commissioner of Immigration, infra note 70.
28 Mejoff v. Director of Prisons, infra note 72.
29 United Nations, Treaty Series, vol. 999, p. 171 (16 December 1966).

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under the first Optional Protocol30 “to receive and consider communications
from individuals … who claim to be victims of a violation.” The Committee
“shall forward its views to the State Party concerned and to the individual.”31
Several such “communications” have been filed against the Philippines before
the Committee. Two of them are featured in this book.
The first, Mariano Pimentel (2007), was filed by the Marcos human rights
victims who protested the domestic procedural impediments to the enforce-
ment of the damages awarded by an American court. The case is excerpted in
Ch. 7 (Human Rights Cases from the Marcos Dictatorship).
The second, Phillip Pestaño (2010), was filed by the parents of a young navy
officer who died on board a navy ship after he objected to the loading of unau-
thorized cargo of logs and after he also learned that navy vessels were being
used to transport illicit drugs. Several of his cohorts had also since died under
similarly questionable circumstances. The Navy had officially declared that
Pestaño had committed suicide but that was disputed by a Senate inquiry into
the matter.

Termination and Withdrawal from a Treaty

The issue of treaty termination arose with 2018 withdrawal from the Rome
Statute of the International Criminal Court by President Rodrigo R. Duterte,
and likewise his statements that he will restore the death penalty and thus
effectively withdraw from the Second Optional Protocol to the International
Convention on Civil and Political Rights.32
The constitutional text is silent on this matter. The Treaty-​Making Clause
speaks only of Senate concurrence in the ratification of treaties but not on
withdrawal or abrogation of treaties. This yields two possibilities. On one hand,
there is no need for Senate concurrence because of the President’s primacy
in foreign affairs33 and such is not required by the constitutional text. On the
other hand, it is argued that since the power to bind the Philippines to a treaty

30 United Nations, Treaty Series, vol. 999, p. 171 (16 December 1966).
31 Id., at article 5.
32 The Second Optional Protocol to the International Convention on Civil and Political
Rights was ratified as an executive agreement.
33 See Pimentel v. Executive Secretary, infra note 181, and Vinuya v. Romulo, infra note 169,
citing Justice Reynato Puno’s dissent in Secretary v. Lantion, infra note 160 (“[T]‌he pres-
idential role in foreign affairs is dominant and the President is traditionally accorded a
wider degree of discretion in the conduct of foreign affairs.”).

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is a power jointly exercised by the President and the Senate, then the power
to unbind the Philippines is symmetrically joint as well. In other words, the
Constitution itself provides that signing treaties is not the exclusive domain of
the President, thus conversely its un-​making cannot be the President’s power
alone either. If the Senate’s role is seen as one of checks and balances, then the
power to sign and unsign treaties cannot be the President’s unilateral decision.
Indeed, the Supreme Court has stated, albeit by dictum, that since treaties,
once approved by the Senate, have the power and status of law, conversely, “only
Congress with its legislative power, can make laws, and alter or repeal them.”

[T]‌he making of the treaty having been undertaken under the joint aus-
pices of the President and the Senate, its amendment or revision must
similarly be undertaken by both agencies of the State as directed by the
Constitution.34

While Adolfo pertains to amendment or revision of a treaty obligation, the

same principle could very well apply to termination or withdrawal since the
difference is merely one of degree of change but the essential issue is the same.
Indeed, the Philippine Senate has very recently been proactively asserting
its power of concurrence in treaty withdrawal.
In December 2016, the Senate inserted in its concurrence resolution a sepa-
rate clause that requires the President to seek its concurrence as well for with-
drawal from the treaty.

Resolved, finally, That the President of the Philippines may, with the con-
currence of the Senate, withdraw the membership of the Philippines from
the Asian Infrastructure Investment Bank.35

Significantly, this clause was not present in original Resolution submitted

by the Senate Committee on Foreign Relations, and was deliberately added
when the Resolution was eventually adopted.36 (The Senate has since adopted
twenty similar concurrence resolutions containing such a clause.)37

34 Adolfo v. Court of First Instance, infra note 101.

35 S. Res. 33, 17th Cong. (2016). Resolution Concurring in the Ratification of the Articles of
Agreement of the Asian Infrastructure Investment Bank (Adopted). [emphasis added].
36 S. Res. 241, 17th Cong. (2016).
37 S. Res. 305, 18th Cong. (pending in the committee as of 3 February 2020). Resolution
Expressing The Sense Of The Senate, That Termination Of, Or Withdrawal From, Treaties
And International Agreements Concurred In By The Senate Shall Be Valid And Effective
Only Upon Concurrence By The Senate.

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In February 2017, 14 of 24 senators signed a Resolution “expressing the sense

of the Senate that termination of, or withdrawal from, treaties … shall be valid
and effective only upon concurrence by the Senate.”38 The Resolution was care-
ful to cover only such “treaties and international agreements concurred in by
the Senate”, that is to say, excluding executive agreements. This Resolution was
eventually not adopted.39
However, soon after, in March 2017, the Senate approved another concur-
rence resolution—​this time the 2016 Paris Agreement on climate change—​
with a final proviso stating that “the President of the Philippines may, with the
concurrence of two-​thirds of all the members of the Senate, withdraw from the
Agreement.”40
As of this writing, two petitions have already been filed with the Supreme
Court challenging the President’s authority to unilaterally withdraw from a
treaty.
On 17 March 2018, the Philippines withdrew from the Rome Statute of the
International Criminal Court. Five senators filed on 16 May 2018 a petition for
certiorari and mandamus before the Supreme Court to nullify the withdrawal,
arguing that treaty withdrawal needs the concurrence of at least two-​thirds
of the members of the Senate. On 21 July 2021, the Supreme Court released its
decision, dated 16 March 2021, that the “petitions were moot when they were
filed” and thus there was no “actual, live controversy” for the court to remedy.
On 11 February 2020, the Philippines sent a notice of termination of the
Visiting Forces Agreement with the United States41 to the U.S. Embassy in
Manila. On 2 March 2020, the Senate, voting 12–​0 with seven abstentions,
adopted a Resolution asking the Supreme Court to rule on a lacuna legis “as
to whether or not the concurrence of the Senate is necessary for the termi-
nation of any treaty earlier concurred in by the Body.”42 The Philippines

38 S. Res. 289, 17th Cong. (pending Second Reading as of 15 February 2017). Resolution
Expressing The Sense of The Senate That Termination of, Or Withdrawal from, Treaties
And International Agreements Concurred In by The Senate Shall Be Valid And Effective
Only Upon Concurrence by The Senate.
39 Id.
40 S. Res. 42, 17th Cong. (2017). Resolution Concurring in the Accession to the Paris
Agreement.
41 Agreement between the Government of the Republic of the Philippines and the
Government of the United States of America Regarding the Treatment of the United
States Armed Forces Visiting the Philippines (10 February 1998).
42 S. Res. 39, 18th Cong. (2020). Resolution Asking the Honorable Supreme Court of the
Philippines To Rule on Whether Or Not the Concurrence of the Senate Is Necessary in the
Abrogation of A Treaty Previously Concurred In by the Senate.

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twice suspended the termination of the vfa, in June43 and November 202044,
pending treaty renegotiation. Finally, in July 2021, the Philippines completely
“recalled” the abrogation of the vfa45.

i icj Statute

Article 38. The Court, whose function is to decide in accordance with interna-
tional law such disputes as are submitted to it, shall apply:
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 teach-
ings of the most highly qualified publicists of the various nations, as sub-
sidiary means for the determination of rules of law.46
Article 59. The decision of the Court has no binding force except between the
parties and in respect of that particular case.

ii The Treaty Clause in Relation to the Incorporation Clause

A Magallona on the Incorporation Clause47

The Incorporation Clause of the Constitution reads in Section 2, Article ii:

The Philippines … adopts the generally accepted principles of interna-

tional law as part of the law of the land. ….

43 Statement: On the Suspension of the Pending Termination of the PH-​ US Visiting

Forces Agreement (3 June 2020), at https://​dfa.gov.ph/​dfa-​news/​statements-​and-​
advisoriesupdate/​26892-​statement-​on-​the-​suspension-​of-​the-​pending-​termination-​of-​
the-​ph-​us-​visiting-​forces-​agreement.
44 sStatement of Foreign Affairs Secretary Teodoro L. Locsin, Jr. on VFA Extension (11
November 2020), at https://​dfa.gov.ph/​dfa-​news/​statements-​and-​advisoriesupdate/​
28141-​statement-​of-​foreign-​affairs-​secretary-​teodoro-​l-​locsin-​jr-​on-​vfa-​extension.
45 Remarks of Foreign Affairs Secretary Teodoro L. Locsin, Jr. on the Visiting Forces Agreement
and the Visit of United States Secretary of Defense Lloyd J. Austin III (30 July 2021), at https://​
dfa.gov.ph/​statement-​remarks-​apc/​29296-​remarks-​of-​foreign-​affairs-​secretary-​teodoro-​
l-​locsin-​jr-​on-​the-​visiting-​forces-​agreement-​and-​the-​visit-​of-​united-​states-​secretary-​of-​
defense-​lloyd-​j-​austin-​iii.
46 i.c.j. Statute art. 38.1.
47 Magallona, supra note 15, at 19–​20.

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It is by this provision that the Constitution incorporates a body of principles of

international law into Philippine law. Since these principles are “part of the law
of the land,” they are applied in domestic law as Philippine law. Intriguingly
enough, if they assume the status of Philippine law, do they cease to be inter-
national law?
….
Incorporation (or internalization) has given rise to the dual character of
these principles. They remain in the nature of international law operating on
the international plane governing the relations of States and other subjects of
international law. At the same time, they are a category of national law bind-
ing upon subjects of Philippine law. The former may be referred to as objective
international law and the latter Philippine practice of international law. Their
respective modalities of operation in each legal system are not interchange-
able; failure to observe this distinction resulting from their interchangeability
becomes the crux. In particular, the application of these principles as national
law in the context of international law operating on the international plane
would give rise to anomaly in judicial reasoning, as exemplified in the appli-
cation of pacta sunt servanda. This principle of general international law
mandates that “Every treaty in force is binding upon the parties to it and must
be performed by them in good faith”.48 The ponencia in Tañada vs. Angara49
invokes this principle as “part of the law of the land” in the Incorporation
Clause, a case in which the very constitutionality of a treaty is under attack and
the Supreme Court is called upon to exercise its review power which empow-
ers it to strike down a treaty as unconstitutional or invalid.50
….
The heart of the enigma lies in the fundamental problem that the
Incorporation Clause is designed by the Constitution as the transformative
process by which a body of principles in objective international law becomes
national law, but the identity of these principles as individualized is not known.
It is a serious deficiency of a normative system to institute norms or principles
as law, and in the same process what is constituted as law is deprived of its pre-
condition of legality, namely, the individual identity of the principles in ques-
tion, which lends it the necessary element of enforceability and effectiveness.

48 As codified in Article 26 of the Vienna Convention on the Law of Treaties.

49 g.r. No. 118295, 02 May 1997. This case pertains to the constitutionality of the Agreement
Establishing the World Trade Organization (wto) and the annexed agreements.
50 See 1997 Const. art. viii, § 5(2)(a).

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B Magallona on Constitutional “Entry Points” for Treaty vis-​à-​vis

Custom51
In one other respect, the Treaty Clause invites clarification. On its face the con-
stitutional text, quoted above, gives the impression that by Senate concurrence
alone a treaty becomes national law and as such becomes “valid and effective”.
Note that if a treaty, multilateral in character, has not yet entered into force by
its own provisions when Senate concurrence takes place, such concurrence
by itself cannot make it valid and effective as national law. A treaty that has
not yet attained the status of international law for the reason that on its own
account it has not yet taken effect cannot be transformed yet into national
law. Since a treaty in that case by its own force has not yet become binding
international law, there is nothing that Senate concurrence can transform into
national law.
Senate concurrence by itself may be unable to make a treaty “valid and
effective” under the Treaty Clause because of the means by which the con-
tracting States express their consent to be bound by a treaty. If such consent
is expressed by means of “exchange of instruments constituting a treaty”, as
permitted under Articles 11 and 13 of the 1969 Vienna Convention on the Law
of Treaties, Senate concurrence becomes the basis by which the treaty pursu-
ant to its own provision will enter into force. Most likely that exchange may
indicate that the constitutional requirements of the parties have been com-
pleted. In which case, it is the exchange that determines the entry into force
of the treaty, much later than Senate concurrence. Or, in particular, in the case
of the 1969 Vienna Convention on the Law of Treaties, in addition to ratifi-
cation, undertaken by Senate concurrence, the treaty may provide that “the
instrument of ratification shall be deposited with the Secretary-​General of the
United Nations”. In which case, the entry into force is based on “the date of
deposit of the thirty-​fifth instrument of ratification”.52
Hence, there may be a significant time gap between Senate concurrence and
the moment the Philippines becomes a party to the treaty in question. In this
light, a treaty in the constitutional sense becomes “valid and effective” if two
factors converge, namely: (a) it has entered into force by its own provisions,
and (b) it has been concurred in by the Senate as required by the Treaty Clause.
….
In an obiter dictum, Secretary of Justice vs. Lantion53 declares as follows:

51 Magallona, supra note 15, at 35–​38.

52 See Articles 82 and 84 of this Convention.
53 g.r. No. 139465, 18 January 2000 [emphasis added].

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… Under the doctrine of incorporation, rules of international law form

part of the law of the land and no further legislative action is needed to
make such rules applicable in the domestic sphere. This status of treaties
springs from the constitutional mandate itself.

This obiter appears to be of the view that conventional or treaty norms of inter-
national law are “part of the law of the land” for the reason that they are as well
considered by the Supreme Court as “generally accepted principles of interna-
tional law” under the Incorporation Clause. This may be interpreted to mean
that the Incorporation Clause is a method by which both customary norms
and conventional rules of international law are internalized into Philippine
law and become part of it.
Kuroda vs. Jalandoni54 seems to have begun this line of thinking, in which
the Court dealt with the issue as to whether The Hague Convention and
the Geneva Convention on the rules on land warfare were binding on the
Philippines although it was not a party to them. In affirming that the norms of
these Conventions “form part of and are wholly based on the generally accepted
principles of international law” and were therefore binding on the Philippines
“as part of the law of the nation” under the Incorporation Clause, the Court
appeared in fact to have given primacy to treaty rules as the content of the
Incorporation Clause, as follows:

Such rules 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 as
contained in treaties to which our government may have been or shall be
a signatory.55

An alternative approach lies in characterizing the Hague and the Geneva

norms as customary international law and in their application as such, not as
treaty rules of the said Conventions. As customary norms—​or general interna-
tional law—​they acquire the status of “generally accepted principles of inter-
national law” under the Incorporation Clause.
Recall that the international legal order maintains two principal sources
of law: international convention or conventional international law, and

54 g.r. No. L-​2662, 26 March 1949.

55 Id. [emphasis added].

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international custom or customary international law. Their juridical charac-

ter keeps them distinct and separate: whereas international convention binds
only States that are parties to the convention or treaty, international custom is
binding on all States.
In providing the modalities for the internalization of these two sources of
international law into Philippine law, the constitutional framework is struc-
tured such that each is assigned its own entry point by which it becomes “part
of the law of the land”; the Incorporation Clause for customary norms and the
Treaty Clause for the conventional or treaty rules. By the juridical nature of
these sources, the entry points or methods of entry as part of domestic law
are not interchangeable. Treaty rules as such cannot be subsumed under the
Incorporation Clause since the Constitution provides a distinctive method in
the Treaty Clause for transforming a convention or treaty into national law.
It is absurd to say that treaty rules without the benefit of Senate concurrence
may assume a binding character as national law by reason of the Incorporation
Clause. First, as treaty rule it does not have the status of international law with
respect to the Philippines as a non-​party. Secondly, by reason of the restricted
binding character of treaties it may not qualify as a “generally accepted prin-
ciple of international law”, plus the fact that as a treaty rule it is subject to
reservations, termination and withdrawal of State parties. Hence, by its nature
it is not binding on all States. Most likely the notion that a treaty rule becomes
national law comes about after the treaty itself of which it is a part has already
been concurred in by the Senate. On account of concurrence, the treaty rule
becomes “valid and effective” as national law under the Treaty Clause. At such
time, the claim that it is “part of the law of the land” under the Incorporation
Clause is indeed a plea that it be made national law twice: in the first instance,
through the Treaty Clause and, later, under the Incorporation Clause, a phe-
nomenon alien to both Philippine jurisprudence and international law.

C Magallona on Why Customary International Law Cannot Be Invoked

Domestically without the Incorporation Clause56
Significantly, in applying the Universal Declaration of Human Rights and
the International Covenant on Civil and Political Rights, as affirmed above,
Republic explains that:

[T]‌he Court considers the Declaration as part of customary international

law, and that Filipinos as human beings are proper subjects of international

56 Magallona, supra note 15, at 25–​26.

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law laid down in the Covenant. The fact is the [“people power”] revolu-
tionary government did not repudiate the Covenant or the Declaration in
the same way it repudiated the 1973 Constitution. As the de jure govern-
ment, the revolutionary government could not escape responsibility for
the State’s good faith compliance with its treaty obligations under inter-
national law.57

Absent the Incorporation Clause, Republic could not have applied human-​
rights protection as national law derived from “generally accepted principles
of international law”. It applies the Declaration, or its constituent rights, (a) as
customary international law and (b) not in the interest of Filipinos as citizens
but as human beings, as subjects of customary international law, by these two
factors signifying that Republic is applying in domestic jurisdiction objective
international law as operative in the international plane, not as Philippine law.

iii Non-​treaty Sources of International Obligation

A Republic v. Sandiganbayan (2003)58

[The Sandiganbayan is a special anti-​corruption court. It dismissed the case for
forfeiture of unexplained wealth owned by a military general who, at the time
of the overthrow of the Marcos dictatorship, was the Commanding General
of the Philippine Army. Republic Act No. 1379 declares forfeiture in favor of
the state all property acquired by a public officer which is “manifestly out of
proportion to his salary”59 The Republic appealed the dismissal. The excerpt
pertains to the legality of the search and seizure conducted a few days after
Marcos was ousted, during the period under a “revolutionary government”
President Corazon Aquino.]
Petitioner claims that the Sandiganbayan erred in declaring the properties
confiscated from Dimaano’s [the General’s alleged mistress] house as illegally
seized and therefore inadmissible in evidence. This issue bears a significant
effect on petitioner’s case since these properties comprise most of petitioner’s
evidence against private respondents. Petitioner will not have much evidence
to support its case against private respondents if these properties are inadmis-
sible in evidence.

57 Republic v. Sandiganbayan, g.r. No. 104768, 21 July 2003 [emphasis added].

58 Id.
59 Rep. Act No. 1379 (1995). Law of Forfeiture of Ill-​Gotten Wealth.

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On 3 March 1986, the Constabulary raiding team served at Dimaano’s

residence a search warrant captioned “Illegal Possession of Firearms and
Ammunition.” Dimaano was not present during the raid but Dimaano’s cous-
ins witnessed the raid. The raiding team seized the items detailed in the sei-
zure receipt together with other items not included in the search warrant. The
raiding team seized these items: one baby armalite rifle with two magazines;
40 rounds of 5.56 ammunition; one pistol, caliber .45; communications equip-
ment, cash consisting of P2,870,000 and US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding team con-
ducted the search and seizure “on March 3, 1986 or five days after the successful
edsa revolution. Petitioner argues that a revolutionary government was oper-
ative at that time by virtue of Proclamation No. 1 announcing that President
Aquino and Vice President Laurel were “taking power in the name and by the
will of the Filipino people.” Petitioner asserts that the revolutionary govern-
ment effectively withheld the operation of the 1973 Constitution which guar-
anteed private respondents’ exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an
illegal search applies only beginning 2 February 1987, the date of ratification
of the 1987 Constitution. Petitioner contends that all rights under the Bill of
Rights had already reverted to its embryonic stage at the time of the search.
Therefore, the government may confiscate the monies and items taken from
Dimaano and use the same in evidence against her since at the time of their
seizure, private respondents did not enjoy any constitutional right.
Petitioner is partly right in its arguments.
The edsa Revolution took place on 23–​25 February 1986. As succinctly
stated in President Aquino’s Proclamation No. 3 dated 25 March 1986, the edsa
Revolution was “done in defiance of the provisions of the 1973 Constitution.”
The resulting government was indisputably a revolutionary government bound
by no constitution or legal limitations except treaty obligations that the revo-
lutionary government, as the de jure government in the Philippines, assumed
under international law.
The correct issues are: (1) whether the revolutionary government was bound
by the Bill of Rights of the 1973 Constitution during the interregnum, that is, after
the actual and effective take-​over of power by the revolutionary government fol-
lowing the cessation of resistance by loyalist forces up to 24 March 1986 (imme-
diately before the adoption of the Provisional Constitution); and (2) whether
the protection accorded to individuals under the International Covenant on
Civil and Political Rights (“Covenant”) and the Universal Declaration of Human
Rights (“Declaration”) remained in effect during the interregnum.
….

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During the interregnum, the government in power was concededly a revolu-

tionary government bound by no constitution. No one could validly question
the sequestration orders as violative of the Bill of Rights because there was no
Bill of Rights during the interregnum. …
… Nevertheless, even during the interregnum the Filipino people contin-
ued to enjoy, under the Covenant and the Declaration, almost the same rights
found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure gov-
ernment, assumed responsibility for the State’s good faith compliance
with the Covenant to which the Philippines is a signatory. Article 2(1) of
the Covenant requires each signatory State “to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights rec-
ognized in the present Covenant.” Under Article 17(1) of the Covenant, the
revolutionary government had the duty to insure that “[n]‌o one shall be sub-
jected to arbitrary or unlawful interference with his privacy, family, home or
correspondence.”
The Declaration, to which the Philippines is also a signatory, provides in
its Article 17(2) that “[n]‌o one shall be arbitrarily deprived of his property.”
Although the signatories to the Declaration did not intend it as a legally
binding document, being only a declaration, the Court has interpreted the
Declaration as part of the generally accepted principles of international law
and binding on the State. Thus, the revolutionary government was also obli-
gated under international law to observe the rights of individuals under the
Declaration.
The revolutionary government did not repudiate the Covenant or the
Declaration during the interregnum. Whether the revolutionary govern-
ment could have repudiated all its obligations under the Covenant or the
Declaration is another matter and is not the issue here. Suffice it to say that the
Court considers the Declaration as part of customary international law, and
that Filipinos as human beings are proper subjects of the rules of international
law laid down in the Covenant. The fact is the revolutionary government did
not repudiate the Covenant or the Declaration in the same way it repudiated
the 1973 Constitution. As the de jure government, the revolutionary govern-
ment could not escape responsibility for the State’s good faith compliance with
its treaty obligations under international law.
….
During the interregnum when no constitution or Bill of Rights existed,
directives and orders issued by government officers were valid so long as these
officers did not exceed the authority granted them by the revolutionary gov-
ernment. The directives and orders should not have also violated the Covenant

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or the Declaration. In this case, the revolutionary government presumptively

sanctioned the warrant since the revolutionary government did not repudiate
it. The warrant, issued by a judge upon proper application, specified the items
to be searched and seized. The warrant is thus valid with respect to the items
specifically described in the warrant.

B U.S. v. Purganan, Vitug, J., Separate Opinion (2002)60

Extradition, nevertheless, does not find basis in Customary International Law
International customary law is … is one of the two (the other being trea-
ties) primary law-​creating processes of international law. Its evolution,
according to Schwarzenberger, can be traced to the early development
of a global society when international law consisted primarily of express
agreements, which the parties freely accepted as legally binding between
or among themselves. … Time hardened them into international customary
law. International customary law has two constitutive elements: (1) a general
practice of sovereign states and (2) the acceptance by the states of this gen-
eral practice as law. In the Lotus (1927) and Asylum (1950) cases, the World
Court ruled that to prove the existence of a rule in international customary
law, it is necessary to establish not only that States act a certain way but that
they do so because they recognize a legal obligation to this effect, i.e., with
or without a treaty.
Despite its ancient roots … the duty to extradite is only an imperfect obli-
gation which requires an explicit agreement in order to become fully binding
under international law and secure reciprocal rights and duties of the con-
tracting states. The exception would be with respect to international crimes,
such as terrorism and genocide, in which extradition is seen as being a definite
legal duty. As d.w. Grieg so bluntly puts it, there exists no duty to extradite
under customary international law [and] can be demanded only by virtue of
a treaty. …; conversely, in its absence, there is no legal right to demand and no
corresponding obligation to extradite. …
Neither can extradition be considered a generally accepted principle of inter-
national law
Article 38 (1) (c) of the Statute of the International Court of Justice refers
to the “general principles of law” recognized by civilized nations as being a
source of law which comes after customary law, international conventions and
treaties, all of which are based on the consent of nations. Article 38 (1) (c) is
identified as being a “secondary source” of international law and, therefore,

60 g.r. No. 148571, 24 September 2002.

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not ranked at par with treaties and customary international law. The phrase is
innately vague; and its exact meaning still eludes any general consensus. The
widely preferred opinion, however, appears to be that of Oppenheim which
views “general principles of law” as being inclusive of principles of private or
municipal law when these are applicable to international relations. Where, in
certain cases, there is no applicable treaty nor a generality of state practice giv-
ing rise to customary law, the international court is expected to rely upon cer-
tain legal notions of justice and equity in order to deduce a new rule for appli-
cation to a novel situation. This reliance or “borrowing” by the international
tribunal from general principles of municipal jurisprudence is explained in
many ways by the fact that municipal or private law has a higher level of devel-
opment compared to international law. …
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 prin-
ciple 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. Examples of these principles,
most of which are drawn from Roman law, encompasses rules on prescription,
estoppel, res judicata, consent and pacta sunt servanda. It can also include
generally accepted principles enshrined under the Universal Declaration of
Human Rights, such as the basic human right to life and liberty without dis-
tinction as to race, color, sex, race language or religion, political or other opin-
ion, nationality, social origin, property, birth or other status. At the moment,
extradition, at most a process resorted to by states under the policy of coop-
eration and comity with each other, does not qualify as a generally accepted
principle of international law nor as being thereby incorporated and deemed
part of the law of the land under Section 11, Article ii, of the 1987 Philippine
Constitution.
Clarifying the term “generally-​accepted principles of international law”
during the deliberations of the 1987 Constitutional Commission, Commissioner
Adolfo S. Azcuna points out that “(w)hen we talk of generally-​accepted princi-
ples of international law as part of the law of the land, we mean that it is part
of the statutory part of laws, not of the Constitution.
The remark is shared by Professor Merlin M. Magallona who expresses
that the phrase “as part of the law of the land” in the incorporation clause
refers to the levels of legal rules below the Constitution such as legislative
acts and judicial decisions. Thus, he contends, it is incorrect to so interpret
this phrase as including the Constitution itself because it would mean that
the “generally-​accepted principles of international law” falls in parity with
the Constitution.

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C Mijares, et al. v. Ranada and Estate of Marcos (2005)61

On 20 May 1997, [the Marcos human rights victims] filed Complaint with the
Regional Trial Court, City of Makati (Makati rtc) for the enforcement of the
Final Judgment. They alleged that they are members of the plaintiff class in
whose favor the US District Court awarded damages. They argued that … the
decision of the US District Court had become final and executory, and hence
should be recognized and enforced in the Philippines, pursuant to Section 50,
Rule 39 of the Rules of Court then in force.
….
There is another consideration of supreme relevance in this case, one
which should disabuse the notion that the doctrine affirmed in this decision
is grounded solely on the letter of the procedural rule. We earlier adverted to
the internationally recognized policy of preclusion, as well as the principles
of comity, utility and convenience of nations as the basis for the evolution of
the rule calling for the recognition and enforcement of foreign judgments. …
Yet the notion of “comity” has since been criticized as one “of dim contours” or
suffering from a number of fallacies. Other conceptual bases for the recogni-
tion of foreign judgments have evolved such as the vested rights theory or the
modern doctrine of obligation.
There have been attempts to codify through treaties or multilateral agree-
ments the standards for the recognition and enforcement of foreign judgments,
but these have not borne fruition. … The most ambitious of these attempts is
the Convention on the Recognition and Enforcement of Foreign Judgments in
Civil and Commercial Matters, prepared in 1966 by the Hague Conference of
International Law. While it has not received the ratifications needed to have
it take effect, it is recognized as representing current scholarly thought on
the topic. Neither the Philippines nor the United States are signatories to the
Convention.
Yet even if there is no unanimity as to the applicable theory behind the rec-
ognition and enforcement of foreign judgments or a universal treaty rendering
it obligatory force, there is consensus that the viability of such recognition and
enforcement is essential. Steiner and Vagts note:

… The notion of unconnected bodies of national law on private inter-

national law, each following a quite separate path, is not one conducive
to the growth of a transnational community encouraging travel and
commerce among its members. There is a contemporary resurgence of

61 g.r. No. 139325, 12 April 2005.

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178  Chapter 5

writing stressing the identity or similarity of the values that systems of

public and private international law seek to further—​a community inter-
est in common, or at least reasonable, rules on these matters in national
legal systems. And such generic principles as reciprocity play an import-
ant role in both fields.

Salonga, whose treatise on private international law is of worldwide renown,

points out:

Whatever be the theory as to the basis for recognizing foreign judgments,

there can be little dispute that the end is to protect the reasonable expec-
tations and demands of the parties. Where the parties have submitted a
matter for adjudication in the court of one state, and proceedings there
are not tainted with irregularity, they may fairly be expected to submit,
within the state or elsewhere, to the enforcement of the judgment issued
by the court.

….
There is no obligatory rule derived from treaties or conventions that
requires the Philippines to recognize foreign judgments, or allow a proce-
dure for the enforcement thereof. However, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive from treaty obli-
gations. The classical formulation in international law sees those customary
rules accepted as binding result from the combination two elements: the
established, widespread, and consistent practice on the part of States; and
a psychological element known as the opinion juris sive necessitates (opin-
ion 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.
While the definite conceptual parameters of the recognition and enforce-
ment of foreign judgments have not been authoritatively established, the
Court can assert with certainty that such an undertaking is among those gen-
erally accepted principles of international law. … The fact that there is no bind-
ing universal treaty governing the practice is not indicative of a widespread
rejection of the principle, but only a disagreement as to the imposable specific
rules governing the procedure for recognition and enforcement.
… Certainly, the Philippine legal system has long ago accepted into its
jurisprudence and procedural rules the viability of an action for enforcement
of foreign judgment, as well as the requisites for such valid enforcement, as

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derived from internationally accepted doctrines. … The bare principle, to our

mind, has attained the status of opinio juris in international practice.
This is a significant proposition, as it acknowledges that the procedure and
requisites outlined in [the Rules of Court] derive their efficacy not merely
from the procedural rule, but by virtue of the incorporation clause of the
Constitution. Rules of procedure are promulgated by the Supreme Court,
and could very well be abrogated or revised by the high court itself. Yet the
Supreme Court is obliged, as are all State components, to obey the laws of the
land, including generally accepted principles of international law which form
part thereof, such as those ensuring the qualified recognition and enforcement
of foreign judgments.

D Vinuya v. Romulo (Comfort Women) (2010)62

We fully agree that rape, sexual slavery, torture, and sexual violence are mor-
ally reprehensible as well as legally prohibited under contemporary interna-
tional law. However, petitioners take quite a theoretical leap in claiming that
these proscriptions automatically imply that the Philippines is under a non-​
derogable obligation to prosecute international crimes, particularly since peti-
tioners do not demand the imputation of individual criminal liability, but seek
to recover monetary reparations from the state of Japan. Absent the consent
of states, an applicable treaty regime, or a directive by the Security Council,
there is no non-​derogable duty to institute proceedings against Japan. Indeed,
precisely because of states’ reluctance to directly prosecute claims against
another state, recent developments support the modern trend to empower
individuals to directly participate in suits against perpetrators of international
crimes. Nonetheless, notwithstanding an array of General Assembly resolu-
tions calling for the prosecution of crimes against humanity and the strong
policy arguments warranting such a rule, the practice of states does not yet
support the present existence of an obligation to prosecute international
crimes. Of course a customary duty of prosecution is ideal, but we cannot find
enough evidence to reasonably assert its existence. To the extent that any state
practice in this area is widespread, it is in the practice of granting amnesties,
immunity, selective prosecution, or de facto impunity to those who commit
crimes against humanity.”
Even the invocation of jus cogens norms and erga omnes obligations will
not alter this analysis. Even if we sidestep the question of whether jus cogens
norms existed in 1951, petitioners have not deigned to show that the crimes

62 g.r. No. 162230, 28 April 2010.

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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 erga omnes obligation or has attained the status of
jus cogens.
The term erga omnes (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. The concept was recognized by the icj in
Barcelona Traction:

… an 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 erga omnes.
Such obligations derive, for example, in contemporary international
law, from the outlawing of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination.
Some of the corresponding rights of protection have entered into the
body of general international law … others are conferred by international
instruments of a universal or quasi-​universal character.

The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of
those sharing a belief in the emergence of a value-​based international public
order. However, as is so often the case, the reality is neither so clear nor so
bright. Whatever the relevance of obligations erga omnes as a legal concept, its
full potential remains to be realized in practice.
The term is closely connected with the international law concept of jus
cogens. In international law, 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.
Early strains of the jus cogens doctrine have existed since the 1700s, but
peremptory norms began to attract greater scholarly attention with the pub-
lication of Alfred von Verdross’s influential 1937 article, Forbidden Treaties
in International Law. The recognition of jus cogens gained even more force
in the 1950s and 1960s with the ilc’s preparation of the Vienna Convention
on the Law of Treaties (vclt). Though there was a consensus that certain

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international norms had attained the status of jus cogens, the ilc was unable
to reach a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the
ilc concluded ruefully in 1963 that “there is not as yet any generally accepted
criterion by which to identify a general rule of international law as having the
character of jus cogens.” In a commentary accompanying the draft convention,
the ilc indicated that “the prudent course seems to be to … leave the full con-
tent of this rule to be worked out in State practice and in the jurisprudence
of international tribunals.” Thus, while the existence of jus cogens in interna-
tional law is undisputed, no consensus exists on its substance, beyond a tiny
core of principles and rules.

E Ocampo v. Abando, Leonen, J., Concurring Opinion (2014)63

Some have asserted that Common Article 3 of the Geneva Conventions
belongs to the body of jus cogens norms. Jus cogens norms under the Vienna
Convention of Law of the Treaties are “norm[s]‌accepted and recognized by
the international community of States as a whole as [norms] from which no
derogation is permitted and which can be modified only by a subsequent norm
of general international law having the same character.”
….
In a similar vein, there exist international human rights laws or ihrl (not
necessarily belonging to international humanitarian law) that are of jus cogens
nature. Thus:

There is a consensus … about the jus cogens nature of a number of pro-

hibitions formulated in international human rights law. … These include
at a minimum the prohibition of aggression, slavery and the slave trade,
genocide …, racial discrimination, apartheid and torture …, as well as basic
rules of international humanitarian law applicable in armed conflict, and
the right to self-​determination. [emphasis added]

International humanitarian law and international human rights law are two
sets of regimes in international law. …
Thus, all persons are protected in both times of war and peace. The protec-
tion accorded by human rights laws does not cease to apply when armed con-
flict ensues. Still, some “human rights” are allowed to be derogated in times of
“emergency which threatens the life of the nation.” Nevertheless, provisions on

63 g.r. No. 176830, 11 February 2014.

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the right to life, prohibition from torture, inhuman and degrading treatment,
and slavery remain free from any derogation whatsoever, having acquired a jus
cogens character.

F Haw Pia v. China Banking Corporation (1948)64

[During World War ii, Japan as the Occupying Power sequestered China
Bank as enemy property and appointed the Bank of Taiwan as its liquidator.
Mortgage payments were made to the Bank of Taiwan. After the war, China
Bank refused to honor the payments. The Supreme Court upheld the validity
of the payments and ordered the cancellation of the mortgage.]
(1) As to the first question, we are of the considered opinion, and therefore
hold, that the Japanese military authorities had power, under the international
law, to order the liquidation of the China Banking Corporation and to appoint
and authorize the Bank of Taiwan as liquidator to accept the payment in ques-
tion, because such liquidation is not … an act of confiscation or appropriation
of private property contrary to Article 46, section iii of the Hague Regulations
of 1907.
The provisions of the Hague Regulations, section iii, on Military Authority
over Hostile Territory, which is a part of the Hague Convention respecting the
laws and customs of war on land, are intended to serve as a general rule of
conduct for the belligerents in their relations with each other and with the
inhabitants. … [I]‌t was agreed that “Until a complete code of the laws of war
has been issued, the High Contracting Parties deem it expedient to declare
that in cases not included in the Regulations adopted by them, the inhabitants
and the belligerents remain under the protection and the rule of the principles
of international law, as they result for the usages established among civilized
peoples, from the laws of humanity, and the dictates of public conscience.”
Before the Hague Convention, it was the usage or practice to allow or permit
the confiscation or appropriation by the belligerent occupant not only of pub-
lic but also of private property of the enemy in a territory occupied by the bel-
ligerent hostile army; and as such usage or practice was allowed, a fortiori, any
other act short of confiscation was necessarily permitted. … The belligerents in
their effort to control enemy property within their jurisdiction or in territories
occupied by their armed forces in order to avoid their use in aid of the enemy
and to increase their own resources, after the Hague Convention and specially
during the First World War, had to resort to such measures of prevention which

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do not amount to a straight confiscation, as freezing, blocking, placing under

custody and sequestrating the enemy private property. …
Hyde in his International Law chiefly as interpreted and applied by the
United States, Vol. 3, 6th ed., p. 1727, has the following to say:
….

A belligerent may fairly endeavor to prevent enemy property of any kind

within its territory (or elsewhere within its reach) from being so employed
as to afford direct military aid to its foe. Measures of prevention may, in
a particular case, assume a confiscatory aspect. In such a situation the
question may arise whether those measures are, nevertheless, excusable.
It is believed that they may be, and that they are not invariably unlawful
despite the absence of efforts to compensate the owners.
….

And Oppenheim in his International Law, Vol. 2, 6th ed., by Lauterpacht, says:

But the desire to eliminate the financial and commercial influence of the
enemy, and other motives, presently led in most States to exceptional war
measures against the businesses and property of enemies, which, though
not confiscation, inflicted great loss and injury. Sometimes these mea-
sures stopped short of divesting the enemy ownership of the property;
but in other cases the businesses or property were liquidated, and were
represented at the close of hostilities by nothing else than the proceeds of
their realization, often enough out of all proportion to their value. In the
Trading with the Enemy Act, 1939, provisions was made for the appoint-
ment of custodians of enemy property in order to prevent the payment
of money to enemies and to preserve enemy property in contemplation
of arrangements to be made at the conclusion of peace.
….

G Gibbs v. Rodriguez, on Motion for Reconsideration (1950)65

This is a motion for reconsideration of the decision of this Court in the pres-
ent case filed by the plaintiffs on the grounds [inter alia] that the decision
of this Court in the Haw Pia case on the strength of which the present case
has been decided, is erroneous, and in support of the petitioners’ contention
our attention is invited to an article appearing in the June 1949 issue of the

65 g.r. No. L-​1494, 21 December 1950.

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Philippine Law Journal written by Professor Charles Cheney Hyde, author of

“International Law as chiefly interpreted and applied by the United States.”
….
With respect to the article of Professor Charles Cheney Hyde on the deci-
sion of this Court in the case of Haw Pia v. China Banking Corporation, [supra],
it may not be amiss to state, by way of a preamble before proceeding, that
according to Article 38 of the Statutes of the International Court of Justice, the
Court shall, subject to certain limitations, apply judicial decisions as a subsidi-
ary means for the determination of rules of International Law. Although courts
are not organs of the State for expressing in a binding manner its views on
foreign affairs, they are nevertheless organs of the State giving, as a rule, impar-
tial expression to what is believed to be International Law. For this reason,
judgments of municipal tribunals are of considerable practical importance
for determining what is the right rule of International Law. This is now being
increasingly recognized, and periodical unofficial collections of decisions of
both international and municipal courts are being published. In pleadings
before international tribunals litigants still fortify their arguments by reference
to writings of international jurists, but with the growth of international judicial
activity and of the practice of States evidenced by widely accessible records
and reports, it is natural that reliance on the authority of writers as evidence of
International Law should tend to diminish. For it is as evidence of the law and
not as a law-​creating factor that the usefulness of teachings of writers has been
occasionally admitted in judicial pronouncements. But inasmuch as a source
of law is conceived as a factor influencing the judge in rendering his decision,
the work of writers may continue to play a part in proportion to its intrinsic
scientific value, its impartiality and its determination to scrutinize critically
the practice of States by reference to legal principle. [Citation omitted]
It does not seem, therefore, proper for an attorney or jurist, in trying to pro-
tect or defend the interest of parties affected adversely by a decision rendered
by the Supreme Court of a Sovereign Foreign Power, to assail it with arguments
premised on facts different from those found by their court on which the deci-
sion is based and dub that decision as one in violation of International Law.
A decision of the Supreme Court of the small Republic of the Philippines is as
much a source of International Law as a decision of the Supreme Court of the
great Republic of the United States of America. The article of Professor Hyde
in which the author, commenting on the decision in the Haw Pia case, says that
it “will do the utmost harm to American Interest” does not deserve the same
weight as his opinions set forth in his work “International Law chiefly as inter-
preted and applied by the United States.” Because the article was written and
published more than one year after our decision, not by an impartial jurist and

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ante litem motam, but by an attorney who tries to defend American interests
in the Philippines after an action was instituted in the Supreme Court of the
State of New York by the Compañia Tabacalera, a corporation owned mostly by
Spaniards and doing business in these Islands, against the National City Bank
of New York, an action based on the decision of this Supreme Court of the
Philippines in the said Haw Pia case.
….
Professor Hyde has missed the point, because the question involved and
decided in the Haw Pia case was not the validity of the Japanese decrees per-
mitting a local debtor to satisfy fully his pre-​war peso indebtedness to the
local office of a foreign creditor bank by payment in a greatly depreciated
military currency, but the power of the Japanese Military Administration to
order validly the liquidation or winding up of the defendant China Banking
Corporation, considered as a hostile bank, by the Bank of Taiwan appointed as
the liquidator and authorized to demand and accept the payment by the debt-
ors of the defendant bank in order to sequestrate the latter’s assets.

iv Unilateral Declarations: Province of North Cotabato v. Government

of the Republic of the Philippines Peace Panel on Ancestral Domain
(2008)66

In another vein, concern has been raised that the moa-​a d would amount to a
unilateral declaration of the Philippine State, binding under international law,
that it would comply with all the stipulations stated therein, with the result
that it would have to amend its Constitution accordingly regardless of the
true will of the people. Cited as authority for this view is Australia v. France,
also known as the Nuclear Tests Case, decided by the International Court of
Justice (icj).
In the Nuclear Tests Case, Australia challenged before the icj the legality of
France’s nuclear tests in the South Pacific. France refused to appear in the case,
but public statements from its President, and similar statements from other
French officials including its Minister of Defence, that its 1974 series of atmo-
spheric tests would be its last, persuaded the icj to dismiss the case. Those
statements, the icj held, amounted to a legal undertaking addressed to the
international community, which required no acceptance from other States for
it to become effective.

66 g.r. No. 18359, 14 October 2008.

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Essential to the icj ruling is its finding that the French government intended
to be bound to the international community in issuing its public statements, viz.:

43. It is well recognized that declarations made by way of unilateral acts,

concerning legal or factual situations, may have the effect of creating
legal obligations. Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making the declaration that it
should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being thence-
forth legally required to follow a course of conduct consistent with the dec-
laration. An undertaking of this kind, if given publicly, and with an intent
to be bound, even though not made within the context of international
negotiations, is binding. In these circumstances, nothing in the nature
of a quid pro quo nor any subsequent acceptance of the declaration, nor
even any reply or reaction from other States, is required for the declara-
tion to take effect, since such a requirement would be inconsistent with
the strictly unilateral nature of the juridical act by which the pronounce-
ment by the State was made.
….
51. In announcing that the 1974 series of atmospheric tests would be
the last, the French Government conveyed to the world at large, includ-
ing the Applicant, its intention effectively to terminate these tests. It was
bound to assume that other States might take note of these statements
and rely on their being effective. The validity of these statements and
their legal consequences must be considered within the general frame-
work of the security of international intercourse, and the confidence
and trust which are so essential in the relations among States. It is from
the actual substance of these statements, and from the circumstances
attending their making, that the legal implications of the unilateral act
must be deduced. The objects of these statements are clear and they
were addressed to the international community as a whole, and the
Court holds that they constitute an undertaking possessing legal effect.
The Court considers that the President of the Republic, in deciding
upon the effective cessation of atmospheric tests, gave an undertaking
to the international community to which his words were addressed. …
[Emphasis added]

As gathered from the above-​quoted ruling of the icj, public statements of a

state representative may be construed as a unilateral declaration only when
the following conditions are present: the statements were clearly addressed

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to the international community, the state intended to be bound to that com-

munity by its statements, and that not to give legal effect to those statements
would be detrimental to the security of international intercourse. Plainly, uni-
lateral declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized
in a later case decided by the icj entitled Burkina Faso v. Mali, also known
as the Case Concerning the Frontier Dispute. The public declaration subject of
that case was a statement made by the President of Mali, in an interview by a
foreign press agency, that Mali would abide by the decision to be issued by a
commission of the Organization of African Unity on a frontier dispute then
pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the icj held that the statement of Mali’s
President was not a unilateral act with legal implications. It clarified that its
ruling in the Nuclear Tests case rested on the peculiar circumstances surround-
ing the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act,

account must be taken of all the factual circumstances in which the act
occurred. For example, in the Nuclear Tests cases, the Court took the view
that since the applicant States were not the only ones concerned at the
possible continuance of atmospheric testing by the French Government,
that Government’s unilateral declarations had ‘conveyed to the world at
large, including the Applicant, its intention effectively to terminate these
tests’ [citation omitted]. In the particular circumstances of those cases,
the French Government could not express an intention to be bound
otherwise than by unilateral declarations. … The circumstances of the
present case are radically different. Here, there was nothing to hinder
the Parties from manifesting an intention to accept the binding charac-
ter of the conclusions of the Organization of African Unity Mediation
Commission by the normal method: a formal agreement on the basis of
reciprocity. Since no agreement of this kind was concluded between the
Parties, the Chamber finds that there are no grounds to interpret the dec-
laration made by Mali’s head of State on 11 April 1975 as a unilateral act
with legal implications in regard to the present case.

Assessing the moa-​a d in light of the above criteria, it would not have amounted
to a unilateral declaration on the part of the Philippine State to the interna-
tional community. The Philippine panel did not draft the same with the clear
intention of being bound thereby to the international community as a whole
or to any State, but only to the milf. …

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In one important respect, the circumstances surrounding the moa-​a d are

closer to that of Burkina Faso wherein, as already discussed, the Mali President’s
statement was not held to be a binding unilateral declaration by the icj. As in
that case, there was also nothing to hinder the Philippine panel, had it really
been its intention to be bound to other States, to manifest that intention by
formal agreement. … On that ground, the moa-​a d may not be considered a
unilateral declaration under international law.

v Recommendations by Human Rights Treaty Bodies: Felipe and

Evelyn Pestaño, Communication No. 1619/​2007 (Views of the
Human Rights Committee, 2010)67

2.1 The authors’ son, Phillip Pestaño, was at the time of the alleged violation an
Officer of the Philippine Navy, serving as cargo officer of the brp Bacolod City
ship during its Mindanao voyage in September 1995. On or about 25 September
1995, the ship’s Commander permitted the loading of more than 14, 000 board
feet of logs onto the brp Bacolod City, without proper papers or authorization.
The authors’ son vehemently objected to the loading of such unauthorized
cargoes.
2.2 On 26 September 1995, the authors received an anonymous phone call,
warning them that their son’s life was in danger. On the same day, they col-
lected their son from the Navy Station at Sangley Point, Cavite City, about
100 kilometers from Manila, and took him to their house in Loyola Heights,
Quezon City. That night, the victim disclosed to his father, the author, that the
brp Bacolod City ship was “dirty”, and that the illegal cargo included 20 sacks of
shabu [a Methamphetamine substance] worth approximately 1 billion pesos in
the black market. The author tried to dissuade his son from pursuing the case,
as he was concerned that any action taken by his son may jeopardize his own
business, as the Philippine Navy’s biggest ship repair contractor. Despite the
author’s warning, however, Phillip was determined to take the matter forward.
2.3 On 27 September 1995, at about 4:00 am, the authors’ son left the family
home and proceeded to board his ship, the brp Bacolod City. At about 11:00 am
on the same day, the authors received a call from the Philippine Navy, asking
them to proceed to the Navy Headquarters in Manila, because their son Phillip
had “had an accident”.

67 Human Rights Committee, Views of The Human Rights Committee under Article 5,
Paragraph 4, of The Optional Protocol to the International Covenant on Civil and Political
Rights, 11 May 2010, ccpr/​C/​98/​D/​1619/​2007.

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2.4 When the authors reached the Navy Headquarters, they were prevented
from entering their son’s suite, where he lay dead. Instead, they were immedi-
ately asked to sign an authorization for an autopsy to be conducted on their
son’s body, to which the authors consented after having viewed their son’s
body. The Navy thereafter exhibited an alleged suicide weapon and an alleged
suicide note, in support of their position that the authors’ son had committed
suicide.
2.5 On 30 September 1995, the authors’ son was buried in the National
Cemetery for military personnel and given full military honours, despite a Navy
policy stating that suicide victims should not benefit from such treatment.
2.6 In October 2005, after conducting their own investigations, the Criminal
Investigation Division of the Philippine National Police and the National
Bureau of Investigation of the Department of Justice corroborated the Navy’s
position, concluding that the authors’ son had committed suicide.
…
2.8 In October 1995, the radio operator of the brp Bacolod City during its
Mindanao voyage, and close friend of the authors’ son, drowned in high seas
under highly suspicious circumstances during an alleged mission where all his
companions survived. The victim’s body was never found.
2.9 In November 1995, another member of the Navy, who was perceived as
an ally of the authors’ son, and who was also aboard the brp Bacolod City in
September 1995, mysteriously disappeared after being ordered to report to the
Navy Headquarters in Manila. This person is still missing and is believed to
be dead.
2.10 On 15 November 1995, two Senators filed a Senate Resolution, directing
the appropriate Senate Committees to conduct an inquiry into the circum-
stances surrounding the death of the authors’ son.
2.11 In December 1995, the State party’s Navy Flag Officer in Command, a
Vice-​Admiral, invited the authors to dinner, and requested that they refrain
from pursuing their son’s case against the Navy. Two weeks later, the Navy Flag
Officer in Command sought to see the authors again, and presented the author,
Mr. Pestaño, with his company’s contract with the Navy, worth a hundred-​
million pesos, together with an affidavit of waiver and desistance to pursue
his suit against the Navy. The authors decided that they would not abandon
their son’s claim. One week after this information was relayed to the Navy Flag
Officer in Command, the four Navy ships being repaired by the author’s com-
pany all mysteriously sank, and his company’s offices in the Navy Station in
Sangley Point were ransacked and looted. It is also reported that the authors’
nephew, the company’s property custodian, was shot dead during the same
period.

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2.12 On 2 January 1996, the authors received a leaked copy of an intelligence

report of the State party’s Armed Forces, which stated that the brp Bacolod City
carried 1 billion pesos worth of shabu in 20 sacks of rice during its September
1995 trip. The report also indicated that this shipment had been escorted by a
Security Officer of the State party’s Navy Flag Officer in Command, and that
upon discovering the illegal cargo, the authors’ son had confronted his supe-
rior, and was killed afterwards, to prevent him from revealing the criminal
activities taking place on board the ship. This confidential report also identi-
fied the chief security officer of the Navy Flag Officer in Command as the most
likely perpetrator of the crime.
2.13 In January 1996, another member of the Philippine Navy mysteriously
died in a military hospital, after a strange and quick deterioration of his condi-
tion. This person was suspected of involvement in the “shabu operation” in the
brp Bacolod City, as well as in the death of the authors’ son, and had engaged
in discreet talks with the authors before his death. He was believed to be ready
to reveal important information before he died. The death of this member of
the Navy brings to four the number of persons killed in connection with the
September 1995 voyage of the brp Bacolod City. The four killings remain unin-
vestigated, and unaccounted for.
….
2.15 On 25 January 1998, … two Senate Committees issued a Joint report
on the Pestaño case, which contained the following findings: (i) The authors’
son did not kill himself on the brp Bacolod City on 27 September 1995; (ii) he
was shot in one place in the vessel different from the one where his body was
found; (iii) after his death, his body was moved and laid on the bed where it
was found; (iv) he must have been shot on board the brp Bacolod City before
the vessel reached the Navy Headquarters on 27 September 1995; (v) there was
a deliberate attempt to make it appear that the authors’ son killed himself
inside his stateroom; and (vi) such an attempt was so deliberate and elaborate
that one person could not have accomplished it by himself. …

Issues and Proceedings before the Committee

Consideration of Admissibility
….
6.4 The Committee recalls that it is precluded from considering any com-
munication unless it has been ascertained that all available domestic reme-
dies have been exhausted. For the purposes of article 5, paragraph 2 (b), of
the Optional Protocol, however, domestic remedies must both be effective
and available, and must not be unduly prolonged. In the circumstances of
this case, the Committee notes that the State party has failed to show that

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any investigation has been initiated since the date of the alleged offence, with
the final aim of ensuring the effective prosecution and punishment of the
perpetrator/​s of the alleged murder. Under these circumstances, and consid-
ering that almost 15 years elapsed since the date of the alleged offence, the
Committee considers that domestic remedies have been unreasonably pro-
longed. The Committee accordingly finds that article 5, paragraph 2 (b) of the
Optional Protocol does not preclude it from considering the complaint.
….

Consideration of the Merits

….
7.2 With regard to the authors’ contention that article 6 was violated, the
Committee recalls that the right to life is the supreme right, from which no der-
ogation is permitted. It further recalls that States parties have a positive obli-
gation to ensure the protection of individuals against violations of Covenant
rights, which may be committed not only by its agents, but also by private per-
sons or entities. The Committee also refers to its jurisprudence, according to
which both a criminal investigation and consequential prosecution are neces-
sary remedies for violations of human rights such as those protected by article
6. A violation of the Covenant may therefore arise as a result of a State party’s
failure to take appropriate measures to punish, investigate or redress such a
violation.
7.3 Despite the initial findings of the State party’s National Police and
Department of Justice, which both concluded in October 1995 that the vic-
tim had committed suicide, it now appears undisputed that the death of the
authors’ son was a violent one, resulting from a homicide. The State party’s
submission of 18 January and 8 May 2008, contending that the author’s case
was “an ordinary criminal case”, at least concede this fact. The Committee took
note of the conclusions of the substantial Senate report of 25 January 1998,
which established that the victim was shot on board the brp Bacolod City on
27 September 1995, that there had been a deliberate attempt to make it appear
that the authors’ son killed himself, and which recommended that an indepen-
dent investigation be conducted. The Committee further noted that an admin-
istrative and criminal action filed by the authors is currently pending against
members of the State party’s Navy, i.e. of an organ of the State party.
7.4 The Committee takes note of the authors’ assertions that two other mem-
bers of the State party’s Navy who were close to the victim, as well as another
Navy Ensign who allegedly participated in the illicit boarding of drugs on the
brp Bacolod City, and who had engaged in communications with the authors
about their son’s death, all died or disappeared in mysterious circumstances

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between October 1995 and January 1996. The authors further reported having
been threatened by a Vice-​Admiral of the State party’s Navy to lose their busi-
ness with the Navy should they persist in their complaint. As they pursued their
action, the authors reportedly lost their business, and their nephew, the com-
pany’s property custodian, was killed. In the absence of rebuttal statements,
or any comments from the State party on these facts, the Committee gives due
weight to the authors’ contentions, which raise a strong presumption of direct
participation of the State party in the violation of their son’s right to life.
7.5 The Committee considers that the killing of the authors’ son on board a
ship of the State party’s Navy warranted a speedy, independent investigation on
the possible involvement of the Navy in the crime. … To simply state that there
was no direct participation of the State party in the violation of the victim’s
right to life falls short of fulfilling such positive obligation under the Covenant.
While close to fifteen years elapsed since the death of the victim, the authors
are still ignorant of the circumstances surrounding their son’s death, and the
State party’s authorities have yet to initiate an independent investigation. …
7.6 The Committee has given due consideration to the authors’ claim under
article 6 that the death of their son is directly attributable to the State party.
When a person dies in circumstances that might involve a violation of the right
to life, the State party is bound to conduct an investigation and ensure that
there is no impunity. The State party must accordingly be held to be in breach
of its obligation, under article 6, read in conjunction with article 2, paragraph
3, to properly investigate the death of the authors’ son, prosecute the perpetra-
tors, and ensure redress.
….
9. Under article 2, paragraph 3(a), of the Covenant, the State party is under an
obligation to provide the authors with an effective remedy in the form, inter alia,
of an impartial, effective and timely investigation into the circumstances of their
son’s death, prosecution of perpetrators, and adequate compensation. The State
party is also under an obligation to prevent similar violations in the future.

vi “Soft Law”

A Ocampo v. Enriquez, on Motion for Reconsideration (2017)68

[This pertains to the burial of ousted President Ferdinand Marcos at the
Libingan ng Mga Bayani (lnmb, literally, Burial Ground of the Heroes) in 2016,
more than a quarter-​century after he died in Honolulu in 1989 and President

68 g.r. No. 225973, Resolution, 08 August 2017.

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Corazon Aquino prohibited his return to Manila. The ban was upheld twice by
the Supreme Court, first when Marcos was still alive, and next after he had died
(Marcos v. Manglapus, infra Ch. 7). Aquino lifted the ban in 1991 but his remains
were brought to Manila only in 1993 and were interred in his home province.
In 2016, with the support of President Rodrigo Duterte, later validated by the
Philippine Supreme Court, Marcos was finally buried at the lnmb. This deci-
sion disposes of the oppositors’ Motion for Reconsideration, with a motion for
exhumation.]

Observance of the ihr Laws

[The oppositors to the Marcos burial] propound that mere existence of human
rights laws, administrative rules, and judicial issuance in the Philippines
is not equivalent to full compliance with international law standards. It is
contended that if the State is to ensure its commitment to the principles of
international human rights law, hrvv s must be given full satisfaction and
guarantees of non-​repetition as defined by Principles 22 and 23 of the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims
of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law (“Basic Principles and Guidelines”). Similarly,
Ocampo et al. holds that the hrvv s [or Human Rights Violations Victims] are
entitled to restitution, compensation, rehabilitation, and satisfaction as con-
templated in Sections 19 to 22 of the Basic Principles and Guidelines. Essentially,
as the Chief Justice expressed in her dissent, there must holistic reparation—​
financial and symbolic.
The Basic Principles and Guidelines and the Updated Set of Principles for the
Protection and Promotion of Human Rights through Action to Combat Impunity
(“UN Principles on Impunity”) are neither a treaty nor have attained the sta-
tus of generally accepted principles of international law and/​or international
customs. Justice Arturo D. Brion fittingly observed in his Separate Concurring
Opinion that they do not create legally binding obligations because they are not
international agreements but are considered as “soft law” that cannot be inter-
preted as constraints on the exercise of presidential prerogative. Consistent
with Pharmaceutical and Health Care Assoc. of the Phils. v. Health Sec. Duque
iii, the Basic Principles and Guidelines and the UN Principles on Impunity are
merely expressions of non-​binding norms, principles, and practices that influ-
ence state behavior; therefore, they cannot be validly considered as sources
of international law that is binding upon the Philippines under Art. 38 (1),
Chapter ii of the Statute of the International Court of Justice.
It is evident from the plain text of the Basic Principles and Guidelines and
the UN Principles on Impunity that they are recommendatory in character.

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194  Chapter 5

The Resolution of the General Assembly adopting the Basic Principles and
Guidelines states:

2. Recommends that States take the Basic Principles and Guidelines into
account, promote respect thereof and bring them to the attention of
members of the executive bodies of government, in particular law
enforcement officials and military and security forces, legislative bodies,
the judiciary, victims and their representatives, human rights defenders
and lawyers, the media and the public in general; …

As to the UN Principles on Impunity, the concluding portion of its Preamble reads:

Pursuant to the Vienna Declaration and Programme of Action, the fol-

lowing principles are intended as guidelines to assist States in developing
effective measures for combating impunity.

Had the Congress intended to incorporate the provisions of the Basic Principles
and Guidelines and the UN Principles on Impunity, which was already adopted
by the United Nations as early as 2005, it could have done so by expressly men-
tioning them in the Declaration of Policy under Sec. 2 of r.a. No. 10368.

B Pharmaceutical and Health Care Association of the Philippines

v. Duque (2007)69
[In 1986, President Corazon Aquino promulgated the Milk Code in the exercise
of her legislative powers during the transitional period right after the fall of the
Marcos dictatorship. The petitioners are manufacturers of breastmilk substi-
tutes, who assail its validity.]
One of the preambular clauses of the Milk Code states that the law seeks
to give effect to the International Code of Marketing of Breastmilk Substitutes
(icmbs), a code adopted by the World Health Assembly (wha) in 1981. …
In 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.

69 g.r. 173034, 09 October 2007.

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On May 15, 2006, the doh issued herein assailed rirr which was to take
effect on July 7, 2006.
….
First, the Court will determine if pertinent international instruments
adverted to by respondents are part of the law of the land.
Petitioner assails the rirr for allegedly going beyond the provisions of the
Milk Code, thereby amending and expanding the coverage of said law [by
expanding its scope beyond “infants” (0–​12 months) to “young children” (12–​
36 months), and containing a total ban on breastmilk substitutes or replace-
ments for infants]. The defense of the doh is that the rirr implements not
only the Milk Code but also various international instruments regarding infant
and young child nutrition. It is respondents’ position that said international
instruments are deemed part of the law of the land and therefore the doh may
implement them through the rirr.
The Court notes that the following international instruments invoked
by respondents, namely: (1) The United Nations Convention on the Rights
of the Child; (2) The International Covenant on Economic, Social and
Cultural Rights; and (3) the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms that steps
must be taken by State Parties to diminish infant and child mortality and
inform society of the advantages of breastfeeding, ensure the health and
well-​being of families, and ensure that women are provided with services
and nutrition in connection with pregnancy and lactation. Said instruments
do not contain specific provisions regarding the use or marketing of breast-
milk substitutes.
The international instruments that do have specific provisions regarding
breastmilk substitutes are the icmbs and various wha Resolutions.
Under the 1987 Constitution, international law can become part of the
sphere of domestic law either by transformation or incorporation. The trans-
formation 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 pur-
suant to Article vii, Section 21 of the Constitution which provides that “[n]‌o
treaty or international agreement shall be valid and effective unless concurred
in by at least two-​thirds of all the members of the Senate.” 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.

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196  Chapter 5

The icmbs and wha Resolutions are not treaties as they have not been con-
curred in by at least two-​thirds of all members of the Senate as required under
Section 21, Article vii of the 1987 Constitution.
However, the icmbs which was adopted by the wha in 1981 had been
transformed into domestic law through local legislation, the Milk Code.
Consequently, it is the Milk Code that has the force and effect of law in this
jurisdiction and not the icmbs per se.
The Milk Code is almost a verbatim reproduction of the icmbs, but it is
well to emphasize at this point that the Code did not adopt the provision in
the icmbs absolutely prohibiting advertising or other forms of promotion to
the general public of products within the scope of the icmbs. Instead, the Milk
Code expressly provides that advertising, promotion, or other marketing mate-
rials may be allowed if such materials are duly authorized and approved by the
Inter-​Agency Committee (iac).
On the other hand, Section 2, Article ii of the 1987 Constitution … embodies
the incorporation method.
….
“Generally accepted principles of international law” refers to norms of gen-
eral or customary international law which are binding on all states, i.e., renun-
ciation 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 ser-
vanda, among others. …

Some legal scholars and judges look upon certain “general principles
of law” as a primary source of international law because they have the
“character of jus rationale” and are “valid through all kinds of human
societies.” (Judge Tanaka in his dissenting opinion in the 1966 South West
Africa Case, 1966 i.c.j. 296). O’Connell holds that certain principles are
part of international law because they are “basic to legal systems gen-
erally” and hence part of the jus gentium. These principles, he believes,
are established by a process of reasoning based on the common identity
of all legal systems. If there should be doubt or disagreement, one must
look to state practice and determine whether the municipal law principle
provides a just and acceptable solution. [citation omitted]

….
Clearly, customary international law is deemed incorporated into our
domestic system.

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wha Resolutions have not been embodied in any local legislation. Have
they attained the status of customary law and should they then be deemed
incorporated as part of the law of the land?
The World Health Organization (who) is one of the international special-
ized agencies allied with the United Nations (UN) by virtue of Article 57, in
relation to Article 63 of the UN Charter. Under the 1946 who Constitution,
it is the wha which determines the policies of the who, and has the power
to adopt regulations concerning “advertising and labeling of biological, phar-
maceutical and similar products moving in international commerce,” and to
“make recommendations to members with respect to any matter within the
competence of the Organization.” The legal effect of its regulations, as opposed
to recommendations, is quite different.
….
Apparently, the wha Resolution adopting the icmbs and subsequent wha
Resolutions urging member states to implement the icmbs are merely recom-
mendatory and legally non-​binding. Thus, unlike what has been done with the
icmbs whereby the legislature enacted most of the provisions into law which is
the Milk Code, the subsequent wha Resolutions, specifically providing for exclu-
sive breastfeeding from 0–​6 months, continued breastfeeding up to 24 months,
and absolutely prohibiting advertisements and promotions of breastmilk substi-
tutes, have not been adopted as a domestic law.
It is propounded that wha Resolutions may constitute “soft law” or non-​
binding norms, principles and practices that influence state behavior.
“Soft law” does not fall into any of the categories of international law set
forth in Article 38, Chapter iii of the 1946 Statute of the International Court
of Justice. It is, however, an expression of non-​binding norms, principles, and
practices that influence state behavior. Certain declarations and resolutions of
the UN General Assembly fall under this category. The most notable is the UN
Declaration of Human Rights, which this Court has enforced in various cases
[citation omitted].
The World Intellectual Property Organization (wipo) , a specialized agency
attached to the UN with the mandate to promote and protect intellectual prop-
erty worldwide, has resorted to soft law as a rapid means of norm creation, in
order “to reflect and respond to the changing needs and demands of its con-
stituents.” Other international organizations which have resorted to soft law
include the International Labor Organization and the Food and Agriculture
Organization (in the form of the Codex Alimentarius).
who has resorted to soft law. This was most evident at the time of the Severe
Acute Respiratory Syndrome (sars) and Avian flu outbreaks.

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Although the ihr Resolution does not create new international law bind-
ing on who member states, it provides an excellent example of the power
of “soft law” in international relations. International lawyers typically dis-
tinguish binding rules of international law-​”hard law”-​from non-​binding
norms, principles, and practices that influence state behavior-​”soft law.”
who has during its existence generated many soft law norms, creating a
“soft law regime” in international governance for public health.
The “soft law” sars and ihr Resolutions represent significant steps in
laying the political groundwork for improved international cooperation on
infectious diseases. These resolutions clearly define who member states’
normative duty to cooperate fully with other countries and with who in
connection with infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the sars
epidemic, the duty is powerful politically for two reasons. First, the sars
outbreak has taught the lesson that participating in, and enhancing,
international cooperation on infectious disease controls is in a country’s
self-​interest … if this warning is heeded, the “soft law” in the sars and
ihr Resolution could inform the development of general and consistent
state practice on infectious disease surveillance and outbreak response,
perhaps crystallizing eventually into customary international law on
infectious disease prevention and control.

…
It must be emphasized that even under such an international emergency,
the duty of a state to implement the ihr Resolution was still considered not
binding or enforceable, although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as custom-
ary law, it must be established that such rule is being followed by states because
they consider it obligatory to comply with such rules (opinio juris). Respondents
have not presented any evidence to prove that the wha Resolutions, although
signed by most of the member states, were in fact enforced or practiced by at least
a majority of the member states; neither have respondents proven that any com-
pliance by member states with said wha Resolutions was obligatory in nature.

C Borovsky v. Commissioner of Immigration (1951)70

[Borovsky was deported in 1947 but, not having been given entry by any receiv-
ing state, was returned to Manila where he continued to be detained. His

70 g.r. No. L-​4352, 28 September 1951.

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first habeas corpus petition was denied71 and, after three years under deten-
tion and without any prospect of finding a receiving state, he returned to the
Supreme Court.
This case is often cited together with Mejoff v. Director of Prisons (1951),72
involving “an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces [during World War ii, and
who] upon liberation, was arrested as a Japanese spy by U. S. Army Counter
Intelligence Corps.” He was likewise ordered deported but no boat would
accept him.73 As in Borovsky, he filed two habeas corpus petitions, likewise in
1949 and 1951, and was released the second time around in a similarly reasoned
and worded decision.]
This is a second petition for habeas corpus filed by the petitioner with
this Court, the first having been denied in a decision promulgated on June
30, 1949.
Victor A. Borovsky, the petitioner, claims to be a stateless citizen, born in
Shanghai, China, of Russian parentage. He came to the Philippines in 1936 and
had resided therein ever since, if the period of his detention be included.
On June 24, 1946, by order of the Commissioner of Immigration, the peti-
tioner was arrested for investigation as to his past activities. Following his
arrest, a warrant for his deportation was issued by the Deportation Board,
which is said to have found him an undesirable alien, a vagrant and habitual
drunkard. …
In May, 1947, the petitioner was put on board a ship which took him to
Shanghai, but he was not allowed to land there because he was not a national
of China and was not provided with an entry visa. He was therefore brought
back to Manila and was confined to the new Bilibid Prison [the national pen-
itentiary for convicted felons] in Muntinlupa until December 8, 1947, when
he was granted provisional release by the President through the Secretary
of Justice for a period of six months. Before the expiration of that period,
namely, on March 20, 1948, the Commissioner of Immigration caused his
rearrest and he has been in confinement in the abovementioned prison
ever since.
….
In this Court’s majority decision on the first application it was observed
that the applicant’s detention was temporary, and it was held that “tempo-
rary detention is a necessary step in the process of exclusion or expulsion of

71 Borovsky v. Commissioner of Immigration, g.r. No. L-​2852, 30 June 1949.

72 g.r. No. L-​4254, 26 September 1951.
73 Mejoff v. Director of Prisons, g.r. No. L-​2855, 30 July 1949.

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undesirable aliens and that pending arrangements for his deportation, the
Government has the right to hold the undesirable alien under confinement for
a reasonable length of time.” …
Over two years having elapsed since the decision aforesaid was promul-
gated, the Government has not found ways and means of removing the peti-
tioner out of the country, and none are in sight, although, it should be said in
justice to the deportation authorities, it was through no fault of theirs that no
ship or country would take the petitioner.
Aliens illegally staying in the Philippines have no right of asylum therein
[citation omitted], even if they are “stateless,” which the petitioner claims to
be. It is no less true however as impliedly stated in this Court’s decision, supra,
and numerous American decisions, that foreign nationals, not enemy, against
whom no criminal charges have been formally made or judicial order issued,
may not indefinitely be kept in detention. The protection against deprivation
of liberty without due process of law and except for crimes committed against
the laws of the land is not limited to Philippine citizens but extends to all resi-
dents, except enemy aliens, regardless of nationality. …
Moreover, by its Constitution (Art. ii, sec. 3) the Philippines “adopts the gen-
erally accepted principles of international law as part of the law of Nation.” And
in a resolution entitled Universal Declaration of Human Rights and approved
by the General Assembly of the United Nations of which the Philippines is a
member, at its plenary meeting on December 10, 1948, the right to life and lib-
erty and all other fundamental rights as applied to all human beings were pro-
claimed. It was there resolved that “All human beings are born free and equal
in degree and rights” (Art. 1); that “Everyone is entitled to all the rights and
freedom set forth in this Declaration, without distinction of any kind, such
as race, colour, sex, language, religion, political or other opinion, nationality
or social origin, property, birth, or other status (Art. 2); that “Everyone has
the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the Constitution or by law”
(Art. 8); that “No one shall be subjected to arbitrary arrest, detention or exile”
(Art. 9); etc.
In U. S. vs. Nichols [citation omitted], it was said that the court “has the power
to release from custody an alien who has been detained an unreasonably long
period of time by the Department of Justice after it has become apparent that
although a warrant for his deportation has been issued, the warrant cannot be
effectuated;” that “the theory on which the court is given the power to act is
that the warrant of deportation, not having been able to be executed, is functus
oficio and the alien is being held without any authority of law.”

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vii Treaties

A How the Philippine State Is Bound

1 The Primacy of the Executive
a Bayan v. Zamora (2000)74
[The Philippines and the United States signed the Visiting Forces Agreement
(vfa) which allowed the use of installations in the Philippine territory by US
military personnel. In October 1998, President Joseph E. Estrada signed the
vfa, and then transmitted it to the Senate for its concurrence under to the
Treaty-​Making Clause of the Constitution. The Senate subsequently approved
the vfa by a 2/​3 vote of its members. Significantly, the Court would eventually
uphold the vfa under the even more stringent requirements of the Military
Bases Clause.]
By constitutional fiat and by the intrinsic nature of his office, the President,
as head of State, is the sole organ and authority in the external affairs of the
country. In many ways, the President is the chief architect of the nation’s for-
eign policy; his “dominance in the field of foreign relations is (then) conceded.”
Wielding vast powers and influence, his conduct in the external affairs of the
nation, as Jefferson describes, is “executive altogether.”
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence
of at least two thirds vote of all the members of the Senate. In this light, the
negotiation of the vfa and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful exercise of his
vast executive and diplomatic powers granted him no less than by the funda-
mental law itself. Into the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it. Consequently, the acts or judgment
calls of the President involving the vfa—​specifically the acts of ratification
and entering into a treaty and those necessary or incidental to the exercise
of such principal acts—​squarely fall within the sphere of his constitutional
powers and thus, may not be validly struck down, much less calibrated by this
Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Court’s considered view that the President, in ratifying the vfa
and in submitting the same to the Senate for concurrence, acted within the
confines and limits of the powers vested in him by the Constitution. It is of
no moment that the President, in the exercise of his wide latitude of discre-
tion and in the honest belief that the vfa falls within the ambit of Section 21,

74 g.r. No. 138570, 10 October 2000.

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Article vii of the Constitution, referred the vfa to the Senate for concurrence
under the aforementioned provision. …
….
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to the ratification.
With the ratification of the vfa, which is equivalent to final acceptance,
and with the exchange of notes between the Philippines and the United States
of America, it now becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of the agreement.
Thus, no less than Section 2, Article ii of the Constitution, declares that the
Philippines 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.

b Pimentel v. Executive Secretary (2005)75

[President Joseph Estrada signed the Rome Statute of the International
Criminal Court in December 2000. He was ousted in January 2001 in a barely
constitutional take-​ over by his Vice-​ President, Gloria Macapagal-​ Arroyo,
who refused to transmit the signed treaty to the Senate for its concurrence.
Petitioners asked the Supreme Court to issue a writ of mandamus to compel
her to do so.]
It is the theory of the petitioners that ratification of a treaty, under both
domestic law and international law, is a function of the Senate. Hence, it is
the duty of the executive department to transmit the signed copy of the Rome
Statute to the Senate to allow it to exercise its discretion with respect to rat-
ification of treaties. Moreover, petitioners submit that the Philippines has a
ministerial duty to ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the Law of
Treaties enjoining the states to refrain from acts which would defeat the object
and purpose of a treaty when they have signed the treaty prior to ratification
unless they have made their intention clear not to become parties to the treaty.
….
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 coun-
try’s sole representative with foreign nations. As the chief architect of foreign

75 g.r. No. 158088, 06 July 2005.

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policy, the President acts as the country’s mouthpiece with respect to inter-
national 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 valid-
ity of the treaty entered into by him.
….
In filing this petition, the petitioners interpret [this] to mean that the power
to ratify treaties belongs to the Senate.
We disagree.
….
Petitioners’ arguments equate the signing of the treaty by the Philippine
representative with ratification. It should be underscored that the signing of
the treaty and the ratification are two separate and distinct steps in the treaty-​
making process. As earlier discussed, the signature is primarily intended as a
means of authenticating the instrument and as a symbol of the good faith of
the parties. It is usually performed by the state’s authorized representative in
the diplomatic mission. Ratification, on the other hand, is the formal act by
which a state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by the
head of the state or of the government. …
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. …
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 con-
currence, 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

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lightly, such decision is within the competence of the President alone, which
cannot be encroached by this Court via a writ of mandamus.

c Vinuya v. Romulo (2010)76

[The “comfort women” enslaved by the Japanese troops during World War ii
sought to compel the Philippine Government to pursue their claim for victim
reparations against the Japanese Government.]
There is a broad range of vitally important areas that must be regularly
decided by the Executive Department without either challenge or interference
by the Judiciary. One such area involves the delicate arena of foreign relations.
It would be strange indeed if the courts and the executive spoke with different
voices in the realm of foreign policy. Precisely because of the nature of the
questions presented, and the lapse of more than 60 years since the conduct
complained of, we make no attempt to lay down general guidelines covering
other situations not involved here, and confine the opinion only to the very
questions necessary to reach a decision on this matter.
….
Certain types of cases often have been found to present political questions.
One such category involves questions of foreign relations. It is well-​established
that “[t]‌he conduct of the foreign relations of our government is commit-
ted 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.”
The US Supreme Court has further cautioned that decisions relating to foreign
policy—​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. They are decisions of a kind for which
the Judiciary has neither aptitude, facilities nor responsibility.
To be sure, not all cases implicating foreign relations present political ques-
tions, and courts certainly possess the authority to construe or invalidate trea-
ties and executive agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a foreign govern-
ment 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

76 g.r. No. 162230, 28 April 2010.

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courts to question. Neither could petitioners herein assail the said determina-
tion by the Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-​Wright Export Corp., the US Supreme
Court held that “[t]‌he President is the sole organ of the nation in its external
relations, and its sole representative with foreign relations.”
….
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 us 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 constitu-
tionally committed.

2 Pacta Sunt Servanda

a Bayan v. Zamora (2000) 77
As an integral part of the community of nations, we are responsible to assure
that our government, Constitution and laws will carry out our international
obligation. Hence, we cannot readily plead the Constitution as a convenient
excuse for non-​compliance with our obligations, duties and responsibilities
under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States
adopted by the International Law Commission in 1949 provides: “Every State
has the duty to carry out in good faith its obligations arising from treaties and
other sources of international law, and it may not invoke provisions in its con-
stitution or its laws as an excuse for failure to perform this duty.”
Equally important is Article 26 of the [vclt] which provides that “Every
treaty in force is binding upon the parties to it and must be performed by them
in good faith.” This is known as the principle of pacta sunt servanda which
preserves the sanctity of treaties and have been one of the most fundamen-
tal principles of positive international law, supported by the jurisprudence of
international tribunals.

b Magallona v. Ermita (2011)78

It may be that baseline provisions of unclos iii, if strictly implemented, may
have an imposing impact on the signatory states’ jurisdiction and even their

77 Supra, note 74.

78 g.r. No. 187167, 16 August 2011.

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206  Chapter 5

sovereignty. But this actuality, without more, can hardly provide a justifying
dimension to nullify the complying ra 9522 [2009 Baselines Law]. As held
by the Court in Bayan Muna v. Romulo, treaties and international agreements
have a limiting effect on the otherwise encompassing and absolute nature of
sovereignty. By their voluntary acts, states may decide to surrender or waive
some aspects of their sovereignty. The usual underlying consideration in this
partial surrender may be the greater benefits derived from a pact or reciprocal
undertaking. On the premise that the Philippines has adopted the generally
accepted principles of international law as part of the law of the land, a por-
tion of sovereignty may be waived without violating the Constitution.
As a signatory of the 1982 [Law of the Sea Convention], it behooves the
Philippines to honor its obligations thereunder. Pacta sunt servanda [is] a
basic international law postulate that “every treaty in force is binding upon
the parties to it and must be performed by them in good faith.” The exacting
imperative of this principle is such that a state may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty.”

c Deutsche Bank v. Commissioner of Internal Revenue (2013)79

By virtue of the rp-​Germany Tax Treaty, we are bound to extend to [the
Deutsche Bank] branch in the Philippines, remitting to its head office in
Germany, the benefit of a preferential rate equivalent to 10% bprt [branch
profit remittance tax].
On the other hand, the bir [Bureau of Internal Revenue] issued rmo
[Revenue Memorandum Order] No. 1 which requires that any availment of the
tax treaty relief must be preceded by an application with the [Bureau] at least
15 days before the transaction. The Order was issued to streamline the process-
ing of the application of tax treaty relief in order to improve efficiency and
service to the taxpayers. Further, it also aims to prevent the consequences of an
erroneous interpretation and/​or application of the treaty provisions (i.e., filing
a claim for a tax refund/​credit for the overpayment of taxes or for deficiency
tax liabilities for underpayment).
….
The cta ruled that prior application for a tax treaty relief is mandatory, and
noncompliance with this prerequisite is fatal to the taxpayer’s availment of the
preferential tax rate.
We disagree.
….

79 g.r. No. 188550, 19 August 2013.

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Our Constitution provides for adherence to the general principles of inter-

national law as part of the law of the land. The time-​honored international
principle of pacta sunt servanda demands the performance in good faith of
treaty obligations on the part of the states that enter into the agreement. Every
treaty in force is binding upon the parties, and obligations under the treaty
must be performed by them in good faith. More importantly, treaties have the
force and effect of law in this jurisdiction.
Tax treatiesare entered into “to reconcile the national fiscal legislations of the
contracting parties and, in turn, help the taxpayer avoid simultaneous taxations
in two different jurisdictions.” [Moreover], “tax conventions are drafted with a
view towards the elimination of international juridical double taxation, which is
defined as the imposition of comparable taxes in two or more states on the same
taxpayer in respect of the same subject matter and for identical periods. …
“A state that has contracted valid international obligations is bound to make
in its legislations those modifications that may be necessary to ensure the ful-
fillment of the obligations undertaken.” Thus, laws and issuances must ensure
that the reliefs granted under tax treaties are accorded to the parties entitled
thereto. The bir must not impose additional requirements that would negate
the availment of the reliefs provided for under international agreements. More
so, when the rp-​Germany Tax Treaty does not provide for any pre-​requisite for
the availment of the benefits under said agreement.
….
The obligation to comply with a tax treaty must take precedence over the objective
of rmo No. 1-​2000. Logically, noncompliance with tax treaties has negative implica-
tions on international relations, and unduly discourages foreign investors. While
the consequences sought to be prevented by rmo No. 1-​2000 involve an admin-
istrative procedure, these may be remedied through other system management
processes, e.g., the imposition of a fine or penalty. But we cannot totally deprive
those who are entitled to the benefit of a treaty for failure to strictly comply with
an administrative issuance requiring prior application for tax treaty relief.

3 Treaties vis-​à-​vis Executive Agreements

a Magallona on the Constitutional Provenance of Executive
Agreements80
1. Our immediate interest in treaties lies in the juridical fact that, upon compli-
ance with constitutional requisites, they become part of Philippine law. In the
language of the Treaty Clause of the Constitution, it comes as a mandate that:

80 Merlin M. Magallona, supra note 15, at 33–​3 7.

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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.81

The Treaty Clause in the 1935 and 1973 Constitutions uses solely the term
“treaty”.82 However, under the present Constitution the addition of “interna-
tional agreement” may raise the question as to whether this could refer to an
instrument other than a treaty, such as “international contract”. Two other pro-
visions of the 1987 Constitution make mention of “international agreement”
but they fail to clarify this point. In requiring the concurrence of a majority
of the Members of the Supreme Court en banc taking part in the deliberation
and voting, Section 4(2), Article viii of the Constitution deals with the consti-
tutionality of “a treaty, international or executive agreement”.83 Under Section
5(2)(a), Article viii of the Constitution, the exercise of the Court’s power of
review pertains to all cases of constitutionality or validity of any “treaty, inter-
national or executive agreement”. These two provisions might have served to
contribute to ambiguity in making it appear that “international agreement”
may be synonymous with “executive agreement”.
It is not implausible at all that ‘international agreement” in the Treaty Clause
of the present Constitution may be employed in departure from the classical
subject-​matter of a “treaty”. Apart from “treaty” the term “international agree-
ment”: may be interpreted to contemplate international agreements set out in
Section 20, Article vii of the Constitution, by which “The President may con-
tract or guarantee foreign loans on behalf of the Republic of the Philippines”.
These loan and guarantee agreements are of three categories: (a) agreement
between the Philippine Republic and another State, (b) agreement between
the Republic and an international organization, and (c) agreement between
the Republic and a private international banking corporation. The third cate-
gory does not qualify under the international law of treaties but may reason-
ably be accommodated in the Treaty Clause when subsumed under “inter-
national agreement,” in which the other party is not a subject or person of
international law.
… Considering that the validity of executive agreements is not derived from
Senate concurrence, it is established that they are not governed by the Treaty
Clause. The opinion that prevailed in the Constitutional Commission that
framed the present Constitution was that the status of executive agreements

81 1987 Const. art. vii, § 21.

82 Except that in Section 15, Article xiv, the 1973 Constitution speaks of “international trea-
ties or agreements”.
83 Emphasis added.

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should be determined by the jurisprudence of the Supreme Court at the time,

as exemplified by usaffe Veterans Association vs. Treasurer of the Philippines84
in which the Court had affirmed that “Executive agreements may be entered
into with other states and are effective even without the concurrence of the
Senate”.

b Procedure for Determination of International Agreements as

Executive Agreements (1988)85
It is an accepted principle recognized in Philippine jurisprudence that inter-
national agreements which have the nature of an executive agreement do not
require the concurrence of the Senate to be valid and effective. Questions,
however, may arise in the Executive branch of the government as what inter-
national agreements entered into by the President are executive agreements.
In the event of any serious question as to whether an international agree-
ment is a treaty which should be submitted to the Senate for concurrence, or
an executive agreement which does not require such concurrence, the mat-
ter should be brought to the attention of the Secretary of the Department of
Foreign Affairs by a memorandum of the official responsible for the negotia-
tion of said agreement. …
The Secretary of the Department of Foreign Affairs shall forthwith make the
proper recommendation to the President.

c Guidelines in Negotiation of International Agreements (1997)86

section 1. Declaration of Policy.—​It is hereby declared the policy of the State
that the negotiations of all treaties and executive agreements, or any amend-
ment thereto, shall be coordinated with, and made only with the participa-
tion of, the Department of Foreign Affairs in accordance with Executive Order
No. 292. …
section 2. Definition of Terms.—​
a. International agreement—​shall refer to a contract or understanding,
regardless of nomenclature, entered into between the Philippines and
another government in written form and governed by international

84 Infra note 88. See also Commissioner of Customs vs. Eastern Sea Trading, infra note 87,
and Commissioner of Internal Revenue vs. John Gotamco & Sons, Inc., g.r. No. L-​31092, 27
February 1987.
85 Mem. Circ. No. 89 (1988). Providing for the procedure for the determination of interna-
tional agreements as executive agreements.
86 Exec. Order No. 459 (1997). Providing for the guidelines in the negotiation of international
agreements and its ratification.

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law, whether embodied in a single instrument or in two or more related

instruments.
b. Treaties—​ 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.
c. Executive Agreements—​similar to treaties except that they do not require
legislative concurrence
….
section 7. Domestic) Requirements for the Entry into Force of a Treaty or
an Executive Agreement.—​The domestic requirements for the entry into force
of a treaty or an executive agreement, or any amendment thereto, shall be as
follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department
of Foreign Affairs after their signing for the preparation of the
ratification papers. …
ii. The Department of Foreign Affairs, pursuant to the endorse-
ment by the concerned agency, shall transmit the agreements to
the President of the Philippines for his ratification. …
B. Treaties.
i. All treaties, regardless of their designation, shall comply with
the[same] requirements provided [for Executive Agreements,
supra]. In addition, the Department of Foreign Affairs shall sub-
mit the treaties to the Senate of the Philippines for concurrence
in the ratification by the President. …

d Commissioner of Customs v. Eastern Sea Trading (1961)87

[The Court of Tax Appeals had held] that the seizure and forfeiture of the goods
imported from Japan cannot be justified under Executive Order No. 328 …
because the same seeks to implement an executive agreement—​extending the
effectivity of our Trade and Financial Agreements with Japan—​which (execu-
tive agreement), it believed, is of dubious validity,
…
The Court of Tax Appeals entertained doubts on the legality of the executive
agreement … owing to the fact that our Senate had not concurred in the mak-
ing of said executive agreement. The concurrence of said House of Congress

87 g.r. No. L-​14279, 31 October 1961.

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is required by our fundamental law in the making of “treaties” (Constitution

of the Philippines, Article vii, Section 10[7]‌), which are, however, distinct and
different from “executive agreements”, which may be validly entered into with-
out such concurrence.

Treaties are formal documents which require ratification with the

approval of two-​thirds of the Senate. Executive agreements become
binding through executive action without the need of a vote by the Senate
or by Congress.
….
[T]‌he 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 into
executive agreements covering such subjects as commercial and con-
sular relations, most-​favored-​nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settle-
ment of claims. The validity of these has never been seriously questioned
by our courts.
….
International agreements involving political issues or changes of
national policy and those involving international arrangements of a
permanent character usually take the form of treaties. But interna-
tional agreements embodying adjustments of detail carrying out well-​
established national policies and traditions and those involving arrange-
ments of a more or less temporary nature usually take the form of
executive agreements.
….
Furthermore, the United States Supreme Court has expressly recog-
nized the validity and constitutionality of executive agreements entered
into without Senate approval.” (39 Columbia Law Review, pp. 753–​754)
[further citations omitted]

In this connection, Francis B. Sayre, former U. S. High Commissioner to the

Philippines, said in his work on “The Constitutionality of Trade Agreement Acts”:

Agreements concluded by the President which fall short of treaties are

commonly referred to as executive agreements and are no less common
in our scheme of government than are the more formal instruments—​
treaties and conventions. They sometimes take the form of exchanges of

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notes and at other times that of more formal documents denominated

‘agreements’ or ‘protocols’. …
39 Columbia Law Review, pp. 651, 755

The validity of the executive agreement in question is thus patent. In fact,

the so-​called Parity Rights provided for in the Ordinance Appended to our
Constitution were, prior thereto, the subject of an executive agreement, made
without the concurrence of two-​thirds (2/​3) of the Senate of the United States.

e usaffe Veterans Association v. Treasurer of the Philippines (1959)88

The central issue in this litigation concerns the validity of the Romulo-​Snyder
Agreement [which] undertook to return to the United States Government
in ten annual installments, a total of about 35-​million dollars advanced by
the United States to, but unexpended by, the National Defense Forces of the
Philippines.
….
On July 26, 1941, foreseeing the War in the Pacific, President Franklin
D. Roosevelt, called into the serve of the Armed Forces of the United States,
for the duration of the emergency, all the organized military forces of the
Philippine Commonwealth. His order was published here by Proclamation
No. 740 of President Quezon on August 10, 1941. In October 1941, by two spe-
cial orders, General Douglas MacArthur, Commanding General of the United
States Army Forces in the Far East (known as usaffe) placed under his com-
mand all the Philippine Army units including the Philippine constabulary,
about 100,000 officers and soldiers.
For the expenses incident to such incorporation mobilization and activi-
ties, the Congress of the United States provided in its Appropriation Act of
December 17, 1941 [citation omitted] as follows:

For all expenses necessary for the mobilization operation and mainte-
nance of the Army of the Philippines, including expenses connected
with calling into the service of the service of the armed forces of the
United States the organized military forces of the Government of
the Commonwealth of the Philippines, … but shall be expended and
accounted for in the manner prescribed by the President of the United
States, $269,000.00; to remain available until June 30, 1943,which shall
be available for payment to the Government of the Commonwealth
of the Philippines upon its written request, either in advance of or in

88 g.r. No. L-​10500, 30 June 1959.

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reimbursement for all or any part of the estimated or actual costs, as

authorized by the Commanding General, United States Army Forces in
the Far East of necessary express for the purposes aforesaid, … .

[Additional appropriations were made annually until 1946.]

…
[T]‌his amount was used (mostly) to discharge in the Philippine Islands the
monetary obligations assumed by the U.S. Government as a result of the induc-
tion of the Philippine Armed Forces into the U.S. Army, and of its operations
beginning in 1941. Part of these obligations consisted in the claims of Filipino
usaffe [United States Army Forces in the Far East] soldiers for arrears in pay
and in the charges for supplies used by them and the guerrillas.
Of the millions so transferred, there remained unexpended and uncom-
mitted in the possession of the Philippine Armed Forces as of December 31,
1949, about 35 million dollars. … After protracted negotiations the deal was
concluded and the Romulo-​Snyder Agreement was signed in Washington on
November 6, 1950, by the then Philippine Secretary of Foreign Affairs, Carlos
P. Romulo, and the then American Secretary of the Treasury, John W. Snyder. …
[The usaffee challenged the validity of the Romulo-​Snyder Agreement
under which the Philippines would return the funds to the United States.].
[T]‌he most important argument, however, rests on the lack of ratification
of the Agreement by the Senate of the Philippines to make it binding on this
Government. On this matter, the defendants explain as follows:

That the agreement is not a ‘treaty’ as that term is used in the Constitution,
is conceded. The agreement was never submitted to Senate for concur-
rence (Art. vii, Sect. 10). (7). However, it must be noted that a treaty is
not the only form that an international agreement may assume. For the
grant of the treaty-​making power to the Executive and the Senate does
not exhaust the power of the government over international relation,
Consequently, executive agreements may be entered into with other
states and are effective even without the concurrence of the Senate [cita-
tions omitted]. It is observed in this connection that from the point of
view of international law, there is no difference between treaties and
executive agreements in their binding effect upon states concerned as
long as the negotiating functionaries have remained within their powers.
[citations omitted]) ‘The distinction between so-​called executive agree-
ments’ and ‘treaties’ is purely a constitutional one and has no interna-
tional legal significance. [citations omitted]
….

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Executive Agreements fall into two classes: (1) agreements made

purely as executive acts affecting external relations and independent of
or without legislative authorization, which may be termed as presiden-
tial agreements, and (2) agreements entered into in pursuance of acts
of Congress, which have been designated as Congressional-​Executive
Agreements. [citations omitted]
The Romulo-​Snyder Agreement may fall under any of these two
classes, for precisely on September 18, 1946, Congress of the Philippines
specifically authorized the President of the Philippines to obtain such
loans or incur such indebtedness with the Government of the United
States, its agencies or instrumentalities (Republic Act No. 16, September
18, 1946, amended by Republic Act No. 213, June 1, 1948). …
Even granting, arguendo, that there was no legislative authorization, it
is hereby maintained that the Romulo-​Snyder Agreement was legally and
validly entered into to conform to the second category, namely, ‘agree-
ments entered into purely as executive acts without legislative authoriza-
tion.’ This second category usually includes money agreements relating
to the settlement of pecuniary claims of citizens. It may be said that this
method of settling such claims has come to be the usual way of dealing
with matters of this kind. [citations omitted]

Such considerations seem persuasive; indeed, the Agreement was not submit-
ted to the U.S. Senate either; … Furthermore, the acts of Congress Appropriating
funds for the yearly installments necessary to comply with such Agreements
constitute a ratification thereof, which places the question of validity out of
the Court’s reach, no constitutional principle having been invoked to restrict
Congress’ plenary power to appropriate funds—​loan or no loan.

f Gonzales v. Hechanova (1963)89

[R]‌espondent Executive Secretary authorized the importation of 67,000
tons of foreign rice to be purchased from private sources [despite a law that]
explicitly prohibits the importation of rice and corn by “the Rice and Corn
Administration or any other government agency.”
….
iv. The Contracts with Vietnam and Burma
It is lastly contended that the Government of the Philippines has already
entered into two (2) contracts for the purchase of rice, one with the Republic

89 g.r. No. L-​21897, 22 October 1963.

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of Vietnam, and another with the Government of Burma; that these contracts
constitute valid executive agreements under international law; that such agree-
ments became binding and effective upon signing thereof by representatives
of the parties thereto; that in case of conflict between Republic Acts Nos. 2207
and 3452 [namely, the statutes that prohibit the importation of rice and corn],
on the one hand, and the aforementioned contracts, on the other, the latter
should prevail, because, if a treaty and a statute are inconsistent with each
other, the conflict must be resolved—​under the American jurisprudence—​in
favor of the one which is latest in point of time; that petitioner herein assails
the validity of acts of the executive relative to foreign relations in the conduct
of which the Supreme Court cannot interfere; and that the aforementioned
contracts have already been consummated, the Government of the Philippines
having already paid the price of the rice involved therein through irrevocable
letters of credit in favor of the sellers of said commodity. We find no merit in
this pretense.
The Court is not satisfied that the status of said contracts as alleged execu-
tive agreements has been sufficiently established. The parties to said contracts
do not appear to have regarded the same as executive agreements. But, even
assuming that said contracts may properly be considered as executive agree-
ments, 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 legis-
lative 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 laws, by indirectly repealing the
same through an executive agreement providing for the performance of the
very act prohibited by said laws.
The American theory to the effect that, in the event of conflict between a
treaty and a statute, the one which is latest in point of time shall prevail, is
not applicable to the case at bar, for respondents not only admit, but, also,
insist that the contracts adverted to are not treaties. Said theory may be jus-
tified upon the ground that treaties to which the United States is signatory
require the advice and consent of its Senate, and, hence, of a branch of the
legislative department. No such justification can be given as regards execu-
tive agreements not authorized by previous legislation, without completely
upsetting the principle of separation of powers and the system of checks and

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balances which are fundamental in our constitutional set up and that of the
United States.

g Intellectual Property Association v. Ochoa (2016)90

[T]‌he Intellectual Property Association of the Philippines (ipap) seeks to
declare the accession of the Philippines to the Protocol Relating to the Madrid
Agreement Concerning the International Registration of Marks (Madrid Protocol)
unconstitutional on the ground of the lack of concurrence by the Senate,
and in the alternative, to declare the implementation thereof as unconstitu-
tional because it conflicts with Republic Act No. 8293, otherwise known as the
Intellectual Property Code of the Philippines (ip Code) .
We find and declare that the President’s ratification is valid and constitu-
tional because the Madrid Protocol, being an executive agreement as deter-
mined by the Department of Foreign Affairs, does not require the concurrence
of the Senate.
The Madrid System for the International Registration of Marks (Madrid
System), which is the centralized system providing a one-​stop solution for reg-
istering and managing marks worldwide, allows the trademark owner to file
one application in one language, and to pay one set of fees to protect his mark
in the territories of up to 97 member-​states. The Madrid System is governed by
the Madrid Agreement, concluded in 1891, and the Madrid Protocol, concluded
in 1989.
….
According to the ipap, the Madrid Protocol is a treaty, not an executive
agreement; …
….
[T]‌he registration of trademarks and copyrights have been the subject of
executive agreements entered into without the concurrence of the Senate.
Some executive agreements have been concluded in conformity with the
policies declared in the acts of Congress with respect to the general subject
matter.
It then becomes relevant to examine our state policy on intellectual prop-
erty in general, as reflected in Section 2 of our ip Code, to wit:

Section 2. Declaration of State Policy.—​The State recognizes that an effec-

tive intellectual and industrial property system is vital to the develop-
ment of domestic and creative activity, facilitates transfer of technology,

90 g.r. No. 204605, 19 July 2016.

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attracts foreign investments, and ensures market access for our products.
It shall protect and secure the exclusive rights of scientists, inventors, art-
ists and other gifted citizens to their intellectual property and creations,
particularly when beneficial to the people, for such periods as provided
in this Act.
The use of intellectual property bears a social function. To this end, the
State shall promote the diffusion of knowledge and information for the
promotion of national development and progress and the common good.
It is also the policy of the State to streamline administrative proce-
dures of registering patents, trademarks and copyright, to liberalize the
registration on the transfer of technology, and to enhance the enforce-
ment of intellectual property rights in the Philippines.

In view of the expression of state policy having been made by the Congress
itself, the ipap is plainly mistaken in asserting that “there was no Congressional
act that authorized the accession of the Philippines to the Madrid Protocol.”
Accordingly, dfa Secretary Del Rosario’s determination and treatment of
the Madrid Protocol as an executive agreement, being in apparent contem-
plation of the express state policies on intellectual property as well as within
his power under Executive Order No. 459, are upheld. We observe at this point
that there are no hard and fast rules on the propriety of entering into a treaty
or an executive agreement on a given subject as an instrument of international
relations. The primary consideration in the choice of the form of agreement is
the parties’ intent and desire to craft their international agreement in the form
they so wish to further their respective interests. The matter of form takes a
back seat when it comes to effectiveness and binding effect of the enforcement
of a treaty or an executive agreement, inasmuch as all the parties, regardless
of the form, become obliged to comply conformably with the time-​honored
principle of pacta sunt servanda. The principle binds the parties to perform in
good faith their parts in the agreements.

h Bayan Muna v. Romulo (2011)91

This petition … seeks to nullify the Non-​Surrender Agreement concluded by
and between the Republic of the Philippines (rp) and the United States of
America (USA).
….

91 g.r. No. 159618, 01 February 2011 (infra Ch. iv.B, The Rome Statute before the Philippine
Supreme Court).

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Petitioner’s initial challenge against the Agreement relates to form, its thresh-
old posture being that [the Exchange of Notes] cannot be a valid medium for
concluding the [Philippine-​United States Non-​Surrender] Agreement.
Petitioners’ contention—​perhaps taken unaware of certain well-​recognized
international doctrines, practices, and jargons—​is untenable. One of these
is the doctrine of incorporation, as expressed in Section 2, Article ii of the
Constitution, wherein the Philippines adopts the generally accepted princi-
ples of international law and international jurisprudence as part of the law of
the land and adheres to the policy of peace, cooperation, and amity with all
nations. An exchange of notes falls “into the category of inter-​governmental
agreements,” which is an internationally accepted form of international
agreement.
…
In another perspective, the terms “exchange of notes” and “executive agree-
ments” have been used interchangeably, exchange of notes being considered a
form of executive agreement that becomes binding through executive action.
On the other hand, executive agreements concluded by the President “some-
times take the form of exchange of notes and at other times that of more for-
mal documents denominated ‘agreements’ or ‘protocols.’ ”
….
Under international law, there is no difference between treaties and exec-
utive agreements in terms of their binding effects on the contracting states
concerned, as long as the negotiating functionaries have remained within their
powers. Neither, on the domestic sphere, can one be held valid if it violates the
Constitution. Authorities are, however, agreed that one is distinct from another
for accepted reasons apart from the concurrence-​requirement aspect. As has
been observed by US constitutional scholars, a treaty has greater “dignity” than
an executive agreement, because its constitutional efficacy is beyond doubt,
a treaty having behind it the authority of the President, the Senate, and the
people; a ratified treaty, unlike an executive agreement, takes precedence over
any prior statutory enactment.
…
Pressing its point, petitioner submits that the subject of the Agreement does
not fall under any of the subject-​categories that are enumerated in the Eastern
Sea Trading case … such as commercial/​consular relations, most-​favored
nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
….
We are not persuaded.

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The categorization of subject matters that may be covered by international

agreements mentioned in Eastern Sea Trading is not cast in stone. There are no
hard and fast rules on the propriety of entering, on a given subject, into a treaty
or an executive agreement as an instrument of international relations. The pri-
mary consideration in the choice of the form of agreement is the parties’ intent
and desire to craft an international agreement in the form they so wish to fur-
ther their respective interests. Verily, the matter of form takes a back seat when
it comes to effectiveness and binding effect of the enforcement of a treaty or
an executive agreement, as the parties in either international agreement each
labor under the pacta sunt servanda principle.
As may be noted, almost half a century has elapsed since the Court rendered
its decision in Eastern Sea Trading. Since then, the conduct of foreign affairs
has become more complex and the domain of international law wider, as to
include such subjects as human rights, the environment, and the sea. … Surely,
the enumeration in Eastern Sea Trading cannot circumscribe the option of
each state on the matter of which the international agreement format would
be convenient to serve its best interest.

i Whether or Not There Is a Need for a Legislative Ratification of

the Agreement on the Common Effective Preferential Tariff (cept)
Scheme for the asean Free Trade Heads of Government in Singapore
on January 27–​28, 1992 (1992)92
Section 402 of the Tariff and Customs Code provides additional argument on
why Senate concurrence on the subject agreement may be dispensed with.
Said section of law provides insofar as relevant:

“a. For the purpose of expanding foreign markets for Philippine products
as a means of assistance in the economic development of the country,
in overcoming domestic unemployment, in increasing the purchasing
power of the Philippine peso, and in establishing and maintaining better
relations between the Philippines, and other countries, the President, is
authorized from time to time:
(1) To enter into trade agreements with foreign governments or instru-
mentalities thereof; and
(2) To modify import duties (including any necessary change in classifi-
cation) and other import restrictions
….

92 doj Opinion No. 071, 03 June 1992.

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Likewise, we have also ruled that whether or not there is need for an inter-
national agreement to be ratified after its signature in order to bind the party-​
signatories thereto would depend upon their intention (Sec. of Justice Opn. No.
71, s. 1988 citing Brownlie, Public International Law and O’Connell, International
Law). In the case of the agreement in question, a perusal of its provisions dis-
closes that it becomes “effective upon signing thereof.” (See par. 3, Art. 10). It is
clear, therefore, that the contracting parties did not intend the agreement in
question be subjected to legislative ratification for its consequent binding effect.

j “Legal status” of the 1971 Technical Cooperation Agreement between

the Republic of the Philippines and the Federal Republic of Germany,
Specifically Pertaining to Tax Exemptions and Other Privileges
(2001)93
For one, the subject Agreement, which aims to intensify the technical and
economic development of both parties, does not in any way, involve political
issues or changes of national policy. On the contrary, the Agreement, as well
as its revisions in 1987 and, as proposed, in 1999, provides for details in carry-
ing out the purpose of supporting development cooperation between the two
(2) countries. For another, the subject 1971 Technical Cooperation Agreement
and the consequent Arrangements provide for a definite period within which
they shall remain in force. Thus, said agreements/​arrangements are not of a
permanent character but only temporary in nature.
In this connection, the fact that the 1971 Technical Cooperation Agreement
embodies provisions on tax exemptions which ordinarily should be found in a
treaty does not necessarily detract from its nature as an executive agreement
on the assumption that the tax exemptions granted therein are based on pro-
visions of existing laws and that the Agreement only seeks to effectuate or
implement these provisions insofar as they may apply to the situations con-
templated in the Agreement.

B How Treaties Are Enforced Domestically: The Role of the Legislative

Branch
1 Tañada v. Angara (1997)94
[Petitioners challenged the Philippine ratification of the Agreement
Establishing the World Trade Organization for violating the protectionist
clauses of the Constitution.]

93 doj Opinion No. 041, 25 July 2001.

94 g.r. No. 118295, 02 May 1997.

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Arguing mainly (1) that the wto requires the Philippines “to place nationals
and products of member-​countries on the same footing as Filipinos and local
products” and (2) that the wto “intrudes, limits and/​or impairs” the constitu-
tional powers of both Congress and the Supreme Court, the instant petition
before this Court assails the wto Agreement for violating the mandate of the
1987 Constitution to “develop a self-​reliant and independent national economy
effectively controlled by Filipinos … [to] give preference to qualified Filipinos
[and to] promote the preferential use of Filipino labor, domestic materials and
locally produced goods.”
….
The wto Agreement provides that “[e]‌ach Member shall ensure the con-
formity of its laws, regulations and administrative procedures with its obli-
gations as provided in the annexed Agreements.” Petitioners maintain that
this undertaking “unduly limits, restricts and impairs Philippine sovereignty,
specifically the legislative power which under Sec. 2, Article vi of the 1987
Philippine Constitution is vested in the Congress of the Philippines. It is an
assault on the sovereign powers of the Philippines because this means that
Congress could not pass legislation that will be good for our national inter-
est and general welfare if such legislation will not conform with the wto
Agreement, which not only relates to the trade in goods … but also to the
flow of investments and money … as well as to a whole slew of agreements on
socio-​cultural matters …”
….
Sovereignty Limited by International Law and Treaties
[W]‌ hile sovereignty has traditionally been deemed absolute and all-​
encompassing on the domestic level, it is however subject to restrictions and
limitations voluntarily agreed to by the Philippines, expressly or impliedly,
as a member of the family of nations. … In its Declaration of Principles and
State Policies, the Constitution “adopts the generally accepted principles of
international law as part of the law of the land …” By the doctrine of incor-
poration, the country is bound by generally accepted principles of interna-
tional law, which are considered to be automatically part of our own laws.
One of the oldest and most fundamental rules in international law is pacta
sunt servanda—​international agreements must be performed in good faith.
“A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties … A state which has contracted valid
international obligations is bound to make in its legislations such modi-
fications as may be necessary to ensure the fulfillment of the obligations
undertaken.”

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By their inherent nature, treaties really limit or restrict the absoluteness

of sovereignty. By their voluntary act, nations may surrender some aspects of
their state power in exchange for greater benefits granted by or derived from
a convention or pact. … Thus, treaties have been used to record agreements
between States concerning such widely diverse matters as, for example, the
lease of naval bases, the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of alliances, the regulation
of commercial relations, the settling of claims, the laying down of rules gov-
erning conduct in peace and the establishment of international organizations.
The sovereignty of a state therefore cannot in fact and in reality be considered
absolute. Certain restrictions enter into the picture: (1) limitations imposed
by the very nature of membership in the family of nations and (2) limitations
imposed by treaty stipulations. ….
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the “con-
cept of sovereignty as auto-​limitation.” Under Article 2 of the UN Charter,
“[a]‌ll members shall give the United Nations every assistance in any action
it takes in accordance with the present Charter, and shall refrain from giving
assistance to any state against which the United Nations is taking preventive
or enforcement action.” Such assistance includes payment of its correspond-
ing share not merely in administrative expenses but also in expenditures
for the peace-​keeping operations of the organization. … In this sense, the
Philippine Congress is restricted in its power to appropriate. It is compelled
to appropriate funds whether it agrees with such peace-​keeping expenses
or not. So too, under Article 105 of the said Charter, the UN and its repre-
sentatives enjoy diplomatic privileges and immunities, thereby limiting
again the exercise of sovereignty of members within their own territory.
Another example: although “sovereign equality” and “domestic jurisdiction”
of all members are set forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement measures decided by the
Security Council for the maintenance of international peace and security
under Chapter vii of the Charter. A final example: under Article 103, “[i]n
the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other
international agreement, their obligation under the present charter shall
prevail,” thus unquestionably denying the Philippines—​as a member—​the
sovereign power to make a choice as to which of conflicting obligations, if
any, to honor.

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2 Tolentino v. Secretary of Finance (1994)95

The contention that the constitutional design is to limit the Senate’s power in
respect of revenue bills in order to compensate for the grant to the Senate of
the treaty-​ratifying power and thereby equalize its powers and those of the
House overlooks the fact that the powers being compared are different. We
are dealing here with the legislative power. which under the Constitution is
vested not in any particular chamber but in the Congress of the Philippines,
consisting of “a Senate and a House of Representatives.” The exercise of the
treaty-​ratifying power is not the exercise of legislative power. It is the exercise
of a check on the executive power. There is, therefore, no justification for com-
paring the legislative powers of the House and of the Senate on the basis of
the possession of such non-​legislative power by the Senate. The possession of
a similar power by the U.S. Senate has never been thought of as giving it more
legislative powers than the House of Representatives.

3 Pimentel v. Executive Secretary (2005)96

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 pro-
vides 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.

4 Bayan v. Zamora (2000)97

As to the power to concur with treaties, the Constitution lodges the same with
the Senate alone. Thus, once the Senate performs that power, or exercises its
prerogative within the boundaries prescribed by the Constitution, the concur-
rence cannot, in like manner, be viewed to constitute an abuse of power, much

95 g.r. No. 115455, 25 August 1994.

96 g.r. No. 158088, 06 July 2005.
97 Supra note 74.

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224  Chapter 5

less grave abuse thereof. Corollarily, the Senate, in the exercise of its discretion
and acting within the limits of such power, may not be similarly faulted for
having simply performed a task conferred and sanctioned by no less than the
fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in
character; the Senate, as an independent body possessed of its own erudite
mind, has the prerogative to either accept or reject the proposed agreement,
and whatever action it takes in the exercise of its wide latitude of discretion,
pertains to the wisdom rather than the legality of the act. In this sense, the
Senate partakes a principal, yet delicate, role in keeping the principles of
separation of powers and of checks and balances alive and vigilantly ensures
that these cherished rudiments remain true to their form in a democratic gov-
ernment such as ours. The Constitution thus animates, through this treaty-​
concurring power of the Senate, a healthy system of checks and balances indis-
pensable toward our nation’s pursuit of political maturity and growth. True
enough, rudimentary is the principle that matters pertaining to the wisdom
of a legislative act are beyond the ambit and province of the courts to inquire.

5 Guerrero’s Transport Services v. btea-​k ilusan (1976)98

Pursuant to Section 6 of Article i of the Philippine-​U. S. Labor Agreement of
May 27, 1968, the United States Armed Forces undertook, consistent with mili-
tary requirements, “to provide security, for employment, and, in the event cer-
tain services are contracted out, the United States Armed Forces shall require
the contractor or consideration to give priority consideration to affected
employees for employment.”
A treaty has two (2) aspects—​as an international agreement between states,
and as municipal law for the people of each state to observe. As part of the
municipal law, the aforesaid provision of the treaty enters into and forms part
of the contract between petitioner and the U.S. Naval Base authorities. In view
of said stipulation, the new contractor is, therefore, bound to give “priority” to
the employment of the qualified employees of the previous contractor.

6 Philip Morris, Inc. v. Court of Appeals (1993)99

Philip Morris, Incorporated is a corporation organized under the laws of the
State of Virginia, United States of America, and … two other plaintiff foreign
corporations. … are similarly not doing business in the Philippines. … [They

98 g.r. No. L-​41518, 30 June 1976.

99 g.r. No. 91332, 16 July 1993.

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Sources of International Law 225

claim] that defendant Fortune Tobacco Corporation has no right to manufac-

ture and sell cigarettes bearing the allegedly identical or confusingly similar
trademark. …
Another point which petitioners considered to be of significant interest,
and which they desire to impress upon us is the protection they enjoy under
the Paris Convention of 1965 to which the Philippines is a signatory. …
[P]‌etitioners are of the impression that actual use of their trademarks in
Philippine commercial dealings is not an indispensable element under Article
2 of the Paris Convention. …
Yet petitioners’ perception along this line is nonetheless resolved by Sections
2 and 2-​A of the [Philippine]Trademark Law which speak loudly about the
necessity of actual commercial use of the trademark in the local forum: …
Following universal acquiescence and comity, our municipal law on trade-
marks regarding the requirement of actual use in the Philippines must subor-
dinate [sic—​prevail over] an international agreement inasmuch as the appar-
ent clash is being decided by a municipal tribunal [citation omitted]. Withal,
the fact that international law has been made part of the law of the land does
not by any means imply the primacy of international law over national law in
the municipal sphere. Under the doctrine of incorporation as applied in most
countries, rules of international law are given a standing equal, not superior, to
national legislative enactments [citation omitted].

7 In re Garcia (1961)100
Arturo E. Garcia has applied for admission to the practice of law in the
Philippines without submitting to the required bar examinations. [H]‌e avers,
among others, that he is a Filipino citizen born in Bacolod City, Province of
Negros Occidental, of Filipino parentage; that he had taken and finished in
Spain, the course of “Bachillerato Superior”; that he was approved, selected
and qualified by the “Instituto de Cervantes” for admission to the Central
University of Madrid where he studied and finished the law course graduating
there as “Licenciado En Derecho”; that thereafter he was allowed to practice
the law profession in Spain; and that under the provisions of the Treaty on
Academic Degrees and the Exercise of Professions between the Republic of the
Philippines and the Spanish state, he is entitled to practice the law profession
in the Philippines without submitting to the required bar examinations.
After due consideration, the Court resolved to deny the petition on the fol-
lowing grounds:

100 unav (Resolution), 112 phil 884-​886, 15 August 1961.

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226  Chapter 5

(1) The provisions of the Treaty on Academic Degrees and the Exercise of
Professions between the Republic of the Philippines and the Spanish
State cannot be invoked by applicant. Under Article 11 thereof;

The Nationals of each of the two countries who shall have obtained recog-
nition of the validity of their academic degrees by virtue of the stipula-
tions of this Treaty, can practice their professions within the territory of the
Other …

from which it could clearly be discerned that said Treaty was intended to
govern Filipino citizens desiring to practice their profession in Spain, and
the citizens of Spain desiring to practice their professions in the Philippines.
Applicant is a Filipino citizen desiring to practice the legal profession in the
Philippines. He is therefore subject to the laws of his own country and is not
entitled to the privileges extended to Spanish nationals desiring to practice in
the Philippines.
(2) Article i of the Treaty, in its pertinent part, provides:

The nationals of both countries who shall have obtained degrees or diplo-
mas to practice the liberal professions in either of the Contracting States,
issued by competent national authorities, shall be deemed competent to
exercise said professions in the territory of the Other, subject to the laws
and regulations of the latter. …”

It is clear, therefore, that the privileges provided in the Treaty invoked by the
applicant are made expressly subject to the laws and regulations of the con-
tracting State in whose territory it is desired to exercise the legal profession;
and [the Rules of Court], which have the force of law, require that before any-
one can practice the legal profession in the Philippines he must first success-
fully pass the required bar examinations; and
(3) The aforementioned Treaty, concluded between the Republic of the
Philippines and the Spanish State could not have been intended to
modify the laws and regulations governing admission to the prac-
tice of law in the Philippines, for the reason that the Executive
Department may not encroach upon the constitutional prerogative
of the Supreme Court to promulgate rules for admission to the prac-
tice of law in the Philippines, the power to repeal, alter or supplement
such rules being reserved only to the Congress of the Philippines.
[citation omitted]

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8 U.S. v. Purganan, Vitug, J., Dissenting Opinion (2002)101

The elevated status of a treaty over that of an ordinary statute is taking ground
[I]‌n consonance with the Vienna Convention, a state cannot plead provi-
sions of its own laws or deficiencies in that law in an answer to a claim against
it for an alleged breach of its obligations under international law. From the
standpoint of International Law and of the International Court [of Justice],
municipal laws are merely expressions of the will and constitute the activities
of the states within its boundaries in the same manner as do ordinary legal
decisions or administrative measures. But, viewed domestically, reactions
have been varied. Differing internal laws among the members of the interna-
tional community has resulted in the divergence of responses when treaty law
clashes with ordinary municipal law.
In the United Kingdom, despite pronouncements that the law of nations is
“adopted in its full extent by common law and is held to be part of the law of
the land,” cases decided since 1876 point to the displacement of the doctrine
of incorporation by that of transformation, viz.: customary law is part of the
law of England only insofar as the rules have been clearly adopted and made
part of England by legislation, judicial decision, or established usage. In the
United States there has not been much hesitation in recognizing the priority
of legislative enactment when passed not only in contravention of established
custom but even of the provisions of a specific treaty. Meeting objection to
the validity of a tax on immigrants as a violation of the “numerous treaties of
the US government with friendly nations,” the United States Supreme Court,
in the Head Money Cases [citation omitted], observed: A treaty, then, is a law
of the land as an act of Congress whenever its provisions prescribe a rule by
which the rights of the private citizen or subject may be determined, and when
such rights are of a nature to be enforced in a court of justice, courts resort to
treaties for a rule of decision of the case as it would to a statute. Nevertheless,
added the Court, “so far as a treaty made by the US with any foreign nation
can become subject of judicial cognizance in the courts of this country, it is
subject to such acts as Congress may pass for its enforcement, modification
or repeal.” In France, a treaty has supremacy over an inconsistent prior statute
as long as the other state party to the agreement accords a similar superior-
ity in its domestic forum. French precedent also exists for treaty supremacy
over a subsequent inconsistent statute. The European Court once ruled that

101 g.r. No. 148571, 17 December 2002..

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228  Chapter 5

the European Economic Community Treaty has precedence over national law,
even if the national law were later in time.
This ambivalent attitude towards the relationship between international
and municipal law exemplifies the still on-​going debate between two schools
of thought—​”monism” and “dualism”. …
In the Philippines, while specific rules on how to resolve conflicts between
a treaty law and an act of Congress, whether made prior or subsequent to its
execution, have yet to be succinctly defined, the established pattern, how-
ever, would show a leaning towards the dualist model. The Constitution
exemplified by its incorporation clause (Article ii, Section 2), as well as
statutes such as those found in some provisions of the Civil Code and of
the Revised Penal Code, would exhibit a remarkable textual commitment
towards “internalizing” international law. The Supreme Court itself has rec-
ognized that “the principle of international law” are deemed part of the law
of the land as a condition and as a consequence of our admission in the
society of nations.
The principle being that treaties create rights and duties only for those who
are parties thereto—​pacta tertiis nec nocre nec prodesse possunt—​it is consid-
ered necessary to transform a treaty into a national law in order to make it
binding upon affected state organs, like the courts, and private individuals who
could, otherwise, be seen as non-​parties. The us-​r p Extradition Treaty in par-
ticular, undoubtedly affects not only state organs but also private individuals
as well. It is said that, in treaties of this nature, it should behoove the state to
undertake or adopt the necessary steps to make the treaty binding upon said
subjects either by incorporation or transformation. Article 2, Section 2, of the
1987 Philippine Constitution provides for an adherence to general principles of
international law as part of the law of the land. One of these principles is the
basic rule of pacta sunt servanda or the performance in good faith of a state’s
treaty obligations. Pacta sunt servanda is the foundation of all conventional
international law, for without it, the superstructure of treaties, both bilateral
and multilateral, which comprise a great part of international law, could well
be inconsequential. Existing legislation contrary to the provisions of the treaty
becomes invalid, but legislation is necessary to put the treaty into effect. The
constitutional requirement that the treaty be concurred in by no less than two-​
thirds of all members of the Senate (Article 21, Article vii) is, for legal intent
and purposes, an equivalent to the required transformation of treaty law into
municipal law.
In preserving harmony between treaty law and municipal law, it is submitted—​
1) That treaty law has the effect of amending, or even repealing an inconsistent

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municipal statute, a later enactment being controlling, 2) but that an inconsistent

municipal statute subsequently passed cannot modify treaty law, without the con-
currence of the other state party thereto, following the generally accepted princi-
ple of pacta sunt servanda. …
A treaty, nevertheless, cannot override the Constitution; in case of conflict, the
Constitution must prevail
When a controversy calls for a determination of the validity of a treaty in the
light of the Constitution, there is no question but that the Constitution is given
primary consideration. The deference to the interpretation of the national
law by competent organs of a state, was exhibited by the Permanent Court
of International Justice in the case of Serbian Loans where it held that the
construction given by the Highest Court of France on French law should be fol-
lowed. When a state, through its government, concludes a treaty with another
state, the government of the latter has no reason and is not entitled to question
the constitutionality of the act of the former. But this rule does not prevent the
government of a state, after having concluded a treaty with another state, from
declaring the treaty null and void because it is made in violation of its own
constitution.

9 Abaya v. Ebdane (2007)102

[The Philippine Government and the Japan Bank for International Cooperation
(jbic) signed a Loan Agreement for a public works construction project. The
petitioners seek to nullify the award of the project to China Road & Bridge
Corporation because its bid was “overpriced” since it exceeded the “ceilings
or upper limits of every bid” set under the authority of Republic Act No. 9184,
known as the Government Procurement Reform Act. The respondent argued
inter alia that the Loan Agreement, being an Executive Agreement, was beyond
the scope of that law.]
The petitioners insist that Loan Agreement No. ph-​p 204 … is neither a
treaty, an international nor an executive agreement that would bar the appli-
cation of ra 9184. They point out that to be considered [as such], the parties
must be two sovereigns or States whereas in the case of Loan Agreement No.
ph-​p 204, the parties are the Philippine Government and the jbic, a banking
agency of Japan, which has a separate juridical personality from the Japanese
Government.
….

102 g.r. No. 167919, 14 February 2007.

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230  Chapter 5

The public respondents characterize foreign loan agreements, including

Loan Agreement No. ph-​p 204, as executive agreements and, as such, should
be observed pursuant to the fundamental principle in international law of
pacta sunt servanda.
….
The petitioners’ arguments fail to persuade. The Court holds that Loan
Agreement No. ph-​p 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.
To recall, Loan Agreement No. ph-​p 204 was executed by and between
the jbic and the Philippine Government pursuant to the Exchange of Notes
[which] expressed that the two governments have reached an understanding
concerning Japanese loans to be extended to the Philippines and that these
loans were aimed at promoting our country’s economic stabilization and
development efforts.
Loan Agreement No. ph-​p 204 was subsequently executed and [] was so
entered by the parties “[i]‌n the light of the contents of the Exchange of
Notes. …” Under the circumstances, the jbic may well be considered an
adjunct of the Japanese Government. Further, Loan Agreement No. ph-​
p204 is indubitably an integral part of the Exchange of Notes. It forms part
of the Exchange of Notes such that it cannot be properly taken independent
thereof.
….
Significantly, an exchange of notes is considered a form of an executive
agreement, which becomes binding through executive action without the
need of a vote by the Senate or Congress.
….
The jbic Procurements Guidelines, as quoted earlier, forbids any procedure
under which bids above or below a predetermined bid value assessment are
automatically disqualified. Succinctly put, it absolutely prohibits the imposi-
tion of ceilings on bids.
Under the fundamental principle of international law of pacta sunt ser-
vanda, which is, in fact, embodied in Section 4 of ra 9184 as it provides that
“[a]‌ny treaty or international or executive agreement affecting the subject
matter of this Act to which the Philippine government is a signatory shall be
observed,” the [Department of Public Works], as the executing agency of the
projects financed by Loan Agreement No. ph-​p 204, rightfully awarded the
contract for the implementation of civil works for the cp i project to private
respondent China Road & Bridge Corporation.

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10 Suplico v. National Economic Development Authority (2008)103

The Government Procurement Reform Act requires public bidding in all pro-
curement of infrastructure, goods and services. …
Respondents admit that there was no public bidding for the zte Supply
Contract. Respondents do not claim that the zte Supply Contract falls under
any of the exceptions to public bidding in Article xvi of the Government
Procurement Reform Act. Instead, private respondent zte Corporation claims
that the zte Supply Contract, being part of an executive agreement, is exempt
from public bidding under. … the Government Procurement Reform Act.
….
Private respondent zte Corporation’s argument will hold water if an exec-
utive agreement can amend the mandatory statutory requirement of public
bidding in the Government Procurement Reform Act. In short, the issue turns
on the novel question of whether an executive agreement can amend or repeal
a prior law. The obvious answer is that an executive agreement cannot amend
or repeal a prior law.
Admittedly, an executive agreement has the force and effect of law, just like
implementing rules of executive agencies. However, just like implementing
rules of executive agencies, executive agreements cannot amend or repeal
prior laws but must comply with the laws they implement. Only a treaty, upon
ratification by the Senate, acquires the status of a municipal law. Thus, a treaty
may amend or repeal a prior law and vice-​versa. Hence, a treaty may change
state policy embodied in a prior law.
In sharp contrast, an executive agreement, being an exclusive act of the
Executive branch, does not have the status of a municipal law. Acting alone,
the Executive has no law-​making power. While the Executive does possess
rule-​making power, such power must be exercised consistent with the law it
seeks to implement.
Consequently, an executive agreement cannot amend or repeal a prior law.
An executive agreement must comply with state policy embodied in existing
municipal law. This Court has declared:

International agreements involving political issues or changes of national

policy and those involving international arrangements of a permanent
character usually take the form of treaties. But international agreements
embodying adjustments of detail carrying out well-​established national

103 g.r. No. 178830, 14 July 2008.

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232  Chapter 5

policies and traditions and those involving arrangements of a more or less

temporary nature usually take the form of executive agreements.

Executive agreements are intended to carry out well-​established national pol-

icies, and these are found in statutes.
In the United States, from where we adopted the concept of executive agree-
ments, the prevailing view is that executive agreements cannot alter existing law
but must conform with all statutory requirements. The U.S. State Department
has explained the distinction between treaties and executive agreements in
this manner:

… it may be desirable to point out here the well-​recognized distinction

between an executive agreement and a treaty. In brief, it is that the former
cannot alter the existing law and must conform to all statutory enactments,
whereas a treaty, if ratified by and with the advice and consent of two-​
thirds of the Senate, as required by the Constitution, itself becomes the
supreme law of the land and takes precedence over any prior statutory
enactments.

….
Clearly, an executive agreement must comply with well-​established state
policies, and these state policies are laid down in statutes. The Government
Procurement Reform Act has laid down a categorical state policy—​"All pro-
curement shall be done through Competitive Bidding”, subject only to narrowly
defined exceptions that respondents do not invoke here. Consequently, the
executive agreement between China and the Philippines cannot exempt the
zte Supply Contract from the state policy of public bidding.
Private respondent zte Corporation further claims that the zte Supply
Contract is part of the executive agreement between China and the Philippines.
This is plain error. An executive agreement is an agreement between govern-
ments. The Executive branch has defined an “international agreement”, which
includes an executive agreement, to refer to a contract or an understanding
“entered into between the Philippines and another government.”
That the Chinese Government handpicked the zte Corporation to sup-
ply the goods and services to the Philippine Government does not make the
zte Supply Contract an executive agreement. zte Corporation is not a gov-
ernment or even a government agency performing governmental or devel-
opmental functions like the Export-​Import Bank of China or the Japan Bank
for International Cooperation, or a multilateral lending agency organized by
governments like the World Bank. zte Corporation is a business enterprise

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performing purely commercial functions. zte Corporation is publicly listed in

the Hong Kong and Shenzhen stock exchanges, with individual and juridical
stockholders that receive dividends from the corporation.
Moreover, an executive agreement is governed by international law.
However, the zte Supply Contract expressly provides that it shall be governed
by Philippine law. Thus, the zte Supply Contract is not an executive agree-
ment but simply a commercial contract, which must comply with public bid-
ding as mandated by the governing law, which is Philippine law.
Finally, respondents seek refuge in the second sentence of Section 4 of the
Government Procurement Reform Act:

Section 4. Scope and Application.—​This Act shall apply to the Procurement

of Infrastructure Projects, Goods and Consulting Services, regardless of
the source of funds, whether local or foreign, … 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.

Respondents argue that the second sentence of Section 4 allows an execu-

tive agreement to override the mandatory public bidding in Section 10 of the
Government Procurement Reform Act.
Respondents’ argument is flawed. First, an executive agreement, being an
exclusive act of the Executive branch, cannot amend or repeal a mandatory
provision of law requiring public bidding in government procurement con-
tracts. … Thus, the second sentence of Section 4 cannot be construed to del-
egate to the President the legislative power to amend or repeal mandatory
requirements in the Government Procurement Reform Act.
….
The executive agreements cannot refer to the waiver of public bidding for
two reasons. First, the law only allows the President to “waive or modify, the
application of any law … imposing restrictions on international competitive
bidding.” The law does not authorize the President to waive entirely public
bidding but only the restrictions on public bidding. Thus, the President may
restrict the public bidding to suppliers domiciled in the country of the creditor.
This is the usual modification on restrictions imposed by creditor countries.
Second, when the law speaks of executive agreements on the method or proce-
dure in the comparison of bids, the obvious assumption is there will be compet-
itive bidding. Third, there is no provision of law allowing waiver of public bid-
ding outside of the well-​defined exceptions in Article xvi of the Government
Procurement Reform Act.
….

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Executive agreements with lending institutions have never been understood

to allow exemptions from public bidding. What the executive agreements can
modify are the methods or procedures in the comparison of bids, such as the
adoption of the competitive bidding procedures or guidelines of the Japan Bank
for International Cooperation or the World Bank on the method or procedure
in the evaluation or comparison of bids. It is self-​evident that these procedures
or guidelines require public bidding.

11 International School Alliance of Educators v. Quisumbing

(2000)104
[The International School, Inc. was established primarily for dependents of
foreign diplomatic personnel and other temporary residents in the Philippines.
It hires both foreign and local teachers as members of its faculty. Foreign-​hired
faculty enjoy benefits which are not given to local hires, e.g., housing, transpor-
tation, shipping costs, taxes and home leave travel allowance. Their salaries are
also twenty-​five percent (25%) higher than those of local hires. The differential
treatment was meant to compensate foreign hires for their “dislocation” and
limited tenure. The Court held that “point-​of-​hire” classification was an invalid
classification because there is no reasonable distinction in the work performed
by foreign hires and local hires.]
International law, which springs from general principles of law, likewise pro-
scribes discrimination. General principles of law include principles of equity,
i.e., the general principles of fairness and justice, based on the test of what
is reasonable. The Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial Discrimination, the
Convention against Discrimination in Education, the Convention (No.
111) Concerning Discrimination in Respect of Employment and Occupation—​
all embody the general principle against discrimination, the very antithesis of
fairness and justice. The Philippines, through its Constitution, has incorpo-
rated this principle as part of its national laws.
….
Notably, the International Covenant on Economic, Social, and Cultural
Rights in Article 7 thereof, provides:

104 g.r. No. 128845, 01 June 2000.

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Sources of International Law 235

The States Parties to the present Covenant recognize the right of every-
one to the enjoyment of just and favorable conditions of work, which
ensure, in particular:

a. Remuneration which provides all workers, as a minimum, with:

i. Fair wages and equal remuneration for work of equal value with-
out distinction of any kind, in particular women being guaran-
teed conditions of work not inferior to those enjoyed by men,
with equal pay for equal work;
….
The foregoing provisions impregnably institutionalize in this jurisdiction
the long honored legal truism of “equal pay for equal work.” Persons who work
with substantially equal qualifications, skill, effort and responsibility, under
similar conditions, should be paid similar salaries. This rule applies to the
School, its “international character” notwithstanding.

12 Agustin v. Edu (1979)105

[President Marcos issued a Letter of Instruction making early warning
devices (ewds) mandatory for all motor vehicles citing inter alia, the 1968
Vienna Convention on Road Signs and Signals which had been ratified by the
Philippines. The petitioner assails the requirement as onerous and confisca-
tory because he owns car which already came equipped with blinking lights
which could very well serve the purpose of ewds. The Court upheld the ewd
requirement as a valid exercise of the police power of the state.]
The conclusion reached by this Court that this petition must be dismissed is
reinforced by this consideration. The petition itself quoted these two whereas
clauses of the assailed Letter of Instruction: “[Whereas], the hazards posed
by such obstructions to traffic have been recognized by international bod-
ies concerned with traffic safety, the 1968 Vienna Convention on Road Signs
and Signals and the United Nations Organization (U.N.); [Whereas], the said
Vienna Convention, which was ratified by the Philippine Government under
p.d. No. 207, recommended the enactment of local legislation for the installa-
tion of road safety signs and devices; …” It cannot be disputed then that this
Declaration of Principle found in the Constitution possesses relevance: “The
Philippines … adopts the generally accepted principles of international law as
part of the law of the land, …” The 1968 Vienna Convention on Road Signs and
Signals is impressed with such a character. It is not for this country to repudiate

105 g.r. No. L-​49112, 02 February 1979.

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a commitment to which it had pledged its word. The concept of pacta sunt
servanda stands in the way of such an attitude, which is, moreover, at war with
the principle of international morality.

13 Reyes v. Bagatsing (1983)106

[The city government of Manila denied the petitioners’ application for a per-
mit to hold a protest rally against U.S. military bases, to be held in front of the
U.S. Embassy. The petitioners invoked their right to freedom of speech and of
assembly.]
The Philippines is a signatory of the Vienna Convention on Diplomatic
Relations adopted in 1961. It was concurred in by the then Philippine Senate
on May 3, 1965 and the instrument of ratification was signed by the President
on October 11, 1965, and was thereafter deposited with the Secretary General
of the United Nations on November 15. As of that date then, it was binding on
the Philippines. The second paragraph of its Article 22 reads: “2. The receiving
State is under a special duty to take appropriate steps to protect the premises
of the mission against any intrusion or damage and to prevent any disturbance
of the peace of the mission or impairment of its dignity.” The Constitution
“adopts the generally accepted principles of international law as part of the
law of the land, …” To the extent that the Vienna Convention is a restatement
of the generally accepted principles of international law, it should be a part
of the law of the land. That being the case, if there were a clear and present
danger of any intrusion or damage, or disturbance of the peace of the mis-
sion, or impairment of its dignity, there would be a justification for the denial
of the permit insofar as the terminal point would be the Embassy. Moreover,
respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohib-
iting the holding or staging of rallies or demonstrations within a radius of five
hundred (500) feet from any foreign mission or chancery; and for other pur-
poses. Unless the ordinance is nullified, or declared ultra vires, its invocation as
a defense is understandable but not decisive, in view of the primacy accorded
the constitutional rights of free speech and peaceable assembly. Even if shown
then to be applicable, that question still confronts this Court.

14 Tecson v. Commission on Elections, Puno,J., Separate Opinion

(2004)107
[The petitioners sought to disqualify a popular presidential candidate,
Fernando Poe Jr., on the ground that he was not a natural-​born citizen of the

106 g.r. No. L-​65366, 09 November 1983.

107 g.r. No. 161434, 03 March 2004.

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Sources of International Law 237

Philippines as required by the Constitution. They claimed that his father was
Spanish and his mother, American. Even assuming that his father was Filipino,
he could not have thereby acquired Filipino-​citizenship because his parents
had not yet gotten married at the time of his birth and he would be an illegit-
imate child who, under Philippine law, follows the citizenship of the mother,
the only legally known parent. The Court held that the 1935 Constitution which
was in force when he was born, conferred citizenship to all persons whose
fathers are Filipino citizens regardless of whether such children are legitimate
or illegitimate. The excerpt below discusses the Convention on the Rights of
the Child and the issue of discrimination based on illegitimate status.]
To Disqualify Respondent Poe Because He Is Illegitimate Will Violate Our
Treaty Obligation
The Convention on the Rights of the Child was adopted by the General
Assembly of the United Nations on November 20, 1989. The Philippines was the
31st state to ratify the Convention in July 1990 by virtue of Senate Resolution
109. The Convention entered into force on September 2, 1990. A milestone
treaty, it abolished all discriminations against children including discrimina-
tions on account of “birth or other status.” Part 1, Article 2 (1) of the Convention
explicitly provides:

Article 2
1. State Parties shall respect and ensure the rights set forth in the pres-
ent Convention to each child within their jurisdiction without dis-
crimination of any kind, irrespective of the child’s or his or her par-
ent’s or legal guardian’s race colour, sex, language religion, political
or other opinion, national, ethnic or social origin, property, disability,
birth or other status.

The Convention protects in the most comprehensive way all rights of chil-
dren: political rights, civil rights, social rights, economic rights and cultural
rights. It adopted the principle of interdependence and indivisibility of chil-
dren’s rights. A violation of one right is considered a violation of the other
rights. It also embraced the rule that all actions of a State concerning the child
should consider the “best interests” of the child.
Pursuant to Article vii, Section 21 of the 1987 Constitution, this Convention
on the Rights of the child became valid and effective on us in July 1990 upon
concurrence by the Senate. We shall be violating the Convention if we disqual-
ify respondent Poe just because he happened to be an illegitimate child. It is
our bounden duty to comply with our treaty obligation pursuant to the princi-
ple of pacta sunt servanda.

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238  Chapter 5

C How the Philippine State Is Unbound: Treaty Withdrawal

1 Adolfo v. Court of First Instance (1970)108
[A warrant of arrest was issued for an American working at the U.S. Naval Base
in Subic Bay charged for a crime committed outside the base. Under the U.S.-​
Philippines Military Bases Agreement, such crimes committed by U.S. service-
men fell within the jurisdiction of the local municipal court but, pending trial
and conviction, custody is entrusted to the base commander. The accused was
a civilian employee. However, a subsequent exchange of notes extended the
custody privilege to the “civilian component” of the base. The excerpt below
is obiter dicta because the accused eventually posted bail and mooted the
controversy.]
The petition thus squarely raised in issue the validity of the exchange
of notes on August 10, 1965, more commonly known as the Mendez-​Blair
Agreement insofar as it would modify or amend the provisions of the Military
Bases Agreement without such exchange of notes having been submitted to
the Senate for ratification as the Constitution requires in the case of treaties.
It made a distinction between a treaty and executive agreements, to which
category the aforesaid exchange of notes belongs. … These [executive] agree-
ments are certainly not in the plane of … the U.S.-​Philippines Military Bases
Agreement, which affects and reduces to a certain degree the territorial author-
ity, the jurisdiction and even the dignity of the country and its people. Said Base
Agreement undoubtedly involves more than a national policy, and is practically
of a permanent nature (99 years or longer, Art. xxix, ibid.). Therefore, said
Agreement is a treaty which must be ratified, as it was ratified, by the Senate.”
The petition reinforced the above conclusion with this argument: “Since the
power to make treaties is lodged under our Constitution with the President
with the concurrence of two-​thirds of the Senate, the power to amend these
treaties must similarly be vested in those organs of the government. After all,
an amendment to a statute produces one law, usually the statute as amended.
[citation omitted] In pari materia is the observation that only Congress, with
its legislative power, can make laws and alter or repeal them [citation omitted].
The Chief Executive, with all his vast powers, cannot suspend the operation of
a statute [citation omitted] , a fortiori he cannot exercise the greater power to
amend or to revoke a statute. Therefore, as applied to this case, the making of
the treaty having been undertaken under the joint auspices of the President
and the Senate, its amendment or revision must similarly be undertaken by
both agencies of the State as directed by the Constitution. The August 10, 1965

108 g.r. No. L-​30650, 31 July 1970.

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Sources of International Law 239

notes to the U.S.-​p.i. Military Bases Agreement of 1947, not having been ratified
yet by the Senate, remain as mere proposals.”

2 Senate Resolution Concurring in the Ratification of the Articles of

Agreement of the Asian Infrastructure Investment Bank109
whereas, the Articles of Agreement of the Asian Infrastructure Investment
Bank (aiib) was signed on 31 December 2015 in China; …
whereas, President Benigno S. Aquino iii and President Rodrigo Roa
Duterte ratified the Agreement on 4 February 2016 and 19 October 2016, respec-
tively; …
Resolved, That the Senate of the Philippines concur, as it hereby con-
curs, in the Philippine ratification of the Articles of Agreement of the Asian
Infrastructure Investment Bank.
Resolved, finally, That the President of the Philippines may, with the con-
currence of the Senate, withdraw the membership of the Philippines from the
Asian Infrastructure Investment Bank.

3 Senate Resolution Expressing the Sense of the Senate That

Termination of, or Withdrawal from, Treaties and International
Agreements Concurred in by the Senate Shall Be Valid and
Effective Only upon Concurrence by the Senate110
whereas, Article 14 of Republic Act No. 386, otherwise known as the Civil
Code of the Philippines, provides: “Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in the Philippine territory
subject to the principles of public international law and to treaty stipulations.”;
whereas, the power to bind the Philippines by treaty or international
agreement is vested jointly by the Constitution in the President and the Senate;
whereas, a treaty or international agreement ratified by the President and
concurred in by the Senate becomes part of the law of the land and may not be
undone without the shared power that put it into effect;
whereas, the principle of checks and balances, historical precedent and
practice accepted as law in most jurisdictions, and the Constitution’s dictate
for a shared treaty-​making power require that a termination, withdrawal, abro-
gation or renunciation of a treaty or international agreement can only be done
with the same authority that gave it effect -​executive ratification with Senate
concurrence: Now, therefore, be it

109 S. Res. 33, 17th Cong. (2016).

110 S. Res. 289, 17th Cong. (pending Second Reading as of 15 February 2017).

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240  Chapter 5

resolved by the senate, to express its sense that termination of, or

withdrawal from, treaties and international agreements concurred in by the
Senate shall be valid and effective only upon concurrence by the Senate.

4 Senate Resolution Concurring in the Accession to the Paris

Agreement111
whereas, the Philippines acceded to the United Nations Framework
Convention on Climate Change (unfccc) in August 1994;
whereas, the Paris Agreement was signed on 22 April 2016 in New York; …
whereas, under the Agreement, emissions reduction or programs for
adaptation are nationally-​determined and voluntary;
whereas, the President of the Philippines ratified the Agreement on 28
February 2017 and has accordingly submitted it to the Senate for concurrence,
in accordance with the Constitution; …
Now, therefore, be it
Resolved, That the Philippine Senate concur, as it hereby concurs, in the
Philippine accession to the Paris Agreement.
Resolved, finally, That the President of the Philippines may, with the con-
currence of two-​thirds of all the Members of the Senate, withdraw from the
Agreement.

5 Senate Resolution Expressing the Sense of the Senate, That

Termination of, or Withdrawal from, Treaties and International
Agreements Concurred in by the Senate Shall Be Valid and
Effective Only upon Concurrence by the Senate112
whiereas, the power to bind the Philippines by treaty or international agree-
ment is vested jointly by the Constitution in the President and the Senate;
whereas, the Supreme Court in Saguisag v. Executive Secretary [citation
omitted] recognized the shared power of the President and Senate in the
sphere of foreign affairs;
whereas, a treaty or international agreement ratified by the President and
concurred in by the Senate becomes part of the law of the land and may not be
undone without the shared power that put it into effect;
whereas, the principle of checks and balances, historical precedent and
practice accepted as law in most jurisdictions, and the Constitution’s dictate
for a shared treaty-​making power require that a termination, withdrawal,

111 S. Res. 42, 17th Cong. (2017).

112 S. Res. 305, 18th Cong. (pending in the committee as of 3 February 2020).

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Sources of International Law 241

abrogation or renunciation of a treaty or international agreement can only be

done with the same authority that gave it effect -​executive ratification with
Senate concurrence;
whereas, recognizing the role of the Senate in the withdrawal, abroga-
tion or renunciation of treaties, fourteen (14) senators co-​signed and filed
in the Seventeenth Congress p.s. Resolution No. 289 “Resolution Expressing
the Sense of the Senate That Termination Of, Or Withdrawal From, Treaties
and International Agreements Concurred in by the Senate Shall Be Valid and
Effective Only Upon Concurrence By the Senate;
whereas, the Seventeenth Congress adopted twenty (20) resolutions con-
curring in the ratification of or accession to various treaties and international
agreements which provides that the President of the Philippines may, with the
concurrence of the Senate, withdraw from the Agreement: Now, therefore, be it
resolved by the senate, to express its sense that termination of, or
withdrawal from, treaties and international agreements concurred in by the
Senate shall be valid and effective only upon concurrence by the Senate.

6 Senate Resolution Expressing the Sense of the Senate for the

President to Reconsider His Plan to Withdraw from the Visiting
Forces Agreement with the United States of America in the
Meantime That the Senate Is Conducting a Thorough Review of
the Same113
To express as it hereby expresses, the sense of the Senate to earnestly request
the President to reconsider his planned abrogation of the Visiting Forces
Agreement in the meantime that the Senate is conducting a thorough review
of the same.

7 Senate Resolution Asking the Honorable Supreme Court of the

Philippines to Rule on Whether or Not the Concurrence of the
Senate Is Necessary in the Abrogation of a Treaty Previously
Concurred in by the Senate114
whereas, the text of the 1987 Constitution is clear as regards the required con-
currence of the Senate for the validity of a treaty or international agreement;
whereas, there is obviously a lacuna legis -​an absence of any explicit pro-
vision in the 1987 Constitution—​as to whether or not the concurrence of the

113 S. Res. 37, 18th Cong. (2020).

114 S. Res. 39, 18th Cong. (2020).

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242  Chapter 5

Senate is necessary for the termination of any treaty earlier concurred in by

the Body;
whereas, considering the urgency of the determination of the purely legal
question of whether or not the concurrence of the Senate is necessary in the
abrogation of a treaty previously concurred in by the Senate, now is the most
opportune time for this august body to obtain from the Honorable Supreme
Court its declaration on this legal question;
whereas, the ambiguity on the concurrence of the Senate in the abroga-
tion of treaty involves an issue of transcendental importance that impacts on
the country’s constitutional checks and balances. It presents a constitutional
issue that seriously affects the country’s legal system as well as the country’s
relations with the international community;
now therefore be it resolved, as it is hereby resolved to ask
the Honorable Supreme Court of the Philippines to rule on whether or not the
concurrence of the Senate is necessary in the abrogation of a treaty previously
concurred in by the Senate.

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 ­c hapter 6

U.S. Military Bases

Overview

The continuing military presence of the United States, a former colonizer,

is a historical irritant for the Philippines. It has come before Philippine
courts in two lines of cases. The first involves U.S. claims of immunities from
Philippine jurisdiction for American personnel that are discussed, infra, in Ch.
8 (Immunities). The second, which is taken up in this chapter, deals with the
proper legal form of the international agreements to allow their presence on
Philippine soil.
This issue carries with it such historical baggage that the 1987 Philippine
Constitution, adopted after the fall of the Marcos dictatorship, contains a
specific provision that governs sui generis treaties that allow “foreign military
bases, troops or facilities.” Whereas generic treaties already require the con-
currence of a supermajority in the Senate, military bases treaties are subject to
an additional requirement, namely, that the treaty be “recognized as a treaty
by the other contracting State.” The Supreme Court states that the Military
Bases Clause in the Constitution expresses the “marked antipathy towards
foreign military presence in the country”,1 whose foothold on Philippine soil
was secured way back in the United States-​sponsored independence law of
1934 and the treaty whereby the United States transferred sovereignty to the
Philippines in 1946. Following that treaty, the two countries signed the 1947
Military Bases Agreement where the Philippines granted the United States
the “right to retain the use of the bases in the Philippines.”2 This Agreement
expired in 1991 and was not renewed.
On the other hand, the two countries also signed the 1951 Mutual Defense
Treaty, which remains in place to the present and provides that “an armed
attack in the Pacific area on either of the Parties would be dangerous to its own
peace and safety and declares that it would act to meet the common dangers
in accordance with its constitutional processes.”3

1 Lim v. Executive Secretary, g.r. No. 151445, 11 April 2002.

2 Agreement between the United States of America and the Republic of the Philippines
Concerning Military Bases, 61 Stat. 4019; Treaties and Other International Acts Series 1775 (26
March 1947).
3 Mutual Defense Treaty between the Republic of the Philippines and the United States of
America, tias 2529; 3 ust 3947–​3952 (30 August 1951).

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244  Chapter 6

The Military Bases Clause of the 1987 Constitution was applied by the
Supreme Court for the first time on the 1998 Philippines-​United States Visiting
Forces Agreement (vfa). Significantly, the Philippines has signed vfas with
other countries, several of which were not submitted to the Senate for its
concurrence and were signed solely as Executive Agreements despite the fact
that they involved the presence of foreign troops taking part in joint military
exercises (see Section viii, Opinions of the Secretary of Justice: Other Military
Agreements Treated as Mere Executive Agreements, infra).
However, in the case of the vfa with the United States, the President
treated it as a generic treaty under the Treaty-​Making Clause, but the Supreme
Court, actually validated the vfa in bayan v. Zamora under the more strin-
gent requirements of the Military Bases Clause. Ironically, the Supreme Court,
having taken the stronger position in applying the Military Bases rather than
the Treaty-​Making, Clause, then proceeded to dilute the requirement that the
agreement be “recognized as a treaty by the other contracting State.” The fact,
on the other hand, is that the Philippines signed vfa as a treaty, while the
United States treated it as a mere executive agreement. The Court stated that
the treaty/​executive agreement distinction exists merely in domestic constitu-
tional law, and that by whatever name or title, such agreements are “treaties”
under the Vienna Convention on the Law of Treaties (vclt) . This conflates
the international definition of treaties under the vclt, with the domestic law
distinction between treaties/​executive agreements. The Court’s reading emas-
culates the legal symmetry and parity that the “recognized as a treaty” clause
sought to achieve.
In Lim, the vclt was invoked once again when, pursuant to the vfa, a
joint military exercise was conducted by the two countries and it was asked
whether the joint military exercise was an “activity” authorized under the vfa.
The Court took recourse to the vclt rules on interpretation of treaties and
concluded that “combat-​related activities—​as opposed to combat itself” were
covered by the vfa.
While Supreme Court decisions on the U.S. military bases always attract
attention, Nicolas is in a class by itself. It involved the conviction of a U.S. ser-
viceman for the rape of a Filipina. The question was where he would serve
his sentence. The vfa merely stated that this would be agreed upon by the
two states’ authorities. That agreement was embodied in the Romulo-​Kenney
Agreement, named after the Philippines Secretary of Foreign Affairs and the
U.S. Ambassador, and stating that the convicted person would be held in cus-
tody at the U.S. Embassy, guarded by U.S. military personnel, but subject to
inspection by the Philippine Department of Interior and Local Governments.

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U.S. Military Bases 245

The Supreme Court struck this down, because the vfa specifically stated that
the Philippines will have custody after conviction.
In Nicolas, the Court revisited the “recognized as a treaty” clause, in light
of the Medellin v. Texas decision of the U.S. Supreme Court which limited the
enforceability of a treaty in a state court. The Philippine Supreme Court held
that the vfa was self-​executing and was therefore binding even under the
terms of Medellin.
Finally in Saguisag, the latest form of mutual defense arrangements
between the Philippines and the United States was the Enhanced Defense
Cooperation Agreement (edca) which identified “agreed locations” for the
“activities” under the vfa. To its oppositors, this was tantamount to foreign
military bases. However, the Court validated the edca as a mere executive
agreement because it merely implements an existing treaty, namely, the vfa.
The Court held that the strict requirements of the Military Bases Clause can-
not apply because, in this case, it was not under the edca but under the vfa
that foreign troops “gained entry” or were “allowed.”

i 1987 Constitution of the Republic of the Philippines4

After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning military bases, for-
eign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other con-
tracting State.

ii Philippine Commonwealth and Independence Act (1934)5

Recognition of Philippine Independence and Withdrawal of

American Sovereignty
section 10. (a) On the 4th day of July immediately following the expiration of
a period of ten years from the date of the inauguration of the new government
under the constitution provided for in this Act the President of the United

4 1987 Const. art. xviii, § 25 [emphasis added].

5 48 Stat. 456 (1934) [emphasis added].

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246  Chapter 6

States shall by proclamation withdraw and surrender all right of possession,

supervision, jurisdiction, control, or sovereignty then existing and exercised by
the United States in and over the territory and people of the Philippine Islands,
including all military and other reservations of the Government of the United
States in the Philippines (except such naval reservations and fueling stations as
are reserved under section 5). …

iii Treaty of General Relations between the Republic of the

Philippines and the United States of America (1946)6

Article i. The United States of America agrees to withdraw and surrender, and
does hereby withdraw and surrender, all right of possession, supervision, juris-
diction, control or sovereignty existing and exercised by the United States of
America in and over the territory and the people of the Philippine Islands,
except the use of such bases, necessary appurtenances to such bases, and the
rights incident thereto, as the United States of America, by agreement with
the Republic of the Philippines, may deem necessary. … The United States of
America further agrees to recognize, and does hereby recognize, the indepen-
dence of the Republic of the Philippines as a separate self-​governing nation
and to acknowledge, and does hereby acknowledge, the authority and control
over the same of the Government instituted by the people thereof, under the
Constitution of the Republic of the Philippines.

iv Bayan v. Zamora (2000)7

[In] 1947, the Philippines and the United States of America forged a Military
Bases Agreement which formalized, among others, the use of installations in
the Philippine territory by United States military personnel. …
In view of the impending expiration of [this] Agreement in 1991, the
Philippine Senate rejected the proposed rp-​u s Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence
of US military bases in the Philippines. …
[In 1998, the President signed the vfa. He transmitted it to the Senate, and
the Senate gave its concurrence, under the Treaty Making Clause.]

6 4 July 1946. Made public through Proc. No. 11 (1946) [emphasis added].
7 g.r. No. 138570, 10 October 2000.

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….
One focal point of inquiry in this controversy is the determination of
which provision of the Constitution applies, with regard to the exercise by the
Senate of its constitutional power to concur with the vfa. Petitioners argue
that Section 25, Article xviii [Military Bases Clause] is applicable considering
that the vfa has for its subject the presence of foreign military troops in the
Philippines. Respondents, on the contrary, maintain that Section 21, Article
vii [Treaty Making Clause] should apply inasmuch as the vfa is not a basing
arrangement but an agreement which involves merely the temporary visits of
United States personnel engaged in joint military exercises.
….
It is our considered view that both constitutional provisions, far from con-
tradicting each other, actually share some common ground. These constitu-
tional provisions both embody phrases in the negative and thus, are deemed
prohibitory in mandate and character. In particular, Section 21 opens with the
clause “No treaty …,” and Section 25 contains the phrase “shall not be allowed.”
Additionally, in both instances, the concurrence of the Senate is indispensable
to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the vfa to the Senate under
Section 21, Article vii, and that the Senate extended its concurrence under the
same provision, is immaterial. For in either case, whether under Section 21,
Article vii or Section 25, Article xviii, the fundamental law is crystalline that
the concurrence of the Senate is mandatory to comply with the strict constitu-
tional requirements.
On the whole, the vfa is an agreement which defines the treatment of
United States troops and personnel visiting the Philippines. It provides for the
guidelines to govern such visits of military personnel, and further defines the
rights of the United States and the Philippine government in the matter of
criminal jurisdiction, movement of vessel and aircraft, importation and expor-
tation of equipment, materials and supplies.
Undoubtedly, Section 25, Article xviii, which specifically deals with trea-
ties involving foreign military bases, troops, or facilities, should apply in the
instant case. To a certain extent and in a limited sense, however, the provisions
of Section 21, Article vii will find applicability with regard to the issue and for
the sole purpose of determining the number of votes required to obtain the
valid concurrence of the Senate, as will be further discussed hereunder.
….
Moreover, it is specious to argue that Section 25, Article xviii is inapplica-
ble to mere transient agreements for the reason that there is no permanent
placing of structure for the establishment of a military base. On this score,

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248  Chapter 6

the Constitution makes no distinction between “transient” and “permanent.”

Certainly, we find nothing in Section 25, Article xviii that requires foreign
troops or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermeneutics that when no distinction is made by
law the Court should not distinguish—​Ubi lex non distinguit nec nos distinguire
debemos.
In like manner, we do not subscribe to the argument that Section 25, Article
xviii is not controlling since no foreign military bases, but merely foreign
troops and facilities, are involved in the vfa. Notably, a perusal of said consti-
tutional provision reveals that the proscription covers “foreign military bases,
troops, or facilities.” Stated differently, this prohibition is not limited to the
entry of troops and facilities without any foreign bases being established. The
clause does not refer to “foreign military bases, troops, or facilities” collectively
but treats them as separate and independent subjects. The use of comma and
the disjunctive word “or” clearly signifies disassociation and independence of
one thing from the others included in the enumeration, such that, the pro-
vision contemplates three different situations—​a military treaty the subject
of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign
facilities—​any of the three standing alone places it under the coverage of
Section 25, Article xviii.
….
At this juncture, we shall then resolve the issue of whether or not the
requirements of Section 25 were complied with when the Senate gave its con-
currence to the vfa.
Section 25, Article xviii disallows foreign military bases, troops, or facilities
in the country, unless the following conditions are sufficiently met, viz: (a) it
must be under a treaty; (b) the treaty must be duly concurred in by the Senate
and, when so required by Congress, ratified by a majority of the votes cast by
the people in a national referendum; and (c) recognized as a treaty by the
other contracting state.
…
Applying the foregoing constitutional provisions, a two-​thirds vote of all the
members of the Senate is clearly required so that the concurrence contem-
plated by law may be validly obtained and deemed present. While it is true
that Section 25, Article xviii requires, among other things, that the treaty—​
the vfa, in the instant case—​be a “duly concurred in by the Senate,” it is very
true however that said provision must be related and viewed in light of the
clear mandate embodied in Section 21, Article vii, which in more specific
terms, requires that the concurrence of a treaty, or international agreement, be

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made by a two-​thirds vote of all the members of the Senate. Indeed, Section 25,
Article xviii must not be treated in isolation to Section 21, Article, vii.
….
Having resolved that the first two requisites prescribed in Section 25, Article
xviii are present, we shall now pass upon and delve on the requirement that
the vfa should be recognized as a treaty by the United States of America.
Petitioners contend that the phrase “recognized as a treaty,” embodied in
Section 25, Article xviii, means that the vfa should have the advice and con-
sent of the United States Senate pursuant to its own constitutional process,
and that it should not be considered merely an executive agreement by the
United States.
In opposition, respondents argue that the letter of United States Ambassador
Hubbard stating that the vfa is binding on the United States Government is
conclusive, on the point that the vfa is recognized as a treaty by the United
States of America. According to respondents, the vfa, to be binding, must only
be accepted as a treaty by the United States.
This Court is of the firm view that the phrase “recognized as a treaty” means
that the other contracting party accepts or acknowledges the agreement as a
treaty. To require the other contracting state, the United States of America in
this case, to submit the vfa to the United States Senate for concurrence pursu-
ant to its Constitution, is to accord strict meaning to the phrase.
….
Moreover, it is inconsequential whether the United States treats the vfa
only as an executive agreement because, under international law, an executive
agreement is as binding as a treaty. To be sure, as long as the vfa possesses the
elements of an agreement under international law, the said agreement is to be
taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an
international instrument concluded between States in written form and gov-
erned by international law, whether embodied in a single instrument or in two
or more related instruments, and whatever its particular designation.” There
are many other terms used for a treaty or international agreement. … All writ-
ers, from Hugo Grotius onward, have pointed out that the names or titles of
international agreements included under the general term treaty have little or
no legal significance. Certain terms are useful, but they furnish little more than
mere description.
Article 2(2) of the Vienna Convention provides that “the provisions of para-
graph 1 regarding the use of terms in the present Convention are without prej-
udice to the use of those terms, or to the meanings which may be given to them
in the internal law of the State.”

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Thus, in international law, there is no difference between treaties and exec-

utive agreements in their binding effect upon states concerned, as long as the
negotiating functionaries have remained within their powers. International
law continues to make no distinction between treaties and executive agree-
ments: they are equally binding obligations upon nations.

v Lim v. Executive Secretary (2002)8

Beginning January of this year 2002, personnel from the armed forces of the
United States of America started arriving in Mindanao to take part, in conjunc-
tion with the Philippine military, in “Balikatan 02-​1.” These so-​called Balikatan
exercises are the largest combined training operations involving Filipino and
American troops. In theory, they are a simulation of joint military maneuvers
pursuant to the [1951] Mutual Defense Treaty. …
The lapse of the US-​Philippine Bases Agreement in 1992 and the decision not
to renew it created a vacuum in US-​Philippine defense relations, that is, until
it was replaced by the Visiting Forces Agreement. It should be recalled that on
October 10, 2000, by a vote of eleven to three, this Court upheld the validity of
the vfa. The vfaprovides the “regulatory mechanism” by which “United States
military and civilian personnel [may visit] temporarily in the Philippines in
connection with activities approved by the Philippine Government.” …
The first question that should be addressed is whether “Balikatan 02-​1” is
covered by the Visiting Forces Agreement. To resolve this, it is necessary to
refer to the vfa itself. Not much help can be had therefrom, unfortunately,
since the terminology employed is itself the source of the problem. The vfa
permits United States personnel to engage, on an impermanent basis, in “activ-
ities,” the exact meaning of which was left undefined. The expression is ambig-
uous, permitting a wide scope of undertakings subject only to the approval of
the Philippine government. The sole encumbrance placed on its definition is
couched in the negative, in that United States personnel must “abstain from
any activity inconsistent with the spirit of this agreement, and in particular,
from any political activity.” All other activities, in other words, are fair game.
We are not left completely unaided, however. The Vienna Convention on
the Law of Treaties, which contains provisos governing interpretations of
international agreements, state:
section 3.—​i nterpretation of treaties

8 g.r. No. 151445, 11 April 2002.

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Article 31, General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their con-
text and in the light of its object and purpose.
….
4. A special meaning shall be given to a term if it is established that the
parties so intended.
Article 32, Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of
its conclusion, in order to confirm the meaning resulting from the appli-
cation of article 31, or to determine the meaning when the interpretation
according to article 31:

a) leaves the meaning ambiguous or obscure; or

b) leads to a result which is manifestly absurd or unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must
involve an examination of the text, which is presumed to verbalize the par-
ties’ intentions. The Convention likewise dictates what may be used as aids to
deduce the meaning of terms, which it refers to as the context of the treaty,
as well as other elements may be taken into account alongside the aforesaid
context. …
The Terms of Reference rightly fall within the context of the vfa.
After studied reflection, it appeared farfetched that the ambiguity sur-
rounding the meaning of the word “activities” arose from accident. In our view,
it was deliberately made that way to give both parties a certain leeway in nego-
tiation. In this manner, visiting US forces may sojourn in Philippine territory
for purposes other than military. As conceived, the joint exercises may include
training on new techniques of patrol and surveillance to protect the nation’s
marine resources, sea search-​and-​rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.
Under these auspices, the vfa gives legitimacy to the current Balikatan exer-
cises. It is only logical to assume that “Balikatan 02-​1,” a “mutual anti-​terrorism
advising, assisting and training exercise,” falls under the umbrella of sanc-
tioned or allowable activities in the context of the agreement. Both the history
and intent of the Mutual Defense Treaty and the vfa support the conclusion
that such as the one subject of the instant petition, are indeed authorized.

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vi Nicolas v. Romulo (2009)9

[Respondent Lance Corporal (L/​c pl) Daniel Smith was a member of the
United States Armed Forces who was tried and found guilty of having raped a
Filipino woman.]
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.
During the trial, … the United States Government faithfully complied with
its undertaking to bring defendant Smith to the trial court every time his pres-
ence was required.
[After trial, the trial court found him guilty beyond reasonable doubt and
stated that he shall serve his sentence in a facility that shall be agreed upon
by appropriate Philippine and United States authorities. That subsequent
agreement was the Romulo-​Kenney Agreement, signed, respectively, by the
Philippine Secretary of Foreign Affairs and the American Ambassador to the
Philippines, which stated:]

The Government of the Republic of the Philippines and the Government

of the United States of America agree that, in accordance with the
Visiting Forces Agreement signed between our two nations, Lance
Corporal Daniel J. Smith, United States Marine Corps, [shall] be returned
to U.S. military custody at the U.S. Embassy in Manila.

[A further agreement was signed a few days later to designate the actual facility
where the sentence will be served]:

The Department of Foreign Affairs of the Republic of the Philippines

and the Embassy of the United States of America agree that, in accor-
dance with the Visiting Forces Agreement signed between the two
nations, upon transfer of Lance Corporal Daniel J. Smith, United States
Marine Corps, from the Makati City Jail, he will be detained at the … U.S.
Embassy Compound in a room of approximately 10 x 12 square feet. 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

9 g.r. No. 175888, 11 February 2009.

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U.S. Military Bases 253

the place of detention to ensure the United States is in compliance with

the terms of the vfa.

[T]‌he question is 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 … and recognized as a treaty by the other contracting State”.
This Court finds that it is, for two reasons.
[First, t]he 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. Notice can be taken of the internationally known practice
by the United States of submitting to its Senate for advice and consent agree-
ments that are policymaking in nature, whereas those that carry out or further
implement these policymaking agreements are merely submitted to Congress,
under the provisions of the so-​called Case-​Zablocki Act, within sixty days from
ratification.
The second reason has to do with the relation between the vfa and the rp-​
us Mutual Defense Treaty of August 30, 1951. … The vfa, which is the instru-
ment agreed upon to provide for the joint rp-​u s military exercises, is simply an
implementing agreement to the main rp-​u s Military Defense Treaty.
Accordingly, as an implementing agreement of the rp-​u s 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-​u s Mutual Defense Treaty. Since the rp-​u s
Mutual Defense Treaty itself has been ratified and concurred in by both the
Philippine Senate and the US Senate, there is no violation of the Constitutional
provision resulting from such presence.
….
Next, the Court addresses the recent decision of the United States Supreme
Court in Medellin v. Texas [citation omitted], 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.
….

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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, pre-
cisely because the Agreement is intended to carry out obligations and under-
takings under the rp-​u s Mutual Defense Treaty. As a matter of fact, the vfa
has been implemented and executed, with the US faithfully complying with its
obligation to produce L/​c pl Smith before the court during the trial.
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. The parties to
these present cases do not question the fact that the vfa has been registered
under the Case-​Zablocki Act.
In sum, therefore, the 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.
….
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. With that, it
becomes for both parties a binding international obligation and the enforce-
ment of that obligation is left to the normal recourse and processes under
international law.
[The Court, however, struck down the Romulo-​Kenney Agreements because
the vfa required that detention is “by Philippine authorities”, and required the
parties to renegotiate the Agreement to conform with the vfa.]

vii Saguisag v. Ochoa, Jr. (2016)10

The petitions before this Court question the constitutionality of the Enhanced
Defense Cooperation Agreement (edca) between the Republic of the
Philippines and the United States of America.
….

10 g.r. Nos. 212426 & 212444, 12 January 2016.

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edca authorizes the U.S. military forces to have access to and conduct activ-
ities within certain “Agreed Locations” in the country. It was not transmitted
to the Senate on the executive’s understanding that to do so was no longer
necessary. Accordingly, in June 2014, the Department of Foreign Affairs (dfa)
and the U.S. Embassy exchanged diplomatic notes confirming the completion
of all necessary internal requirements for the agreement to enter into force in
the two countries.
….
3. The President, however, may enter into an executive agreement on foreign
military bases, troops, or facilities, if (a) it is not the instrument that allows the
presence of foreign military bases, troops, or facilities; or (b) it merely aims to
implement an existing law or treaty.
In view of [Military Bases Clause of the Constitution], petitioners argue that
edca must be in the form of a “treaty” duly concurred in by the Senate. They
stress that the Constitution is unambiguous in mandating the transmission to
the Senate of all international agreements concluded after the expiration of
the mba in 1991—​agreements that concern the presence of foreign military
bases, troops, or facilities in the country. Accordingly, petitioners maintain
that the Executive Department is not given the choice to conclude agreements
like edca in the form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of
its members—​with 1 against and 2 abstaining—​says in sr [Senate Resolution]
105 that edca must be submitted to the Senate in the form of a treaty for con-
currence by at least two-​thirds of all its members.
….
There are two insurmountable obstacles to this Court’s agreement with
sr 105. …
First, the concept of “executive agreement” is so well-​entrenched in this
Court’s pronouncements on the powers of the President. When the Court val-
idated the concept of “executive agreement,” it did so with full knowledge of
the Senate’s role in concurring in treaties. It was aware of the problematique of
distinguishing when an international agreement needed Senate concurrence
for validity, and when it did not; and the Court continued to validate the exis-
tence of “executive agreements” even after the 1987 Constitution. This follows
a long line of similar decisions upholding the power of the President to enter
into an executive agreement.
….
Third, to this Court, a plain textual reading of Article xiii, Section 25, inev-
itably leads to the conclusion that it applies only to a proposed agreement
between our government and a foreign government, whereby military bases,

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troops, or facilities of such foreign government would be “allowed” or would

“gain entry” Philippine territory. …
….
It is evident that the constitutional restriction refers solely to the initial
entry of the foreign military bases, troops, or facilities. Once entry is autho-
rized, the subsequent acts are thereafter subject only to the limitations pro-
vided by the rest of the Constitution and Philippine law, and not to the Section
25 requirement of validity through a treaty.
The vfa has already allowed the entry of troops in the Philippines.

viii Opinions of the Secretary of Justice: Other Military Agreements

Treated as Mere Executive Agreements

A On the Status of Personnel of Participating Nations in the seatco

Civic Action Exercise (1975)11
This is with reference to your request for opinion and advice “concerning the
status of personnel of participating nations [in the forthcoming Southeast
Asian Treaty Organization Civic Action Exercise], especially when they com-
mit crimes while in the performance of their official duties and if they commit
an offense while not on official duty.” …
It is a universally accepted principle that all persons and things within the
territory of a State fall under the State’s territorial supremacy and jurisdiction.
As stated by Chief Justice Marshall in the celebrated case of Schooner Exchange
v. McFaddon [citation omitted]:

The jurisdiction of the nation within its own territory is necessarily exclu-
sive and absolute. It is susceptible of no limitation not imposed by itself.
Any restriction upon it, deriving validity from an external source, would
imply a diminution of its sovereignty to the extent of the restriction, and
an investment of that sovereignty to the same extent in that power which
could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation
within its own territories must be traced up to the consent of the nation
itself. They can flow from no other legitimate source.” [Emphasis in the
original]

11 doj Opinion No. 158, 15 September 1975.

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As to the existence of any treaty, exchange of notes, or other agreement by

which the Philippines has given its consent to any of the seato participat-
ing nations to enjoy exemption from the full and complete jurisdiction of the
Philippines within its territory, similar, for instance, to the nato Status of Forces
Agreement, I am not aware of any and the Department of Foreign Affairs bears
this out. The Southeast Asia Collective Defense Treaty itself, signed at Manila
on September 8, 1954, is silent on this score, signatories thereto merely affirm-
ing and upholding “the sovereign equality of all the Parties” and “the principle
of equal rights and self-​determination of peoples.”
In the absence of such an agreement among the seato participants, the
general principles of international law will have to be applied, inasmuch as the
Philippines “adopts the generally accepted principles of international law as
part of the law of the land.” (Art. ii, Sec. 3, New Constitution)
For present purposes, it is advisable to classify the offenses according to the
settled principle applicable to each group:
….

3. Offenses which may be committed by members of the armed forces of any

of the seato participating nations on land within the territorial jurisdic-
tion of the Philippines.

In Schooner Exchange v. McFaddon, supra, the court iterated the then prevail-
ing rule that visiting forces enjoyed personal immunity from local jurisdiction.
However, this rule has been subject to erosion since the last two wars, there
having been a trend of judicial decisions against such theory, and international
agreements in essence recognizing in such cases only qualified immunity or
immunity under certain circumstances having been concluded during the
same period. … [citations omitted].
Similarly, the Philippines in 1947 had entered into such an arrangement
with the United States (the Military Bases Agreement) by virtue of which
she agreed to grant qualified jurisdictional immunity to members of the
U.S. armed forces—​indicative of her firm stand against absolute immunity
for visiting friendly armed forces. And as a matter of fact, the President has
recently declared the Government’s intention to insist on complete and abso-
lute jurisdiction of the Philippines over U.S. military bases in the country.
….
Accordingly, as a rule, offenses which might be committed on Philippine
territory by members of the armed forces of the seato participating nations
shall be subject to Philippine jurisdiction. However, as a matter of international

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courtesy and as a friendly gesture to the seato participating states, the

Philippine Government may expressly waive criminal jurisdiction [in certain
cases].

B Whether a Proposed Agreement on Defense Cooperation between

the Minister of Defense of the French Republic and the Secretary
of National Defense of the Republic of the Philippines Is in the
Nature of an Executive Agreement Which Will Not Require Senate
Concurrence/​Ratification (1994)12
This refers to your request for a ruling on whether a proposed agreement on
defense cooperation between the Minister of Defense of the French Republic
and Secretary of National Defense of the Republic of the Philippines is in the
nature of an executive agreement which [does] not require Senate concur-
rence/​ratification.
It appears that the draft agreement … has a two-​fold objective: to promote
bilateral relations between the defense agencies and armed forces of France
and the Philippines and to promote bilateral cooperation between them in the
field of defense equipment. Particularly, the defense cooperation covers joint
training and/​or military exercises, visits of defense and armed forces authori-
ties, [etc.]
….
We had, in the recent past, passed upon similar defense cooperation agree-
ments with quite similar commitments and undertaking concluded between
our government and foreign government, and resolved a similar issue pertain-
ing to the nature of such agreements in the light of the Constitutional provi-
sion which requires Senate concurrence to treaties and international agree-
ments (see Art. vi, Sec. 21, 1987 Constitution).
In Opinion No. 49, current series, this Department ruled that the pro-
posed Memorandum of Understanding on Logistics and Defense Industry
Cooperation between the Government of the Republic of Korea and the
Government of the Republic of the Philippines constitutes an executive
agreement which will [not] require Senate concurrence. Similarly, in Opinion
No. 105, current series, we opined that the proposed Memorandum of
Understanding on Defense Cooperation between the Philippine Government
and the Malaysian Government is in the nature of an exclusive [sic] agreement
which does not require Senate ratification.

12 doj Opinion No. 124, 01 September 1994 [emphasis added].

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Our aforementioned rulings were premised essentially on the findings that

the agreements in the question were limited duration and dealt with limited
matters. …
Noting, as mentioned earlier, similarities in the provisions of the present
draft agreement and those of the agreements involved in the aforesaid opin-
ions, we do not hesitate to state that the draft agreement under consideration
is in the nature of an executive agreement which does not require the concur-
rence or ratification of the Senate.

C Whether the Proposed Memorandum of Understanding on Defense

Cooperation between the Government of the Republic of the
Philippines and Government of the United Kingdom of Great Britain
and Northern Ireland. Is in the Nature of an Executive Agreement
Which Will Not Require Senate Concurrence/​Ratification (1995)13
This refers to your request for a ruling on whether the proposed Memorandum
of Understanding (mou) on Defense Cooperation between the Government of
the Republic of the Philippines and the Government of the United Kingdom of
Great Britain and Northern Ireland is in the nature of an executive agreement
which will not require Senate concurrence ratification.
[T]‌he mou provides a framework for developing the bilateral relationship
between the two countries’ defense departments and armed forces in the fol-
lowing areas: joint training and/​or military exercises, [etc.]
….
Consistent with the aforesaid principles, this Department has had occasions
to consider defense cooperation agreements with quite similar provisions as in
the present mou, concluded between the Philippine government and foreign
governments as executive agreements.
….
The draft mou deals with defense cooperation between the Philippines
and a foreign government, which involves two constitutional powers of the
President, such as, his power as Commander-​in-​Chief of the Armed Forces of
the Philippines and his power of control over foreign relations. There is noth-
ing in the proposed mou which goes beyond the limits of these constitutional

13 doj Opinion No. 100, s. 1995, 04 October 1995. See also doj Opinion No. 105, 20 July
1994 (Whether the proposed Memorandum of Understanding of Defense Cooperation
between the Philippine And Malaysian Governments can be considered as an executive
agreement, which does not need Senate concurrence provided under Section 21, Art. vii
of the Phil, Constitution).

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powers of the President or which violates any law or any particular provision
of the Constitution.

D On the Constitutional Feasibility of Holding the Maritime Bilateral

Exercise (malphi-​l aut) 6/​2003 between the Philippine Navy (pn)
and the Royal Malaysian Navy (rmn) in Panay and Cebu on October
11–​20, 200314
This refers to your request for opinion on the constitutional feasibility of hold-
ing the (malphi-​l aut) 6/​2003 between the Philippine Navy (pn) and the
Royal Malaysian Navy (rmn) in Panay and Cebu on October 11–​20, 2003.
In support of your request, you stated the following facts:
1. The malphi-​l aut is a major bilateral exercise between the navies
of the two countries under the auspices of the Philippines-​Malaysia
Memorandum of Understanding (mou) on Defense Cooperation signed
on September 26, 1994. It is aimed in strengthening the bilateral relation-
ship as well as enhance interoperability between the two navies. It has
been successfully carried out since 1997 despite the absence of a Visiting
Forces Agreement (vfa) or a Status of Forces Agreement (sofa).
2. The activity is in the nature of a Field Training Exercise (ftx) and would
involve 400 navy personnel in two (2) ships for each side. The exercise
will categorized into two, a Harbor Phase consisting of lectures, briefings
and other shore activities and a Sea Phase involving tactics, techniques
and procedures on naval operations.
We take it that you are seeking the opinion of this Department on the follow-
ing issues:
1. Whether the malphi-​l aut may push through in the absence of a sofa
between the two countries; and
2. Whether the conduct of malphi-​l aut falls within the purview of
Section 25, Article xviii of the 1987 Constitution.
As regards the first issue, we agree with the position taken by the Department
of Foreign Affairs (dfa) that the joint military exercises must be embodied in
an instrument or agreement like the Visiting Forces Agreement between the
Philippines and the United States. With the conclusion of the vfa with the
United States and the ruling of the Supreme Court in Bayan (Bagong Alyansang
Makabayan) v. Zamora upholding its validity, there is no longer any reason
why the Department of National Defense cannot proceed with the conduct of

14 doj Opinion No. 076, 10 October 2003.

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negotiations with Malaysia with the end in view of striking an agreement to

govern the forthcoming joint military exercises.
….
[As regards the second issue, the Military Bases Clause] disallows foreign
military bases, troops, or facilities in the country, unless the following condi-
tions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must
be duly concurred in by the Senate and, when so required by Congress, ratified
by a majority of the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.

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 ­c hapter 7

Human Rights Cases from the Marcos Dictatorship

Overview

The human rights violations under the Marcos dictatorship are fully doc-
umented in judicial decisions dealing with victims’ claims for reparations.
Today, however, more than thirty years after the restoration of democracy,
there is a wave of historical revisionism, akin to the perverse persistence
of “Holocaust deniers”, that has led to Marcos’s burial in the cemetery for
national heroes. The irony is that the victims invoke key judicial decisions
rendered by foreign, not Philippine, courts, because indeed no Philippine
court has held Marcos responsible for any human rights violation, due to the
instability of the post-​Marcos era and the vulnerabilities of the Philippine
judicial system.
This judicial record is thus crucial. One, in a national milieu where truth
is elusive, these records are fact-​based and have been vetted by disinterested
courts abroad. Two, they demonstrate the overlap between two sets of cases, on
one hand, the human rights claims of the victims and, on the other, the recov-
ery of ill-​gotten wealth amassed through corrupt activities. Thus the legal intri-
cacies of victims’ claims for reparations where the Marcos assets which the vic-
tims seek to attach are actually opposed by the Philippine Government which
claims it as ill-​gotten wealth subject to forfeiture. And three, they demonstrate
the overlap between the foreign litigation in U.S. courts, the recognition and
enforcement of foreign judgments in Philippine courts, and the views of the
Committee on Human Rights under the International Covenant on Civil and
Political Rights (iccpr).
Ferdinand Marcoswas elected President in 1965 for a four-​year term, was
re-​elected for his second and constitutionally final term in 1969. His last year
in office would have been in 1973, but in 1972, he placed the entire country
under martial law, citing the communist insurgency, and assumed emergency
powers. In January 1973, he had a new Constitution approved through an irreg-
ular plebiscite where people voted viva voce, when what was required was the
casting of written, secret ballots, and which legitimized his tenure beyond the
emergency. Marcos’s one-​man rule lasted from 1972 to 1986, when he left for
exile in the United States and Corazon Aquino became President.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004469723_009

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Human Rights Cases from the Marcos Dictatorship 263

Reparations Claims in U.S. Courts under the Alien Tort Claims Act

The saga of the reparation claims by Marcos human rights victims begins
with two cases filed in United States courts under the Alien Tort Claims Act as
applied in the landmark case Filartiga v. Peña-​Irala1 that enabled U.S. federal
courts to exercise extraterritorial jurisdiction over injurious acts committed
abroad that violated rights protected by “the law of nations.”2
The earlier of the two cases is Trajano, a 1992 decision against both
Ferdinand Marcos and his daughter Imee Marcos-​Manotoc, who had founded
the Kabataang Barangay, the Marcos loyalist youth group. The victim, engi-
neering student Archimedes Trajano, attended a college forum where Imee
spoke. During the open forum, he asked a question about the propriety of Imee
sitting as the head of the Marcos youth group. He was last seen at the parking
lot of his college, and when his lifeless body was found, it was bloodied and
beaten. The Trajano family sought asylum in the United States, where they
sued Marcos upon his arrival in the United States after his downfall. The Court
rejected Imee’s defense of sovereign immunity, she claiming to have acted as a
government agent, and held her liable. (Her father died in 1989 while the case
was pending.)
The latter is a class action, In Re Estate of Marcos, in behalf of 10,059 Filipino
victims of torture, summary execution and disappearance, where the Court
identified the various forms of torture conducted by the regime and, in 1992,
awarded $1.2 billion in damages. In a parallel action, Jose Ma. Sison v. Estate
of Ferdinand E Marcos, the Court found in favor of the leader and icon of the
Philippine communist movement, Jose Ma. Sison, and held that the abuses
he suffered constituted torture which was “prohibited not only by a specific,
universal, and obligatory norm but by one that reaches the level of jus cogens.”

Procedural Impediments to Enforcement in Philippine Courts

Sadly the victims’ victory in United States courts was just the beginning of a
tortuous process of enforcement within Philippine domestic courts, hampered
by needless procedural hurdles for which the iccpr Committee on Human
Rights has called out the Philippine government.

1 Filártiga v. Peña-​Irala, 630 F.2d 876 (1980).

2 See Anne-​Marie Slaughter, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of
Honor, 83 Am. J. Int’l. L. 461 (1989).

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In Trajano, when the family filed suit in the Philippines for recognition and
enforcement of foreign judgment, it was rejected by the Supreme Court for
invalid substituted service of summons upon the caretaker of Imee’s residence.
The Court held that the Sheriff’s Return should have described in greater detail
the efforts that he took to serve the summons, despite the Court’s own admis-
sion that in earlier cases, it had validated general, less specific, explanations.
For the recognition and enforcement of the award in In re Estate of Marcos,
the main procedural hurdle was the computation of the filing fee. The human
rights claimants filed a mere $10 (applying the exchange rate applicable then)
on the theory that the subject-​matter of the case was the enforcement of a
foreign judgment and it was not for the collection of a sum of money. The trial
court disagreed, saying it was “capable of pecuniary estimation”, and computed
it as a percentage of their award. Since the award at that time stood at $2.25
billion, the court placed the filing fee at $11.8 million. In Mijares et al., some of
the victims challenged this in the Supreme Court, which held that though the
claim is indeed “capable of pecuniary estimation”, the victims’ claims can be
characterized as an “action based on judgment against an estate”, a general, tex-
tual exception under the Rules of Court, that would have reduced the filing fee.
The Court expressed “grave concern” that the “exorbitant assessment of docket
fees is alien to generally accepted practices and principles in international
law” can make foreign awards “virtually unenforceable” in the Philippines. The
Supreme Court thus reduced the $11.8 million to a mere $10.
In the meantime, some of the other Marcos human rights victims in the
class suit had filed a communication under the iccpr, citing inter alia their
“right to an effective remedy.” In Pimentel et al., the Human Rights Committee,
although it had been apprised of the supervening Mijares victory at the
Philippine Supreme Court, noted that it took eight years to resolve this sub-
sidiary issue. Accordingly, it found the Philippines at fault for the inordinate
delay in resolving the case, saying that the “right to equality before the courts …
entails a number of requirements, including the condition that the procedure
before the national tribunals must be conducted expeditiously enough so as
not to compromise the principle of fairness.”

Competing Claims over the Marcos Assets: The Government’s

Claim for Forfeiture Stolen Wealth versus the Human Rights
Victims’ Claim for Reparations

The Marcos human rights victims sought to enforce the award against the
Marcos estate in the United States. One of the claimants, Marcelino Pimentel,

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sought to attach the assets of Arelma, a corporation formed by Marcos in

Panama in 1972, the year he began his dictatorship, with assets of some $35 mil-
lion when the case was decided in 2008. Pimentel also sought to attach moneys
held in escrow by the Philippine National Bank (pnb). However, the Philippine
Government and the Presidential Commission on Good Government (or
pcgg, set up right after the fall of Marcos to recover his ill-​gotten wealth) also
claimed these same assets in behalf of the Filipino from whom they said it had
been stolen. Ownership of the assets in pnb were at that time being litigated at
the Sandiganbayan, a specialized anti-​corruption court in the Philippines that
tries offenses by public officers, where the Philippine Government sought the
forfeiture of ill-​gotten wealth in its favor.
The shares of Arelma were held by the broker Merrill Lynch, which then filed
an interpleader action against Pimentel, the Republic of the Philippines, the
pcgg, and the pnb. In Republic of the Philippines v. Pimentel, the U.S. Supreme
Court held that the Republic and the pcgg enjoyed sovereign immunity and
were necessary parties to the case, and cannot be impleaded in interpleader.
In an earlier case, in the Swiss Deposits case, the Philippine Supreme Court
dealt with some US$658 million transferred to the Philippine National Bank
(pnb) from five principal Swiss bank accounts (with layers of other accounts
involved) that had been traced to Ferdinand and Imelda Marcos. The Philippine
Supreme Court applied the Philippine law on forfeiture of ill-​gotten wealth
and declared the so-​called Swiss Deposits forfeited in favor of the Republic.
In the 2012 decision in Marcos Jr. v. Republic of the Philippines, the Philippine
Supreme Court declared “all the assets of Arelma, s.a. , an entity created by the
late Ferdinand E. Marcos, forfeited in favor of the Republic of the Philippines.”
The Court affirmed that the “totality of assets and properties acquired by the
Marcos spouses was manifestly and grossly disproportionate to their aggregate
salaries as public officials, and that petitioners were unable to overturn the
prima facie presumption of ill-​gotten wealth” under the forfeiture law. Note
the irony then that the triumph of the Philippine Government in the anti-​
corruption case against the Marcoses also meant the defeat of the human
rights victims’ claim over those assets.

Legislative Relief for the Marcos Human Rights Victims

Given the odyssey of the Marcos human rights victims, finally in 2013 or twenty-​
seven years after the fall of Marcos, the Philippine Congress passed the Human
Rights Victims Reparation and Recognition Act to compensate them. Two points
are significant, especially in light of the Marcosian revival.

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One, the definition of “human rights violations victim” is time-​bound to

abuses “committed during the period from September 21, 1972 to February 25,
1986”, namely, starting from the date when Marcos proclaimed martial law and
ending on the date when Marcos left for exile in the United States. Two, this
legislation is deliberately tied to the Honolulu class action suit. It expressly
states that the “claimants in the class suit and direct action plaintiffs in the
Human Rights Litigation Against the Estate of Ferdinand E. Marcos … in the
US Federal District Court of Honolulu, Hawaii” enjoy the “conclusive presump-
tion” that they are human rights victims under the reparations law.
These clauses constitute legislative recognition that rights abuses were com-
mitted under the Marcos regime. The irony is that, even with the overwhelm-
ing historical evidence and the consistent judicial findings, it is still important
a quarter-​century later to have this fact affirmed by a piece of legislation.

Historical Revisionism

Despite these judicial findings of human rights abuses and the documented
web of hidden wealth, there has been a recent surge of historical revisionism3
that has led to the Marcoses’ return to positions of power. Politically, the dicta-
tor’s only son, Ferdinand Jr., who tried to block the forfeiture of the Marcos shell
corporations and dummy accounts in Marcos Jr. v. Republic of the Philippines,
almost won as Vice-​President of the Republic in 2016. His sister Imee, respon-
dent in the Trajano v. Marcos torture and disappearance case, won a seat in
2019 in the nationally-​elected Senate of the Republic. Their mother Imelda
Romualdez-​Marcos won in 2019 as a Member of Congress, succeeding her son
Ferdinand Jr., representing a district in her husband’s home province and elec-
toral stronghold.
Legally, the culmination of the Marcos resurgence is the 2018 Supreme
Court decision validating Ferdinand Sr.’s burial at the state’s Libingan ng mga
Bayani (literally, Burial Ground of Heroes). The victims cited inter alia two
United Nations international instruments4 for human rights victims, which

3 Raphael Lorenzo A. Pangalangan, Gemmo B. Fernandez and Ruby Rosselle L. Tugade,

Marcosian Atrocities: Historical Revisionism and the Legal Constraints on Forgetting, 19 Asia-​
Pac. J. on Hum. Rts. & L. 140 (2018).
4 UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law: resolution /​adopted by the General Assembly, 21 March

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the Court set aside as “merely expressions of non-​binding norms, principles,

and practices that [are] recommendatory in character.”5
Compare this to the 1990 decision where the Supreme Court upheld the
government’s decision to block the return of Marcos from exile, the first
while Marcos was still alive, and on Motion for Reconsideration, after he
had died.
The Court, in its decision of 15 September 1989, made a fine distinction
between the “right to travel” under the Philippine Constitution from the “right
to leave … and to return to [one’s own] country” under the International
Covenant on Civil and Political Rights which was “a totally distinct right under
international law” and is protected only against “arbitrary deprivation.” Marcos
died less than two weeks later, on 28 September 1989, and his family returned
to the Court. On 27 October 1989, the Court sustained President Corazon
Aquino’s decision that the “remains of Ferdinand E. Marcos will not be allowed
to be brought to our country until such time as the government, be it under
this administration or the succeeding one, shall otherwise decide.”6 Aquino
lifted the ban in 1991 but Marcos’s remains were brought to Manila only in 1993,
to be interred in his home province until his burial at the national heroes cem-
etery in 2016.
As this book goes to press, the Marcos restoration has crept forward.
The lower house of Congress has approved a bill declaring September 11 as
“President Ferdinand Edralin Marcos Day”, the late dictator’s birthdate, to be
observed as a holiday in his home province.7 The sponsors of the bill said that
the law was “a salute to a brilliant man” who “laid the foundation for nation-​
building” with “extraordinary display of leadership and incomparable bril-
liance.”8 The bill has now been forwarded to the Senate for its approval,9 and
will become law once it is signed by the President.

2006, A/​r es/​60/​147; and U.N. Economic and Social Council, Updated Set of Principles for
Protection and Promotion of Human Rights through Action to Combat Impunity, 8 February
2005, e/​c n.4/​2005/​102/​Add.1.
5 Ocampo v. Enriquez, on Motion for Reconsideration, G.R. No. 225973, Resolution, 8 August
2017.
6 Marcos v. Manglapus, Resolution on Motion for Reconsideration, g.r. No. 88211, 27
October 1989.
7 H. B. No. 7137, 18th Cong. (2020).
8 Explanatory Note, H. B. No. 7137, supra note 7.
9 H. B. No. 7137, supra note 7.

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i Human Rights Victims’ Claims in U.S. Courts under the U.S. Alien
Tort Claims Act and Their Enforcement in Philippine Courts

A The Killing and Disappearance of College Student Archimedes

Trajano
1 In re Estate of Marcos (U.S. Court of Appeals, Ninth Circuit, 1992)10
1. After former Philippine President Ferdinand Marcos and his daughter,
Imee Marcos-​Manotoc, fled to Hawaii in 1986, they were sued in federal
court by Agapita Trajano, a citizen of the Philippines who then lived in
Hawaii, for the torture and wrongful death of Trajano’s son, Archimedes,
in the Philippines on August 31, 1977. Marcos-​Manotoc did not appear
and a default judgment was entered against her. On appeal, she con-
tends that the district court lacked subject-​matter jurisdiction under
the Alien Tort Statute, 28 u.s.c. §1350, and that the Foreign Sovereign
Immunities Act, 28 u.s.c. §§ 1330, 1602-​11, does not authorize a federal
court to assert jurisdiction, over actions taken by a foreign government
against its own citizens. We have jurisdiction under 28 u.s.c. § 1291, and
affirm.
2. In August of 1977, Ferdinand Marcos was President of the Philippines,
Marcos-​ Manotoc was the National Chairman of the Kabataang
Baranggay [the Marcos loyalist youth organization], and Fabian Ver
was in charge of military intelligence. Archimedes Trajano was a stu-
dent at the Mapua Institute of Technology [one of the country’s lead-
ing engineering universities]. On the 31st of August, Trajano went to an
open forum discussion at which Marcos-​Manotoc was speaking. When
Trajano asked a question about her appointment as director of an orga-
nization, he was kidnapped, interrogated, and tortured to death by mil-
itary intelligence personnel who were acting under Ver’s direction, pur-
suant to martial law declared by Marcos, and under the authority of Ver,
Marcos, and Marcos-​Manotoc. He was tortured and murdered for his
political beliefs and activities. Marcos-​Manotoc controlled the police
and military intelligence personnel who tortured and murdered Trajano,
knew they were taking him to be tortured, and caused Trajano’s death.
3. In February of 1986 [after the ouster of President] Marcos, Marcos-​
Manotoc, General Ver and others left the Philippines and arrived at
Hickam Air Force Base in Hawaii. On March 20, 1986, Agapita Trajano

10 In re Estate of Ferdinand E. Marcos Human Rights Litigation. Agapita Trajano, Archimedes

Trajano v. Ferdinand E. Marcos and Imee Marcos-​Manotoc, 978 F.2d 493 (9th Cir. 1992).

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filed her complaint in the United States District Court for the District
of Hawaii. The complaint seeks damages on behalf of the estate of
Archimedes Trajano for false imprisonment, kidnapping, wrongful
death, and a deprivation of rights, and on behalf of Trajano’s mother
for emotional distress. Default was entered against Marcos-​Manotoc
on May 29, 1986. In 1991, she moved to set aside entry of default on the
ground of insufficiency of service. The motion was denied and, after a
damages hearing, judgment was entered based on the court’s findings
that Trajano was tortured and his death was caused by Marcos-​Manotoc.
The court concluded that this violation of fundamental human rights
constitutes a tort in violation of the law of nations under u.s.c. §1350,
and awarded damages of $4.16 million and attorneys’ fees pursuant to
Philippine law.
4. We must first determine whether Marcos-​Manotoc is entitled to immu-
nity under the Foreign Sovereign Immunities Act (“fsia”). …
….
6. Marcos-​Manotoc argues that the Philippine Military Intelligence is an
“instrumentality” of a foreign state within § 1603(b) of the fsia, and
that the tortious acts were brought about by persons acting pursuant to
the authority of Marcos, Marcos-​Manotoc, and Ver such that the liability
of Marcos-​Manotoc is expressly premised on her authority as a govern-
ment agent. … Trajano, on the other hand, argues that … the fsia does
not immunize acts of individuals which are outside the scope of their
official duties, and that the acts of torture and arbitrary killing (which
the complaint avers occurred under Marcos-​Manotoc’s own authority)
cannot be “official acts” within whatever authority Marcos-​Manotoc
was given by the Republic of the Philippines.
7. In Chuidian, we held that the fsia covers a foreign official acting in an
official capacity, but that an official is not entitled to immunity for acts
which are not committed in an official capacity (such as selling personal
property), and for acts beyond the scope of her authority (for example,
doing something the sovereign has not empowered the official to do). In
McKeel, in construing § 1605(a)(5) of the fsia, which waives immunity
for damages against a foreign state for injury occurring in the United
States, we found that Congress intended the fsia to be consistent with
international law—​and that the prevailing practice in international law
is “that a state loses its sovereign immunity for tortious acts only where
they occur in the territory of the forum state.” [citations omitted]

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8. Marcos-​Manotoc’s default makes the application of both cases easy

in this case, for she has admitted acting on her own authority, not on
the authority of the Republic of the Philippines. Under these circum-
stances, her acts cannot have been taken within any official mandate
and therefore cannot have been acts of an agent or instrumentality of
a foreign state within the meaning of the fsia. On any view, fsia cov-
erage under Chuidian is not triggered, and the statutory limitation to
injury occurring in the United States recognized in McKeel is not rele-
vant. As a matter of law, therefore, the district court did not err in failing
to dismiss Marcos-​Manotoc in her individual capacity.
9. Absent jurisdiction under the Foreign Sovereign Immunities Act, there
is no dispute that the only possible jurisdictional basis for Trajano’s
action is the Alien Tort Statute, 28 u.s.c. §1350. Section 1350 provides:
10. The district courts shall have original jurisdiction of any civil action by
an alien for a tort only, committed in violation of the law of nations or a
treaty of the United States.
11. It was enacted as part of the First Judiciary Act of 1789, but has seldom
been invoked. The debates that led to the Act’s passage contain no
reference to the Alien Tort Statute, and there is no direct evidence of
what the First Congress intended it to accomplish. The statute has, how-
ever, been comprehensively analyzed by the Second Circuit in Filartiga
v. Pena-​Irala, 630 F.2d 876 (2d Cir.1980), which recognized a cause of
action and subject-​matter jurisdiction under §1350 in an action between
Paraguayan citizens for acts of torture committed in Paraguay. …
….
13. There is no doubt, as the district court found, that causing Trajano’s
death was wrongful, and is a tort. Nor, in view of Marcos-​Manotoc’s
default, is there any dispute that Trajano’s death was caused by torture.
And, as we have recently held, “it would be unthinkable to conclude
other than that acts of official torture violate customary international
law.” Siderman de Blake v. Republic of Argentina [citations omitted].
14. We believe, therefore, that Trajano’s suit as an alien for the tort of
wrongful death, committed by military intelligence officials through
torture prohibited by the law of nations, is within the jurisdictional
grant of §1350.
15. Marcos-​Manotoc argues, however, that the district court erred in assum-
ing jurisdiction of a tort committed by a foreign state’s agents against
its nationals outside of the United States, and having no nexus to this
country. If §1350 were construed to confer jurisdiction under these

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circumstances, she asserts, it would exceed the constitutional limits

on federal court jurisdiction under Article iii of the Constitution. We
disagree.
….
18. … Regardless of the extent to which other principles may appropriately
be relied upon, the prohibition against official torture “carries with it the
force of a jus cogens norm,” which “ ‘enjoy[s]‌the highest status within
international law.’ “ Siderman [citation omitted] As our survey of the
scholarly and judicial opinion in Siderman reflects, there is widespread
agreement on this; “all states believe [torture] is wrong, all that engage
in torture deny it, and no state claims a sovereign right to torture its
own citizens. Under international law, any state that engages in official
torture violates jus cogens” Siderman [citations omitted]. We therefore
conclude that the district court did not err in founding jurisdiction on a
violation of the jus cogens norm prohibiting official torture.
….
29. For these reasons we affirm the judgment in Trajano’s favor. Her suit as
an alien against Marcos-​Manotoc for having caused the wrongful death
of her son, by official torture in violation of a jus cogens norm of inter-
national law, properly invokes the subject-​matter jurisdiction of the fed-
eral courts under §1350.

2 Ma. Imelda M. Manotoc v. Court of Appeals and Agapita Trajano

on behalf of the Estate of Archimedes Trajano (Philippine Supreme
Court, 2006)11
[In 1993, the Mrs. Agapita Trajano filed suit before Philippine courts for the
recognition and enforcement of the U.S. court’s judgment] for wrongful death
of deceased Archimedes Trajano committed by military intelligence officials
of the Philippines allegedly under the command, direction, authority, supervi-
sion, tolerance, sufferance and/​or influence of defendant Manotoc, pursuant
to the provisions of Rule 39 of the then Revised Rules of Court.
[T]‌he trial court issued a Summons to [Marcos-​Manotoc at] Alexandra
Condominium [in] Pasig City.
On July 15, 1993, the Summons and a copy of the Complaint were allegedly
served upon (Mr.) Macky de la Cruz, an alleged caretaker of petitioner at
the condominium unit mentioned earlier. When petitioner failed to file her

11 g.r. No. 130974, 16 August 2006.

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Answer, the trial court declared her in default through an Order dated October
13, 1993.
On October 19, 1993, petitioner, by special appearance of counsel, filed a Motion
to Dismiss on the ground of lack of jurisdiction of the trial court over her person
due to an invalid substituted service of summons. The grounds to support the
motion were: (1) the address of defendant indicated in the Complaint (Alexandra
Homes) was not her dwelling, residence, or regular place of business as provided
in Section 8, Rule 14 of the Rules of Court; (2) the party (de la Cruz), who was
found in the unit, was neither a representative, employee, nor a resident of the
place; (3) the procedure prescribed by the Rules on personal and substituted ser-
vice of summons was ignored; (4) defendant was a resident of Singapore; and
(5) whatever judgment rendered in this case would be ineffective and futile.
….
On the other hand, Agapita Trajano, for plaintiffs’ estate, presented Robert
Swift, lead counsel for plaintiffs in the Estate of Ferdinand Marcos Human
Rights Litigation, who testified that he participated in the deposition taking
of Ferdinand R. Marcos, Jr.; and he confirmed that Mr. Marcos, Jr. testified that
petitioner’s residence was at the Alexandra Apartment, Greenhills. In addi-
tion, the entries in the logbook of Alexandra Homes from August 4, 1992 to
August 2, 1993, listing the name of petitioner Manotoc and the Sheriff’s Return,
were adduced in evidence.
On October 11, 1994, the trial court rejected Manotoc’s Motion to Dismiss on
the strength of its findings that her residence, for purposes of the Complaint,
was Alexandra Homes [in] Pasig, Metro Manila, based on the documentary
evidence of respondent Trajano. The trial court relied on the presumption that
the sheriff’s substituted service was made in the regular performance of official
duty, and such presumption stood in the absence of proof to the contrary.
….
We grant the petition.
….
invalid substituted service in the case at bar
Let us examine the full text of the Sheriff’s Return, which reads:

this is to certify that on many occasions several attempts were made to

serve the summons with complaint and annexes issued by this Honorable
Court in the above entitled case, personally upon the defendant imelda
‘imee’ marcos-​m anotoc located at Alexandra Condominium [in] Pasig,
Metro-​Manila at reasonable hours of the day but to no avail for the reason
that said defendant is usually out of her place and/​or residence or prem-
ises. That on the 15th day of July, 1993, substituted service of summons

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was resorted to in accordance with the Rules of Court in the Philippines

leaving copy of said summons with complaint and annexes thru [sic]
(Mr) Macky de la Cruz, caretaker of the said defendant, according to (Ms)
Lyn Jacinto, Receptionist and Telephone Operator of the said building,
a person of suitable age and discretion, living with the said defendant
at the given address who acknowledged the receipt thereof of said pro-
cesses but he refused to sign.

…
A meticulous scrutiny of the aforementioned Return readily reveals the
absence of material data on the serious efforts to serve the Summons on peti-
tioner Manotoc in person. There is no clear valid reason cited in the Return why
those efforts proved inadequate, to reach the conclusion that personal service
has become impossible or unattainable outside the generally couched phrases
of “on many occasions several attempts were made to serve the summons … per-
sonally,” “at reasonable hours during the day,” and “to no avail for the reason that
the said defendant is usually out of her place and/​or residence or premises.” …
….
[I]‌t may be true that the Court [has elsewhere] held that a Sheriff’s Return,
which states that “despite efforts exerted to serve said process personally upon
the defendant on several occasions the same proved futile,” conforms to the
requirements of valid substituted service. However, in view of the numerous
claims of irregularities in substituted service which have spawned the filing of
a great number of unnecessary special civil actions of certiorari and appeals
to higher courts, resulting in prolonged litigation and wasteful legal expenses,
the Court rules in the case at bar that the narration of the efforts made to find
the defendant and the fact of failure written in broad and imprecise words will
not suffice. …
Due to non-​compliance with the prerequisites for valid substituted service,
the proceedings held before the trial court perforce must be annulled.

B Class Action Suit against the Estate of Ferdinand Marcos

1 In re Estate of Marcos (U.S. District Court for the District of Hawaii,
1995)12
i Background
Victims of torture, summary execution and disappearance filed suits for
damages, in the form of a class action as well as individual direct actions,
against the Estate of the former President of the Philippines, Ferdinand

12 910 F. Supp. 1460 (D. Haw. 1995).

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E. Marcos (marcos), for human rights violations. Specifically, the viola-

tions are alleged to have occurred during the period in which marcos, as
President of the Philippines, declared martial law, from September 21, 1972
to February 25, 1986.
In 1986 marcos fled the Philippines and arrived in the State of Hawaii.
marcos was a resident of Hawaii at the time he was served with the com-
plaints that are the subject of this litigation but he died during the pen-
dency of these actions. The Estate of Ferdinand E. Marcos (the estate) has
been substituted in marcos’ place; his widow, Imelda Marcos, and his son,
Ferdinand E. Marcos, Jr., have appeared before this Court as representatives
of the estate.
The action was tried in the three phases: (1) liability, (2) exemplary dam-
ages, and (3) compensatory damages, over a nine year period from 1986 to 1995.
In the compensatory damages phase, Phase iii, this Court allowed the jury to
consider the damages to a random sample of plaintiffs as representative of the
injuries suffered by those in the three subclasses; i.e. (1) plaintiffs who were tor-
tured; (2) the families of those individuals who were the subjects of summary
execution; and (3) the families of those who disappeared as the result of the
actions of marcos. Pragmatically, the jury could not hear testimony of nearly
10,000 plaintiffs in this action within any practicable and reasonable time, to
do justice to the class members. The individual plaintiffs who opted out of the
certified class action each presented his or her individual claim for compensa-
tory damages to the jury in a separate part of the Trial.
This opinion addresses the compensatory damages phase of the trial. …

ii Marcos Regime
marcos was elected President of the Philippines in 1965 and was re-​elected
in 1969. The Philippine Constitution of 1935, still in effect in 1972, was similar
to the United States Constitution, in that it limited election of the President to
two four-​year terms. Thus, marcos would have had to leave the office of the
Presidency by the end of 1973, but he did not.
On September 21, 1972 marcos imposed martial law on all of the Philippines
through Proclamation 1081, which suspended the Constitution, in order to
keep himself in office. The stated purpose for the imposition of martial law, as
expressed in Proclamation 1081, was:

to maintain law and order throughout the Philippines, prevent or sup-

press all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction.

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At the time martial law was declared, a Constitutional Convention, elected

by the people, had been meeting and was near completion of proposed revi-
sions to the 1935 Constitution. On orders from marcos, some delegates to the
Convention were arrested and placed under detention while others went into
hiding or left the country leaving the revisions uncompleted.
Without allowing for ratification of the new Constitution by a plebiscite, on
January 17, 1973, marcos ordered ratification of a revised Constitution, tailor-​
made for his maintenance of power. With those actions marcos planted the
seeds for what grew into a virtual dictatorship in the Philippines.
The new Constitution nullified the term limits for the President and pro-
vided that marcos could function as President, using his own judgment, for as
long as necessary. Until he convened a new legislative body, marcos also had
sole authority to rule in the Philippines.
Proclamation 1081 not only declared martial law, but also set the stage for
what plaintiffs alleged, and the jury found, to be acts of torture, summary exe-
cution, disappearance, arbitrary detention, and numerous other atrocities for
which the jury found marcos personally responsible.
marcos gradually increased his own power to such an extent that there
were no limits to his orders of the human rights violations suffered by plaintiffs
in this action. marcos promulgated General Order No. 1 which stated he was
the Commander-​in-​Chief of the Armed Forces of the Philippines. The order
also stated that marcos was to govern the nation and direct the operation
of the entire Government, including all its agencies and instrumentalities. By
General Orders 2 and 2-​A, signed by marcos immediately after proclaiming
martial law, marcos authorized the arrest, by the military, of a long list of
dissidents. By General Order 3, marcos maintained, as captive, the executive
and judicial branches of all political entities in the Philippines until otherwise
ordered by himself personally.
Immediately after the declaration of martial law the issuance of General
Orders 1, 2, 2A, 3 and 3A caused arrests of persons accused of subversion,
apparently because of their real or apparent opposition to the marcos gov-
ernment. These arrests were made pursuant to orders issued by the Secretary
of Defense Juan Ponce Enrile (“enrile”), or marcos himself.
The arrest orders were means for detention of each of the representatives
of the plaintiff class as well as each of the individual plaintiffs. During those
detentions the plaintiffs experienced human rights violations including, but
not limited to the following:

1. Beatings while blindfolded by punching, kicking and hitting with the

butts of rifles;

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2. The “telephone” where a detainee’s ears were clapped simultane-

ously, producing a ringing sound in the head;
3. Insertion of bullets between the fingers of a detainee and squeezing
the hand;
4. The “wet submarine”, where a detainee’s head was submerged in a
toilet bowl full of excrement;
5. The “water cure”, where a cloth was placed over the detainee’s
mouth and nose, and water poured over it producing a drowning
sensation;
6. The “dry submarine”, where a plastic bag was placed over the detain-
ee’s head producing suffocation;
7. Use of a detainee’s hands for putting out lighted cigarettes;
8. Use of flat-​irons on the soles of a detainee’s feet;
9. Forcing a detainee while wet and naked to sit before an air condi-
tioner often while sitting on a block of ice;
10. Injection of a clear substance into the body a detainee believed to be
truth serum;
11. Stripping, sexually molesting and raping female detainees; one male
plaintiff testified he was threatened with rape;
12. Electric shock where one electrode is attached to the genitals of
males or the breast of females and another electrode to some other
part of the body, usually a finger, and electrical energy produced
from a military field telephone is sent through the body;
13. Russian roulette; and
14. Solitary confinement while handcuffed or tied to a bed.

All of these forms of torture were used during “tactical interrogation”, attempt-
ing to elicit information from detainees concerning opposition to the marcos
government. The more the detainees resisted, whether purposefully or out of
lack of knowledge, the more serious the torture used.
Eventually, marcos, his family and others loyal to him fled to Hawaii in
February of 1986. One month later, a number of lawsuits were filed, including
those that are the subject of this case.

iii Class Action

On September 22, 1992, in the liability phase of the trial, the jury found defen-
dants liable to 10,059 plaintiffs, for the acts of torture, summary execution and
disappearance. On February 23, 1994 the jury awarded plaintiffs $1.2 billion in
exemplary damages.

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In the compensatory damages phase, … the jury reconvened … found the

defendant liable to the class for over $766 million in compensatory damages,
with individual plaintiff’s awards ranging from $150,000 to $700,000.

2 Hilao v. Estate of Marcos (U.S. Court of Appeals, Ninth Circuit)

(1996)13
The Estate of Ferdinand E. Marcos appeals from a final judgment entered
against it in a class-​action suit after a trifurcated jury trial on the damage claims
brought by a class of Philippine nationals (hereinafter collectively referred to
as “Hilao”) who were victims of torture, “disappearance”, or summary execu-
tion under the regime of Ferdinand E. Marcos. We have jurisdiction over the
appeal pursuant to 28 u.s.c. § 1291 and we affirm.
factual background
This case arises from human-​rights abuses—​specifically, torture, sum-
mary execution, and “disappearance”—​committed by the Philippine military
and paramilitary forces under the command of Ferdinand E. Marcos during
his nearly 14-​year rule of the Philippines. The details of Marcos’ regime and
the human-​rights abuses have been set forth by the district court at 910
F. Supp. 1460, 1462–​63 (D. Haw. 1995).
procedural history
Shortly after Marcos arrived in the United States in 1986 after fleeing the
Philippines, he was served with complaints by a number of parties seeking
damages for human-​rights abuses committed against them or their dece-
dents. District courts in Hawaii and California dismissed the complaints on
the grounds that the “act of state” doctrine rendered the cases nonjusticiable.
This court reversed in consolidated appeals. Trajano v. Marcos, 878 F.2d 1439
(9th Cir. 1989). The Judicial Panel on Multidistrict Litigation consolidated the
various actions in the District of Hawaii.
In 1991, the district court certified the Hilao case as a class action, defining
the class as all civilian citizens of the Philippines who, between 1972 and 1986,
were tortured, summarily executed, or “disappeared” by Philippine military
or paramilitary groups; the class also included the survivors of deceased class
members. Certain plaintiffs opted out of the class and continued, alongside
the class action, to pursue their cases directly.
A default judgment was entered in 1991 against Marcos’ daughter, Imee
Marcos-​Manotoc, upon one of the direct plaintiffs’ complaints. That judgment
was appealed to this court, which affirmed the district court in 1992, rejecting

13 103 F.3d 767 (9th Cir. 1996).

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arguments that Marcos-​Manotoc was entitled to foreign sovereign immunity

and that the district court lacked jurisdiction under the Alien Tort Claims
Act, 28 u.s.c. § 1350, and under Article iii of the U.S. Constitution. Trajano
v. Marcos (In re Estate of Ferdinand E. Marcos Human Rights Litigation), 978
F.2d 493 (9th Cir. 1992) (“Estate i”), cert. denied, 508 U.S. 972 (1993).
Marcos died during the pendency of the actions, and his wife Imelda Marcos
and son Ferdinand R. Marcos, as his legal representatives, were substituted as
defendants.
….
The district court ordered issues of liability and damages tried separately.
In September 1992, a jury trial was held on liability; after three days of delib-
eration, the jury reached verdicts against the Estate and for the class and for
22 direct plaintiffs and a verdict for the Estate and against one direct plain-
tiff. Judgment was entered and the preliminary injunction modified to take
account of the verdict.
The district court then ordered the damage trial bifurcated into one trial
on exemplary damages and one on compensatory damages. The court ordered
that notice be given to the class members that they must file a proof-​of-​claim
form in order to opt into the class. Notice was provided by mail to known
claimants and by publication in the Philippines and the U.S.; over 10,000 forms
were filed.
In February 1994, the same jury that had heard the liability phase of the trial
considered whether to award exemplary damages. After two days of evidence
and deliberations, the jury returned a verdict against the Estate in the amount
of $1.2 billion.
The court appointed a special master to supervise proceedings related to
the compensatory-​damage phase of the trial in connection with the class.
In January 1995, the jury reconvened a third time to consider compensatory
damages. The compensatory-​damage phase of the trial is explained in greater
detail below. After seven days of trial and deliberation, the jury returned a
compensatory-​damage award for the class of over $766 million; after two fur-
ther days of trial and deliberation, the jury returned compensatory-​damage
awards in favor of the direct plaintiffs.
On February 3, 1995, the district court entered final judgment in the class
action suit. The Estate appeals from this judgment.
jurisdiction
The district court exercised jurisdiction under the Alien Tort Claims Act, 28
u.s.c. § 1350. …
The Estate also argues that the Alien Tort Claims Act does not apply to con-
duct that occurs abroad and that all of the acts on which Hilao’s judgment

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is based occurred within the Philippines. Again, however, this court rejected
the argument when the Estate made it in a prior appeal. See Estate i, 978 F.2d
at 499–​501 (“[S]‌ubject-​matter jurisdiction was not inappropriately exercised
under § 1350 even though the actions of Marcos-​Manotoc which caused a fel-
low citizen to be the victim of official torture and murder occurred outside of
the United States.”). The Estate has offered no arguments for why we should
not follow that decision as the law of the circuit and of the case, and we there-
fore decline to reconsider that decision.
Discussion
i. statute of limitations
The Estate argues that the district court erred in not subjecting Hilao’s claims
to a two-​year statute of limitations. …
[1]‌The Alien Tort Claims Act does not contain a statute of limitations. The
Estate argues, therefore, that the courts should follow the general practice
of adopting an analogous state statute of limitations if such adoption would
not be inconsistent with federal law or policy. Because the Alien Tort Claims
Act involves, as its title suggests, torts, and because the case was heard in the
District of Hawaii, the Estate argues that Hawaii’s two-​year statute of lim-
itations for tort claims should apply. The Estate argues alternatively that the
appropriate statute of limitations might be that imposed by Philippine law,
which appears to require that claims for personal injury arising out the exer-
cise by a public officer of authority arising from martial law be brought within
one year. Philippine Civil Code, Art. 1146. Hilao argues that the ten-​year statute
of limitations in the Torture Victim Protection Act, 28 u.s.c. § 1350 (note, §
2(c)) (the tvpa), is the most closely analogous federal statute of limitations,
and cites to a recent district court case applying that limit to claims under both
the Alien Tort Claims Act and the tvpa. [citations omitted] …
[2]‌We need not decide which statute of limitations applies because Hilao’s
suit was timely under any of the proposed statutes when equitable tolling prin-
ciples are applied. …
[3]‌Any action against Marcos for torture, “disappearance”, or summary exe-
cution was tolled during the time Marcos was president. A Philippine attor-
ney who testified as an expert witness at trial stated that in 1981 Marcos engi-
neered the passage of a constitutional amendment granting him, and others
acting at his direction, immunity from suit during his tenure in office. Another
expert witness testified that many victims of torture in the Philippines did not
report the human-​rights abuses they suffered out of intimidation and fear of
reprisals; this fear seems particularly understandable in light of testimony on
the suspension of habeas corpus between 1972 and 1981, and on the effective
dependence of the judiciary on Marcos. Given these extraordinary conditions,

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any claims against Marcos for injury from torture, “disappearance”, or summary
execution were tolled until he left office in February 1986. The Estate appears
to concede that the claims in this suit were asserted in March 1986. Thus, the
filing of this action was timely under any of the asserted statutes of limitations.
[The Marcos Estate also argued the following:

1. That the cause of action abated upon the death of Marcos “because
the federal common-​law rule is that an action for an intentional tort
abates upon the death of either party.”
The Appeals Court rejected this argument, analogizing Hilao’s cause
of action to claims for violations of the U.S. Bill of Rights proscription
against cruel and unusual punishment which does not abate upon the
death of the defendant.
2. That the classification of the class was an abuse of discretion, on the
ground that “a proposed class be made up of people to whom effec-
tive notice of the pending action can be given and who will be bound
by any judgment entered.” The class was defined as:
All current civilian citizens of the Republic of the Philippines,
their heirs and beneficiaries, who between 1972 and 1986 were
tortured, summarily executed or disappeared while in the cus-
tody of military or paramilitary groups.
The Appeals Court rejected the argument, saying that, in fact, 10,059
detailed victim claims were made and 9,539 claims were awarded
damages.]
3. That statements and admissions made by the torturers to their vic-
tims were hearsay,
The Appeals Court rejected this argument on the ground that an agency
relationship existed between Marcos and the torturers.]

v Instructions on Liability of the Estate

A claim that the trial court misstated the elements that must be proven at trial
is a question of law to be reviewed de novo. [citation omitted]
The district court instructed the jury that it could find the Estate liable if
it found either that (1) Marcos directed, ordered, conspired with, or aided
the military in torture, summary execution, and “disappearance” or (2) if
Marcos knew of such conduct by the military and failed to use his power
to prevent it. The Estate challenges the latter basis for liability, arguing
that liability is not imposed under such conditions in analogous U.S. law
claims, that “no international law decision … has ever imposed liability upon

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a foreign official” on those grounds, and that the district court essentially
made the Estate liable on a respondeat superior theory that is inapplicable
in intentional torts.
[9]‌The principle of “command responsibility” that holds a superior
responsible for the actions of subordinates appears to be well accepted in
U.S. and international law in connection with acts committed in wartime, as
the Supreme Court’s opinion in In Re Yamashita indicates:

[T]‌he gist of the charge is an unlawful breach of duty by petitioner as

an army commander to control the operations of the members of his
command by `permitting them to commit’ the extensive and widespread
atrocities specified. … [T]he law of war presupposes that its violation is to
be avoided through the control of the operations of war by commanders
who are to some extent responsible for their subordinates. … [P]rovisions
[of international law] plainly imposed on petitioner, who at the time
specified was military governor of the Philippines, as well as commander
of the Japanese forces, an affirmative duty to take such measures as were
within his power and appropriate in the circumstances to protect prison-
ers of war and the civilian population. This duty of a commanding officer
has heretofore been recognized, and its breach penalized[,] by our own
military tribunals.

In Re Yamashita, 327 U.S. 1, 14–​16 (1946). See also Art. 86(2), Protocol to the
Geneva Conventions of August 12, 1949, opened for signature December 12,
1977, reprinted in 16 i.l.m. 1391, 1429 (1977) (“The fact that a breach of the
Conventions or of this Protocol was committed by a subordinate does not
absolve his superiors from penal [or] disciplinary responsibility … if they knew,
or had information which should have enabled them to conclude in the cir-
cumstances at the time, that he was committing or was going to commit such a
breach and if they did not take all feasible measures within their power to pre-
vent or repress the breach.”); Art. 7(3), Statute of the International Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia, 32
i.l.m. 1159, 1192–​94 (1993) (“The fact that any [act of genocide, crime against
humanity, or violation of the Geneva Conventions or of the laws or customs
of war] was committed by a subordinate does not relieve his superior of crim-
inal responsibility if he knew or had reason to know that the subordinate was
about to commit such acts or had done so and the superior failed to take the
necessary and reasonable measures to prevent such acts or to punish the per-
petrators thereof.”) [citation omitted]

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[10] The United States has moved toward recognizing similar “command
responsibility” for torture that occurs in peacetime, perhaps because the goal
of international law regarding the treatment of noncombatants in wartime—​
”to protect civilian populations and prisoners … from brutality”, Yamashita, 327
U.S. at 15—​is similar to the goal of international human-​rights law. This move
is evidenced in the legislative history of the tvpa:

[A]‌higher official need not have personally performed or ordered the

abuses in order to be held liable. Under international law, responsibil-
ity for torture, summary execution, or disappearances extends beyond
the person or persons who actually committed those acts—​anyone with
higher authority who authorized, tolerated or knowingly ignored those
acts is liable for them.

S. Rep. No. 249, 102d Cong., 1st Sess. at 9 (1991) (footnote omitted) (citing Forti
and In re Yamashita). At least one district court has recognized such liability.
Xuncax [citation omitted] (“Gramajo was aware of and supported widespread
acts of brutality committed by personnel under his command resulting in thou-
sands of civilian deaths. … Gramajo refused to act to prevent such atrocities.”
“… Gramajo may be held liable for the acts of members of the military forces
under his command.”). See also Paul v. Avril [citation omitted] (“Defendant
Avril [former military ruler of Haiti] bears personal responsibility for a sys-
tematic pattern of egregious human rights abuses in Haiti during his military
rule … He also bears personal responsibility for the interrogation and torture
of each of the plaintiffs … All of the soldiers and officers in the Haitian military
responsible for the arbitrary detention and torture of plaintiffs were employ-
ees, representatives, or agents of defendant Avril, acting under his instruc-
tions, authority, and control and acting within the scope of authority granted
by him.”). The conduct at issue in this case involved violations by members of
military or paramilitary forces of a jus cogens norm of international law paral-
lel to the types of war crimes for which international law imposes command
responsibility. Siderman de Blake v. Republic of Argentina [citation omitted]
(prohibition against torture has attained status of jus cogens norm from which
no derogation is permitted). In these circumstances, the district court’s instruc-
tion on the second category of liability was proper under international law.

vi Torture Victim Protection Act (tvpa)

[11] The Estate challenges three aspects of the district court’s jury instruc-
tions on the basis of the tvpa. The tvpa creates a cause of action against

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one who commits torture or extrajudicial killing and was intended to codify
judicial decisions recognizing such a cause of action under the Alien Tort
Claims Act.
….
b. direct v. vicarious liability
The Estate next argues that the district court failed to instruct the jury that
it could only find the Estate liable for acts actually committed by Ferdinand
Marcos. It points out that the Act imposes liability on any “individual who …
subjects an individual to torture … or … subjects an individual to extrajudicial
killing”. 28 u.s.c. § 1350, note, §§ 2(a)(1), (2). Thus, the Estate concludes, the
jury should have been instructed that it could not find liability under the tvpa
for acts of torture or summary execution of which Marcos was aware and failed
to prevent.
[12] As discussed above, however, the Senate Report makes clear that in
enacting the tvpa, Congress intended to impose exactly the type of liability
that the jury instructions allowed in this case:

[A]‌higher official need not have personally performed or ordered the

abuses in order to be held liable. [R]esponsibility for torture, summary
execution, or disappearances extends beyond the person who actually
committed those acts—​anyone with higher authority who authorized,
tolerated or knowingly ignored those acts is liable for them.

…. Thus, the district court’s instructions on liability were proper under

the tvpa.
….
conclusion
The district court had jurisdiction over Hilao’s cause of action. Hilao’s claims
were neither barred by the statute of limitations nor abated by Marcos’
death. The district court did not abuse its discretion in certifying the class.
The challenged evidentiary rulings of the district court were not in error. The
district court properly held Marcos liable for human rights abuses which
occurred and which he knew about and failed to use his power to prevent.
The jury instructions on the Torture Victim Protection Act and on proxi-
mate cause were not erroneous. The award of exemplary damages against
the Estate was allowed under Philippine law and the Estate’s due-​process
rights were not violated in either the determination of those damages or
of compensatory damages. The judgment of the district court is therefore
affirmed.

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3 Hilao, Sison et al. v. Estate of Marcos (U.S. Court of Appeals, Ninth

Circuit, 1996)14
Sison, a leading opponent of the Marcos regime, was arrested in 1977 and
interrogated personally by Marcos. He was then interrogated by members of
the military, who blindfolded and severely beat him while he was handcuffed
and fettered; they also threatened him with death. When this round of inter-
rogation ended, he was denied sleep and repeatedly threatened with death.
In the next round of interrogation, all of his limbs were shackled to a cot and
a towel was placed over his nose and mouth; his interrogators then poured
water down his nostrils so that he felt as though he were drowning. This lasted
for approximately six hours, during which time the interrogators threatened
Sison with electric shock and death. At the end of this water torture, Sison was
left shackled to the cot for the following three days, during which time he was
repeatedly interrogated. He was then imprisoned for seven months in a suffo-
catingly hot and unlit cell, measuring 2.5 meters square; during this period he
was shackled to his cot, at first by all his limbs and later by one hand and one
foot, for all but the briefest periods (in which he was allowed to eat or use the
toilet). The handcuffs were often so tight that the slightest movement by Sison
made them cut into his flesh. During this period, he felt “extreme pain, almost
undescribable, the boredom” and “the feeling that tons of lead were falling on
[his] brain”. Sison was never told how long the treatment inflicted upon him
would last. After his seven months shackled to his cot, Sison spent more than
eight years in detention, approximately five of them in solitary confinement
and the rest in near-​solitary confinement.
….
Sison had testified in the liability phase of the trial as to the human-​rights
abuses inflicted on him, and the jury found Marcos liable for the torture of
Sison. The jury instructions in the liability phase had defined torture, in rele-
vant part, as “any act, directed against an individual in the offender’s custody
or physical control, by which severe pain or suffering. whether physical or
mental, is intentionally inflicted on that individual”. Thus, as a matter of law,
evidence sufficient to support the jury’s finding of the Estate’s liability for tor-
ture constitutes evidence sufficient to support an award of damages for pain
and suffering to Sison. In this case, Sison was seeking only damages for pain
and suffering, having waived any claim to special damages (such as for medical
costs, lost wages, etc.).

14 Maximo Hilao, Jose Maria Sison, et al. v. Estate of Ferdinand Marcos, No. 95-​16779, 17
December 1996.

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….
We determine the content of international law by reference “to the cus-
toms and usages of civilized nations, and, as evidence of these, to the works of
jurists and commentators”. [citation omitted] Cruel, inhuman, and degrading
treatment is prohibited by Article 5 of the Universal Declaration of Human
Rights, [citation omitted]; by Article 7 of the International Covenant on Civil
and Political Rights [citation omitted]; by Article 16 of the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[citation omitted] ; by Article 5(2) of the American Convention on Human
Rights [citation omitted]; by Article 3 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms [citation omitted];
and by Article 5 of the African Charter on Human and Peoples’ Rights [citation
omitted]. These documents consistently link such treatment to torture, which
this court has held is prohibited not only by a specific, universal, and obligatory
norm but by one that reaches the level of jus cogens. Siderman de Blake [cita-
tion omitted]. Indeed, the international conventions or declarations banning
such treatment indicate that “[t]‌orture constitutes an aggravated and deliber-
ate form of cruel inhuman or degrading treatment or punishment.”
….
In the case of Sison, it seems clear that all of the abuses to which he
testified—​including the eight years during which he was held in solitary or
near-​solitary confinement—​constituted a single course of conduct of torture.
To the extent Sison’s years in solitary confinement do not constitute torture,
they clearly meet the definition of prolonged arbitrary detention as instructed
by the district court. …
We reverse the district court’s refusal to submit Sison’s compensatory-​
damage claim to the jury and remand for further proceedings on that claim. …

4 Mijares, et al. v. Ranada (Philippine Supreme Court, 2005)15

On 20 May 1997, [the Marcos human rights victims] filed Complaint with the
Regional Trial Court, City of Makati (Makati rtc) for the enforcement of the
Final Judgment. They alleged that they are members of the plaintiff class in
whose favor the US District Court awarded damages. They argued that … the
decision of the US District Court had become final and executory, and hence
should be recognized and enforced in the Philippines, pursuant to Section 50,
Rule 39 of the Rules of Court then in force.

15 g.r. No. 139325, 12 April 2005.

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On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising,

among others, the non-​payment of the correct filing fees. It alleged that peti-
tioners had only paid Four Hundred Ten Pesos (P410.00) [or US$10] as docket
and filing fees, notwithstanding the fact that they sought to enforce a mon-
etary amount of damages in the amount of over Two and a Quarter Billion
US Dollars (US$2.25 Billion). The Marcos Estate cited Supreme Court Circular
No. 7, pertaining to the proper computation and payment of docket fees. In
response, the petitioners claimed that an action for the enforcement of a for-
eign judgment is not capable of pecuniary estimation; hence, a filing fee of
only Four Hundred Ten Pesos (P410.00) was proper, pursuant to [the Rules of
Court].
On 9 September 1998, respondent Judge Santiago Javier Ranada of the Makati
rtc issued the subject Order dismissing the complaint without prejudice [on
the ground that] the subject matter of the complaint was indeed capable of
pecuniary estimation, as it involved a judgment rendered by a foreign court
ordering the payment of definite sums of money, allowing for easy determi-
nation of the value of the foreign judgment. [The Makati rtc] estimated the
proper amount of filing fees was approximately Four Hundred Seventy Two
Million Pesos [or US$11.8 million], which obviously had not been paid.
….
Petitioners submit that their action is incapable of pecuniary estimation as
the subject matter of the suit is the enforcement of a foreign judgment, and not
an action for the collection of a sum of money or recovery of damages. They
also point out that to require the class plaintiffs to pay [US$11.8 million] in fil-
ing fees would negate and render inutile the liberal construction ordained by
the Rules of Court … particularly the inexpensive disposition of every action.
Petitioners invoke Section 11, Article iii of the Bill of Rights of the
Constitution, which provides that “Free access to the courts and quasi-​judicial
bodies and adequate legal assistance shall not be denied to any person by rea-
son of poverty,” a mandate which is essentially defeated by the required exor-
bitant filing fee. …
….
An examination of Rule 141 of the Rules of Court readily evinces that the
respondent judge ignored the clear letter of the law when he concluded that
the filing fee be computed based on the total sum claimed or the stated value
of the property in litigation.
….
To resolve this question, a proper understanding is required on the nature
and effects of a foreign judgment in this jurisdiction.

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The rules of comity, utility and convenience of nations have established

a usage among civilized states by which final judgments of foreign courts of
competent jurisdiction are reciprocally respected and rendered efficacious
under certain conditions that may vary in different countries. …
The rules are silent as to what initiatory procedure must be undertaken in
order to enforce a foreign judgment in the Philippines. But there is no ques-
tion that the filing of a civil complaint is an appropriate measure for such pur-
pose. …
There are distinctions, nuanced but discernible, between the cause of action
arising from the enforcement of a foreign judgment, and that arising from the
facts or allegations that occasioned the foreign judgment. They may pertain
to the same set of facts, but there is an essential difference in the right-​duty
correlatives that are sought to be vindicated. For example, in a complaint for
damages against a tortfeasor, the cause of action emanates from the violation
of the right of the complainant through the act or omission of the respondent.
On the other hand, in a complaint for the enforcement of a foreign judgment
awarding damages from the same tortfeasor, for the violation of the same right
through the same manner of action, the cause of action derives not from the
tortious act but from the foreign judgment itself.
….
Petitioners appreciate this distinction, and rely upon it to support the prop-
osition that the subject matter of the complaint—​the enforcement of a foreign
judgment—​is incapable of pecuniary estimation. Admittedly the proposition,
as it applies in this case, is counter-​intuitive, and thus deserves strict scrutiny.
For in all practical intents and purposes, the matter at hand is capable of pecu-
niary estimation, down to the last cent. In the assailed Order, the respondent
judge pounced upon this point without equivocation:
….The Court finds that the value of the foreign judgment can be estimated;
indeed, it can even be easily determined. The Court is not minded to distin-
guish between the enforcement of a judgment and the amount of said judg-
ment, and separate the two, for purposes of determining the correct filing fees.
Similarly, a plaintiff suing on promissory note for P1 million cannot be allowed
to pay only P400 filing fees, on the reasoning that the subject matter of his suit
is not the P1 million, but the enforcement of the promissory note, and that the
value of such “enforcement” cannot be estimated.
….
This is an intriguing argument, but ultimately it is self-​evident that while
the subject matter of the action is undoubtedly the enforcement of a foreign
judgment, the effect of a providential award would be the adjudication of a

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sum of money. Perhaps in theory, such an action is primarily for “the enforce-
ment of the foreign judgment,” but there is a certain obtuseness to that sort of
argument since there is no denying that the enforcement of the foreign judg-
ment will necessarily result in the award of a definite sum of money.
….
Thus, we are comfortable in asserting the obvious, that the complaint to
enforce the US District Court judgment is one capable of pecuniary estima-
tion. But at the same time, it is also an action based on judgment against an
estate, thus placing it beyond the ambit of Section 7(a) of Rule 141 [and accord-
ingly] we find that it is covered by Section 7(b)(3), involving as it does, “other
actions not involving property.”
… The petitioners thus paid the correct amount of filing fees, and it was a
grave abuse of discretion for respondent judge to have applied instead a clearly
inapplicable rule and dismissed the complaint.
….
The preclusion of an action for enforcement of a foreign judgment in this
country merely due to an exorbitant assessment of docket fees is alien to gen-
erally accepted practices and principles in international law. Indeed, there are
grave concerns in conditioning the amount of the filing fee on the pecuniary
award or the value of the property subject of the foreign decision. Such pecu-
niary award will almost certainly be in foreign denomination, computed in
accordance with the applicable laws and standards of the forum. The vaga-
ries of inflation, as well as the relative low-​income capacity of the Filipino,
to date may very well translate into an award virtually unenforceable in this
country, despite its integral validity, if the docket fees for the enforcement
thereof were predicated on the amount of the award sought to be enforced.
The theory adopted by respondent judge and the Marcos Estate may even lead
to absurdities, such as if applied to an award involving real property situated in
places such as the United States or Scandinavia where real property values are
inexorably high. We cannot very well require that the filing fee be computed
based on the value of the foreign property as determined by the standards of
the country where it is located.

5 Mariano Pimentel et al., Communication No. 1320/​2004 (Views of the

Human Rights Committee, 2007)16
Submitted by: Mariano Pimentel et al. (represented by counsel, Mr. Robert Swift)

16 Human Rights Committee, Views of The Human Rights Committee under Article 5,
Paragraph 4, of The Optional Protocol to the International Covenant on Civil and Political
Rights, 19 March 2007, ccpr/​C/​89/​D/​1320/​2004. [emphasis added].

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Human Rights Cases from the Marcos Dictatorship 289

1. The authors of the communication are Mariano Pimentel, Ruben Resus

and Hilda Narciso, all Philippine nationals. The first author resides in
Honolulu, Hawaii, and the others in the Philippines. They claim to be
victims of violations by the Republic of the Philippines of their rights
under article 2, paragraph 3 (a) [right to “an effective remedy”], of the
International Covenant on Civil and Political Rights. The communication
also appears to raise issues under article 14, paragraph 1, of the Covenant
[right to “be equal before the courts”]. …
factual background
2.1 The authors claim to be members of a class of 9,539 Philippine nation-
als who obtained a final judgment in the United States for compensa-
tion against the estate of the late Ferdinand E. Marcos (“the Marcos
estate”) for having been subjected to torture during the regime of
President Marcos. [citation to Hilao decision, supra, omitted] Ferdinand
E. Marcos was residing in Hawaii at the time.
2.2 In September 1972, the first author was arrested by order of President
Marcos two weeks after the declaration of martial law in the Philippines.
Over the next six years, he was detained for a total of four years in sev-
eral detention centres, without ever being charged. Upon return from
his final period in detention, he was kidnapped by soldiers, who beat
him with rifles, broke his teeth, his arm and leg, and dislocated his ribs.
He was buried up to his neck in a remote sugar cane field and aban-
doned, but was subsequently rescued.
2.3 In 1974, the second author’s son, a.s., was arrested by order of President
Marcos and taken into military custody. He was tortured during inter-
rogation and kept in detention, without ever being charged. He disap-
peared in 1977. In March 1983, the third author was also arrested by
order of President Marcos. She was tortured and gang-​raped during her
interrogation. She was never charged with nor convicted of any offence.
2.4 In April 1986, the authors, together with other class members, brought
an action against the Marcos estate. On 3 February 1995, a jury at
the United States District Court in Hawaii awarded a total of US$
1,964,005,859.90 to the 9,539 victims (or their heirs) of torture, sum-
mary execution and disappearance. The jurors found a consistent pat-
tern and practice of human rights violations in the Philippines during
the regime of President Marcos from 1972–​1986. Where individuals were
randomly selected, part of the amount of the judgement is divided per
claimant. Individuals, who were not randomly selected but are part of
the class, including the authors, will receive part of the award which
was made to three subclasses. However, the amounts were not divided

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per claimant and it is only after collection (in whole or in part) of the
judgement amount that the United States District Court of Hawaii will
allocate amounts to each claimant. On 17 December 1996, the United
States Court of Appeal for the Ninth Circuit affirmed the judgment.
2.5 On 20 May 1997, five class members, including the third author, filed
a complaint against the Marcos estate, in the Regional Trial Court of
Makati City, Philippines, with a view to obtaining enforcement of the
United States judgment. The defendants counter filed a motion to dis-
miss, claiming that the php 400 (US$ 7.20) paid by each plaintiff was
insufficient as the filing fee. On 9 September 1998, the Regional Trial
Court dismissed the complaint, holding that the complainants had
failed to pay the filing fee of php 472 million (US$ 8.4 million), calcu-
lated on the total amount in dispute (US$ 2.2 billion). On 10 November
1998, the authors filed a motion for reconsideration before the same
Court, which was denied on 28 July 1999.
2.6. On 4 August 1999, the five class members filed a motion with the
Philippine Supreme Court, on their own behalf and on behalf of the
class, seeking a determination that the filing fee was php 400 rather
than php 472 million. By the time of submission of the communication
to the Committee (11 October 2004), the Supreme Court had not acted
on this motion, despite a motion for early resolution filed by the peti-
tioners on 8 December 2003. (see para. 4 below for an update).
2.7 According to the authors, since the five class members filed their
motion with the Philippine Supreme Court, the same Court entered
judgement for the State party against the Marcos Estate in a forfei-
ture action and directed enforcement of that judgement for over US$
650 million, even though that appeal was filed over two years after the
authors’ own petition.
the complaint
3. The authors claim that their proceedings in the Philippines on the
enforcement of the US judgement have been unreasonably prolonged
and that the exorbitant filing fee amounts to a de facto denial of their
right to an effective remedy to obtain compensation for their injuries,
under article 2 of the Covenant. They argue that they are not required
to exhaust domestic remedies, as the proceedings before the Philippine
courts have been unreasonably prolonged. The communication also
appears to raise issues under article 14, paragraph 1, of the Covenant.
the state party’s submission on admissibility and merits
4. On 12 May 2005, the State party submitted that the communication is
inadmissible for failure to exhaust domestic remedies. It submits that,

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on 14 April 2005, the Supreme Court handed down its decision in Mijares
et al. v. Hon. Ranada et al. [infra.] affirming the authors’ claim that they
should pay a filing fee of php 410 rather than php 472 million with
respect to their complaint to enforce the judgment of the United States
District Court in Hawaii. The State party denies that the authors were not
afforded an effective remedy.
the authors’ comments on the state party’s submission
5.1 On 12 January 2006, the authors submit that there has been no satis-
factory resolution of their claims. They confirm that, on 14 April 2005,
the Supreme Court decided in their favour with respect to the filing fee.
However, despite the Supreme Court’s view that there be a speedy reso-
lution to their claim by the trial court, this court has not yet decided on
the enforceability of the decision of the United States District Court of
Hawaii.
9.2 As to the length of the proceedings relating to the issue of the filing fee,
the Committee recalls that the right to equality before the courts, as
guaranteed by article 14, paragraph 1, entails a number of requirements,
including the condition that the procedure before the national tribunals
must be conducted expeditiously enough so as not to compromise the
principle of fairness. It notes that the Regional Trial Court and Supreme
Court spent eight years and three hearings considering this subsidiary
issue and that the State party has provided no reasons to explain why it
took so long to consider a matter of minor complexity. For this reason, the
Committee considers that the length of time taken to resolve this issue was
unreasonable, resulting in a violation of the authors’ rights under article
14, paragraph 1, read in conjunction with article 2, paragraph 3, of the
Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of
the Optional Protocol, is of the view that the facts before it disclose a
violation of article 14, paragraph 1, read in conjunction with article 2,
paragraph 3, as it relates to the proceedings on the amount of the fil-
ing fee.
11. The Committee is of the view that the authors are entitled, under
article 2, paragraph 3(a), of the Covenant, to an effective remedy. The
State party is under an obligation to ensure an adequate remedy to the
authors including, compensation and a prompt resolution of their case
on the enforcement of the US judgement in the State party. The State
party is under an obligation to ensure that similar violations do not
occur in the future.

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6 Republic of Philippines, et al. v. Pimentel (U.S. Supreme Court,

2008)17
This case turns on the interpretation and proper application of Rule 19 of the
Federal Rules of Civil Procedure and requires us to address the Rule’s operation
in the context of foreign sovereign immunity.
This interpleader action was commenced to determine the ownership of
property allegedly stolen by Ferdinand Marcos when he was the President of
the Republic of the Philippines. Two entities named in the suit invoked sov-
ereign immunity. They are the Republic of the Philippines and the Philippine
Presidential Commission on Good Governance, referred to in turn as the
Republic and the Commission. They were dismissed, but the interpleader
action proceeded to judgment over their objection. Together with two parties
who remained in the suit, the Republic and the Commission now insist it was
error to allow the litigation to proceed. Under Rule 19, they contend, the action
should have been dismissed once it became clear they could not be joined as
parties without their consent.
The United States Court of Appeals for the Ninth Circuit, agreeing with the
District Court, held the action could proceed without the Republic and the
Commission as parties. Among the reasons the Court of Appeals gave was that
the absent, sovereign entities would not prevail on their claims. We conclude
the Court of Appeals gave insufficient weight to the foreign sovereign status of
the Republic and the Commission, and that the court further erred in reaching
and discounting the merits of their claims.
….
In 1972, Ferdinand Marcos, then President of the Republic, incorporated
Arelma, S. A. (Arelma), under Panamanian law. Around the same time, Arelma
opened a brokerage account with Merrill Lynch, Pierce, Fenner & Smith Inc.
(Merrill Lynch) in New York, in which it deposited $2 million. As of the year
2000, the account had grown to approximately $35 million.
Alleged crimes and misfeasance by Marcos during his presidency became
the subject of worldwide attention and protest. A class action by and on behalf
of some 9,539 of his human rights victims was filed against Marcos and his
estate, among others. The class action was tried in the United States District
Court for the District of Hawaii and resulted in a nearly $2 billion judgment for
the class. See Hilao v. Estate of Marcos, 103 F. 3d 767 (CA9 1996). We refer to that
litigation as the Pimentel case and to its class members as the Pimentel class. …

17 553 U.S. 851 (2008). The excerpt is from the case syllabus prepared by the Reporter of
Decisions of the U.S. Supreme Court.

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The Pimentel class claims a right to enforce its judgment by attaching

the Arelma assets held by Merrill Lynch. The Republic and the Commission
claim a right to the assets under a 1955 Philippine law providing that prop-
erty derived from the misuse of public office is forfeited to the Republic from
the moment of misappropriation. See An Act Declaring Forfeiture in Favor of
the State Any Property Found To Have Been Unlawfully Acquired by Any Public
Officer or Employee and Providing for the Proceedings Therefor, Rep. Act No.
1379, 51:9 O. G. 4457 (June 18, 1955).
After Marcos fled the Philippines in 1986, the Commission was created to
recover any property he wrongfully took. Almost immediately the Commission
asked the Swiss Government for assistance in recovering assets—​including
shares in Arelma—​that Marcos had moved to Switzerland. In compliance the
Swiss Government froze certain assets and, in 1990, that freeze was upheld
by the Swiss Federal Supreme Court. In 1991, the Commission asked the
Sandiganbayan, a Philippine court of special jurisdiction over corruption cases,
to declare forfeited to the Republic any property Marcos had obtained through
misuse of his office. That litigation is still pending in the Sandiganbayan.
The Swiss assets were transferred to an escrow account set up by
the Commission at the Philippine National Bank (pnb), pending the
Sandiganbayan’s decision as to their rightful owner. The Republic and the
Commission requested that Merrill Lynch follow the same course and trans-
fer the Arelma assets to an escrow account at pnb. Merrill Lynch did not do
so. Facing claims from various Marcos creditors, including the Pimentel class,
Merrill Lynch instead filed an interpleader action under 28 U. S. C. §1335. The
named defendants in the interpleader action were, among others, the Republic
and the Commission, Arelma, pnb, and the Pimentel class (the respon-
dents here).
….
After being named as defendants in the interpleader action, the Republic
and the Commission asserted sovereign immunity under the Foreign Sovereign
Immunities Act of 1976 (fsia), 28 U. S. C. §1604. They moved to dismiss pur-
suant to Rule 19(b), based on the premise that the action could not proceed
without them. Arelma and pnb also moved to dismiss pursuant to Rule 19(b).
Without addressing whether they were entitled to sovereign immunity, Judge
Real initially rejected the request by the Republic and the Commission to dis-
miss the interpleader action. They appealed, and the Court of Appeals reversed.
It held the Republic and the Commission are entitled to sovereign immunity
and that under Rule 19(a) they are required parties … The Court of Appeals
entered a stay pending the outcome of the litigation in the Sandiganbayan
over the Marcos assets. …

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….
After concluding that the pending litigation in the Sandiganbayan could
not determine entitlement to the Arelma assets, Judge Real vacated the
stay, allowed the action to proceed, and awarded the assets to the Pimentel
class. A week later, in the case initiated before the Sandiganbayan in 1991, the
Republic asked that court to declare the Arelma assets forfeited, arguing the
matter was ripe for decision. The Sandiganbayan has not yet ruled.
In the interpleader case the Republic, the Commission, Arelma, and pnb
appealed the District Court’s judgment in favor of the Pimentel claimants.
This time the Court of Appeals affirmed. [citation omitted] Dismissal of the
interpleader suit, it held, was not warranted under Rule 19(b) because, though
the Republic and the Commission were required (“necessary”) parties under
Rule 19(a), their claim had so little likelihood of success on the merits that the
interpleader action could proceed without them. One of the reasons the court
gave was that any action commenced by the Republic and the Commission
to recover the assets would be barred by New York’s 6-​year statute of limita-
tions for claims involving the misappropriation of public property. … The court
also considered the failure of the Republic and the Commission to obtain a
judgment in the Sandiganbayan—​despite the Arelma share certificates having
been located and held in escrow at the pnb since 1997–​1998—​to be an equi-
table consideration counseling against dismissal of the interpleader suit. The
court further found it relevant that allowing the interpleader case to proceed
would serve the interests of the Pimentel class, which, at this point, likely has
no other available forum in which to enforce its judgment against property
belonging to Marcos.
….
The Court of Appeals erred in not giving the necessary weight to the absent
entities’ assertion of sovereign immunity. The court in effect decided the mer-
its of the Republic and the Commission’s claims to the Arelma assets. ….
….
The District Court and the Court of Appeals failed to give full effect to sover-
eign immunity when they held the action could proceed without the Republic
and the Commission. Giving full effect to sovereign immunity pro-​motes the
comity interests that have contributed to the development of the immunity
doctrine. See, e.g., id., at 486 (“[F]‌oreign sovereign immunity is a matter of
grace and comity”); National City Bank of N. Y. v. Republic of China, 348 U. S.
356, 362, and n. 7 (1955) (foreign sovereign immunity derives from “standards of
public morality, fair dealing, reciprocal self-​interest, and respect for the ‘power
and dignity’ of the foreign sovereign” (quoting Schooner Exchange, supra, at
136–​137, 143–​144)).

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Comity and dignity interests take concrete form in this case. The claims of
the Republic and the Commission arise from events of historical and politi-
cal significance for the Republic and its people. The Republic and the Com-​
mission have a unique interest in resolving the ownership of or claims to the
Arelma assets and in determining if, and how, the assets should be used to
compensate those persons who suffered grievous injury under Marcos. There
is a comity interest in allowing a foreign state to use its own courts for a dispute
if it has a right to do so. The dignity of a foreign state is not enhanced if other
nations bypass its courts without right or good cause. Then, too, there is the
more specific affront that could result to the Republic and the Commission if
property they claim is seized by the decree of a foreign court. Cf. Republic of
Mexico v. Hoffman, 324 U. S. 30, 35–​36 (1945) (pre-​f sia, common-​law doctrine
dictated that courts defer to executive determination of immunity because
“[t]‌he judicial seizure” of the property of a friendly state may be regarded as
“an affront to its dignity and may … affect our relations with it”).
….
As to existing parties, we do not discount the Pimentel class’ interest in
recovering damages it was awarded pursuant to a judgment. Furthermore,
combating public corruption is a significant international policy. The policy
is manifested in treaties providing for international cooperation in recovering
forfeited assets. See, e.g., United Nations Convention Against Corruption, G. A.
Res. 5814, chs. iv and v, U. N. Doc. A/​r es/​58/​4, pp. 22, 32 (Dec. 11, 2003) (reprinted
in 43 i. l. m. 37 (2004)); Treaty on Mutual Legal Assistance in Criminal Matters
Art. 16, Nov. 13, 1994, S. Treaty Doc. No. 104–​18 (1995). This policy does support
the interest of the Pimentel class in recovering damages awarded to it. But it
also underscores the important comity concerns implicated by the Republic
and the Commission in asserting foreign sovereign immunity. The error is not
that the District Court and the Court of Appeals gave too much weight to the
interest of the Pimentel class, but that it did not accord proper weight to the
compelling claim of sovereign immunity.

7 Republic v. Sandiganbayan and Marcos Estate (“Swiss Deposits”

Case, Philippine Supreme Court, 2003)18
[The Republic] sought the declaration of the aggregate amount of US$356 mil-
lion (now estimated to be more than US$658 million inclusive of interest)
deposited in escrow in the [Philippine National Bank] as ill-​gotten wealth. The
funds were previously held by the following five account groups, using various
foreign foundations in certain Swiss banks:

18 g.r. No. 152154, 15 July 2003, affirmed 18 November 2003.

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1. Azio-​Verso-​Vibur Foundation accounts;

2. Xandy-​Wintrop: Charis-​Scolari-​Valamo-​Spinus-​Avertina Foundation
accounts;
3. Trinidad-​Rayby-​Palmy Foundation accounts;
4. Rosalys-​Aguamina Foundation accounts; and
5. Maler Foundation accounts.

In addition, the petition sought the forfeiture of US$25 million and US$5 mil-
lion in treasury notes which exceeded the Marcos couple’s salaries, other law-
ful income as well as income from legitimately acquired property. The treasury
notes are frozen at the Central Bank of the Philippines … by virtue of the freeze
order issued by the pcgg.
….
One of the foremost concerns of the Aquino Government in February 1986
was the recovery of the unexplained or ill-​gotten wealth reputedly amassed
by former President and Mrs. Ferdinand E. Marcos, their relatives, friends
and business associates. Thus, the very first Executive Order (eo) issued
by then President Corazon Aquino upon her assumption to office after the
ouster of the Marcoses was eo No. 1, issued on February 28, 1986. It created
the Presidential Commission on Good Government (pcgg) and charged
it with the task of assisting the President in the “recovery of all ill-​gotten
wealth accumulated by former President Ferdinand E. Marcos, his immedi-
ate family, relatives, subordinates and close associates, whether located in
the Philippines or abroad, including the takeover or sequestration of all busi-
ness enterprises and entities owned or controlled by them during his admin-
istration, directly or through nominees, by taking undue advantage of their
public once and/​or using their powers, authority, influence, connections or
relationship.”
….
23. The following presentation very clearly and overwhelmingly show in
detail how both respondents clandestinely stashed away the country’s wealth
to Switzerland and hid the same under layers upon layers of foundations and
other corporate entities to prevent its detection. Through their dummies/​
nominees, fronts or agents who formed those foundations or corporate enti-
ties, they opened and maintained numerous bank accounts. But due to the
difficulty if not the impossibility of detecting and documenting all those secret
accounts as well as the enormity of the deposits therein hidden, the follow-
ing presentation is confined to five identified accounts groups, with balances
amounting to about $356-​M with a reservation for the filing of a supplemental
or separate forfeiture complaint should the need arise.

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h. the azio-​v erso-​v ibur foundation accounts

24. On June 11, 1971, Ferdinand Marcos issued a written order to Dr. Theo
Bertheau, legal counsel of Schweizeresche Kreditanstalt or ska, also known as
Swiss Credit Bank, for him to establish the azio Foundation. On the same date,
Marcos executed a power of attorney in favor of Roberto S. Benedicto empow-
ering him to transact business in behalf of the said foundation. Pursuant to the
said Marcos mandate, azio Foundation was formed on June 21, 1971 in Vaduz.
Walter Fessler and Ernst Scheller, also of ska Legal Service, and Dr. Helmuth
Merling from Schaan were designated as members of the Board of Trustees
of the said foundation. Ferdinand Marcos was named first beneficiary and
the Marcos Foundation, Inc. was second beneficiary. On November 12, 1971,
fm again issued another written order naming Austrahil pty Ltd. In Sydney,
Australia, as the foundation’s first and sole beneficiary. This was recorded on
December 14, 1971.
25. In an undated instrument, Marcos changed the first and sole beneficiary
to charis foundation. This change was recorded on December 4, 1972.
26. On August 29, 1978, the azio foundation was renamed to verso
foundation. The Board of Trustees remained the same. On March 11, 1981,
Marcos issued a written directive to liquidated verso foundation and to
transfer all its assets to account of fides trust company at Bank Hofman in
Zurich under the account “Reference oser.” The Board of Trustees decided to
dissolve the foundation on June 25, 1981.
27. In an apparent maneuver to bury further the secret deposits beneath
the thick layers of corporate entities, fm effected the establishment of vibur
foundation on May 13, 1981 in Vaduz. Atty. Ivo Beck and Limag Management,
a wholly-​owned subsidiary of Fides Trust, were designated as members of the
Board of Trustees. The account was officially opened with ska on September
10, 1981. The beneficial owner was not made known to the bank since Fides
Trust Company acted as fiduciary. However, comparison of the listing of
the securities in the safe deposit register of the verso foundation as of
February 27, 1981 with that of vibur foundation as of December 31, 1981
readily reveals that exactly the same securities were listed.
28. Under the foregoing circumstances, it is certain that the vibur foun-
dation is the beneficial successor of verso foundation.
29. On March 18, 1986, the Marcos-​designated Board of Trustees decided to
liquidate vibur foundation. A notice of such liquidation was sent to the
Office of the Public Register on March 21, 1986. However, the bank accounts
and respective balances of the said vibur foundation remained with ska.
Apparently, the liquidation was an attempt by the Marcoses to transfer the
foundation’s funds to another account or bank but this was prevented by the

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timely freeze order issued by the Swiss authorities. One of the latest docu-
ments obtained by the pcgg from the Swiss authorities is a declaration signed
by Dr. Ivo Beck (the trustee) stating that the beneficial owner of vibur foun-
dation is Ferdinand E. Marcos. Another document signed by G. Raber of ska
shows that vibur foundation is owned by the “Marcos Families.”
30. As of December 31, 1989, the balance of the bank accounts of vibur
foundation with ska, Zurich, under the General Account No. 469857 totaled
$3,597,544.00.
[The Court discussed similar patterns for the other accounts, namely,
“The pattern of: 1) creating foundations, 2) use of pseudonyms and dummies,
3) approving regulations of the Foundations for the distribution of capital and
income of the Foundations to the First and Second beneficiary (who are no
other than [Ferdinand Marcos] and his family), 4) opening of bank accounts
for the Foundations, 5) changing the names of the Foundations, 6) transferring
funds and assets of the Foundations to other Foundations or Fides Trust, 7) liq-
uidation of the Foundations. … “]
Therefore, the allegations in the petition for forfeiture on the existence of the
Swiss bank deposits in the sum of about US$356 million, not having been spe-
cifically denied by respondents in their answer, were deemed admitted by them
pursuant to Section 11, Rule 8 of the 1997 Revised Rules on Civil Procedure …
… Mrs. Marcos’ privity to the transactions was in fact evident from her sig-
natures on some of the vital documents attached to the petition for forfeiture
which Mrs. Marcos failed to specifically deny as required by the rules.
It is worthy to note that the pertinent documents attached to the petition
for forfeiture were even signed personally by respondent Mrs. Marcos and
her late husband, Ferdinand E. Marcos, indicating that said documents were
within their knowledge.
…
The law raises the prima facie presumption that a property is unlawfully
acquired, hence subject to forfeiture, if its amount or value is manifestly dis-
proportionate to the official salary and other lawful income of the public offi-
cer who owns it.
…
Considering, therefore, that the total amount of the Swiss deposits was
considerably out of proportion to the known lawful income of the Marcoses,
the presumption that said dollar deposits were unlawfully acquired was duly
established. It was sufficient for the petition for forfeiture to state the approx-
imate amount of money and property acquired by the respondents, and their
total government salaries.
…

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wherefore, the petition is hereby granted. The assailed Resolution of

the Sandiganbayan dated January 31, 2002 is set aside. The Swiss deposits
which were transferred to and are now deposited in escrow at the Philippine
National Bank in the estimated aggregate amount of US$658,175,373.60 as
of January 31, 2002, plus interest, are hereby forfeited in favor of petitioner
Republic of the Philippines.

8 Marcos Jr. v. Republic of the Philippines (Philippine Supreme Court,

2012)19
[Flowing from its Swiss Deposits decision, the Sandiganbayan] declared all
assets and properties of Arelma, s.a., an entity created by the late Ferdinand
E. Marcos, forfeited in favor of the government.
…
When the Marcos family fled Manila in 1986, they left behind several docu-
ments that revealed the existence of secret bank deposits in Switzerland and
other financial centers. These papers, referred to by respondent as Malacañang
documents, detailed how “Arelma, Inc.” was established. Attached … was the
Letter of Instruction sent to the Panamanian branch of the Sunier company
to open Arelma. The latter was to have the same set-​up as Maler, one of the
five Swiss foundations, subject of the [Swiss Deposits case]. Annexes … per-
tained to documents to be used to open an account with Merrill Lynch Asset
Management, Inc. in New York.
The Swiss Deposits Decision dealt only with the summary judgment as to the
five Swiss accounts, because the 2000 Motion for Partial Summary Judgment
dated 7 March 2000 specifically identified the Swiss accounts only. It did not
include the Arelma account. … The Court’s discussion clearly did not include
the Arelma account.
Thus, the other properties [inter alia, the Arelma assets], which were sub-
jects of the Petition for Forfeiture, but were not included in the 2000 Motion,
can still be subjects of a subsequent motion for summary judgment. To rule
otherwise would run counter to this Court’s long established policy on asset
recovery which, in turn, is anchored on considerations of national survival.
…
wherefore, the instant Petition is denied. The Decision dated 2 April
2009 of the Sandiganbayan is affirmed. All assets, properties, and funds

19 g.r. No. 189434. 25 April 2012, consolidated with Imelda Romualdez-​Marcos v. Republic
of the Philippines, g.r. No. 189505. Both decisions were affirmed on Motion for
Reconsideration on 12 March 2014.

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belonging to Arelma, s.a., with an estimated aggregate amount of usd3,369,975

as of 1983, plus all interests and all other income that accrued thereon, until
the time or specific day that all money or monies are released and/​or trans-
ferred to the possession of the Republic of the Philippines, are hereby forfeited
in favor of respondent Republic of the Philippines.

9 Human Rights Victims Reparation and Recognition Act of 201320

section 2. Declaration of Policy.—​… By virtue of Section 2 of Article ii of the
Constitution adopting generally accepted principles of international law as
part of the law of the land, the Philippines adheres to international human
rights laws and conventions, the Universal Declaration of Human Rights,
including the International Covenant on Civil and Political Rights (iccpr)
and the Convention Against Torture (cat) and Other Cruel, Inhuman or
Degrading Treatment or Punishment which imposes on each State party the
obligation to enact domestic legislation to give effect to the rights recognized
therein and to ensure that any person whose rights or freedoms have been
violated shall have an effective remedy, even if the violation is committed
by persons acting in an official capacity. In fact, the right to a remedy is itself
guaranteed under existing human rights treaties and/​or customary interna-
tional law, being peremptory in character ( jus cogens) and as such has been
recognized as non-​derogable.
Consistent with the foregoing, it is hereby declared the policy of the State
to recognize the heroism and sacrifices of all Filipinos who were victims of
summary execution, torture, enforced or involuntary disappearance and
other gross human rights violations committed during the regime of former
President Ferdinand E. Marcos covering the period from September 21, 1972 to
February 25, 1986 and restore the victims’ honor and dignity. The State hereby
acknowledges its moral and legal obligation to recognize and/​or provide rep-
aration to said victims and/​or their families for the deaths, injuries, sufferings,
deprivations and damages they suffered under the Marcos regime.
….
section 3. Definition of Terms.—​The following terms as used in this Act
shall mean:
(a) Detention refers to the act of taking a person into custody against his
will by persons acting in an official capacity and/​or agents of the State.
(b) Human rights violation refers to any act or omission committed during
the period from September 21, 1972 to February 25, 1986 by persons

20 Rep. Act No. 10368 (2013).

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acting in an official capacity and/​or agents of the State, but shall not be
limited to the following:
(1) Any search, arrest and/​or detention without a valid search war-
rant or warrant of arrest issued by a civilian court of law, includ-
ing any warrantless arrest or detention carried out pursuant to
the declaration of Martial Law by former President Ferdinand
E. Marcos …;
(2) The infliction by a person acting in an official capacity and/​or an
agent of the State of physical injury, torture, killing, or violation
of other human rights, of any person exercising civil or political
rights, including but not limited to the freedom of speech, assem-
bly or organization; and/​or the right to petition the government
for redress of grievances, even if such violation took place during
or in the course of what the authorities at the time deemed an
illegal assembly or demonstration: Provided, That torture in any
form or under any circumstance shall be considered a human
rights violation;
(3) Any enforced or involuntary disappearance caused upon a per-
son who was arrested, detained or abducted against one’s will or
otherwise deprived of one’s liberty, as defined in Republic Act
No. 10350, otherwise known as the “Anti-​Enforced or Involuntary
Disappearance Act of 2012”;
(4) Any force or intimidation causing the involuntary exile of a per-
son from the Philippines;
(5) Any act of force, intimidation or deceit causing unjust or illegal
takeover of a business, confiscation of property, detention of
owner/​s and or their families, deprivation of livelihood of a per-
son by agents of the State, including those caused by Ferdinand
E. Marcos, his spouse Imelda R. Marcos, their immediate relatives
by consanguinity or affinity, as well as those persons considered
as among their close relatives, associates, cronies and subordi-
nates under Executive Order No. 1, issued on February 28, 1986 by
then President Corazon C. Aquino in the exercise of her legisla-
tive powers under the Freedom Constitution;
(6) Any act or series of acts causing, committing and/​or conducting
the following:
i. Kidnapping or otherwise exploiting children of persons
suspected of committing acts against the Marcos regime;
ii. Committing sexual offenses against human rights victims
who are detained and/​or in the course of conducting mil-
itary and/​or police operations; and

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iii. Other violations and/​or abuses similar or analogous to the

above, including those recognized by international law.
(c) Human Rights Violations Victim (hrvv) refers to a person whose human
rights were violated by persons acting in an official capacity and/​or
agents of the State as defined herein. In order to qualify for reparation
under this Act, the human rights violation must have been committed
during the period from September 21, 1972 to February 25, 1986: Provided,
however, That victims of human rights violations that were commit-
ted one (1) month before September 21, 1972 and one (1) month after
February 25, 1986 shall be entitled to reparation under this Act if they
can establish that the violation was committed:
i. By agents of the State and/​or persons acting in an official capac-
ity as defined hereunder;
ii. For the purpose of preserving, maintaining, supporting or pro-
moting the said regime; or
iii. To conceal abuses during the Marcos regime and/​or the effects
of Martial Law.
….
section 17. Conclusive Presumption That One is an hrvv Under This Act.—​
The claimants in the class suit and direct action plaintiffs in the Human Rights
Litigation Against the Estate of Ferdinand E. Marcos (mdl No. 840, ca No. 86-​
0390) in the US Federal District Court of Honolulu, Hawaii wherein a favorable
judgment has been rendered, shall be extended the conclusive presumption
that they are hrvvs: Provided, That the hrvvs recognized by the Bantayog
ng mga Bayani Foundation shall also be accorded the same conclusive pre-
sumption: Provided, further, That nothing herein shall be construed to deprive
the Board of its original jurisdiction and its inherent power to determine the
extent of the human rights violations and the corresponding reparation and/​
or recognition that may be granted.

ii Historical Revisionism through the Courts

A Marcos v. Manglapus (1989)21

This petition for mandamus and prohibition asks the Court to order the
respondents [Secretary of Foreign Affairs, Executive Secretary, etc.] to issue
travel documents to Mr. Marcos and the immediate members of his family and

21 g.r. No. 88211, 15 September 1989.

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to enjoin the implementation of the President’s decision to bar their return to

the Philippines
The petitioners further assert that under international law, the right of Mr.
Marcos and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and resi-
dence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and
to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had
been ratified by the Philippines, provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that ter-
ritory, have the right to liberty of movement and freedom to choose
his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-​mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (order public), public health or mor-
als or the rights and freedoms of others, and are consistent with the
other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own
country.

…
It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These
are what the right to travel would normally connote. Essentially, the right
involved is the right to return to one’s country, a totally distinct right under
international law, independent from although related to the right to travel.
Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country, and the
right to enter one’s country as separate and distinct rights. The Declaration
speaks of the “right to freedom of movement and residence within the bor-
ders of each state” [Art. 13(1)] separately from the “right to leave any country,

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including his own, and to return to his country.” [Art. 13(2).] On the other hand,
the Covenant guarantees the “right to liberty of movement and freedom to
choose his residence” [Art. 12(1)] and the right to “be free to leave any country,
including his own.” [Art. 12(2)] which rights may be restricted by such laws as
“are necessary to protect national security, public order, public health or mor-
als or the separate rights and freedoms of others.” [Art. 12(3)] as distinguished
from the “right to enter his own country” of which one cannot be “arbitrarily
deprived.” [Art. 12(4).] It would therefore be inappropriate to construe the lim-
itations to the right to return to one’s country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one’s country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and
the right to travel, but it is our well-​considered view that the right to return
may be considered, as a generally accepted principle of international law and,
under our Constitution, is part of the law of the land [Art. ii, Sec. 2 of the
Constitution.] However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and
Political Rights, i.e., against being “arbitrarily deprived” thereof [Art. 12 (4).]
….
The Court cannot close its eyes to present realities and pretend that the
country is not besieged from within by a well-​organized communist insur-
gency, a separatist movement in Mindanao, rightist conspiracies to grab power,
urban terrorism, the murder with impunity of military men, police officers and
civilian officials, to mention only a few. The documented history of the efforts
of the Marcoses and their followers to destabilize the country, as earlier nar-
rated in this ponencia bolsters the conclusion that the return of the Marcoses
at this time would only exacerbate and intensify the violence directed against
the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be con-
tained. The military establishment has given assurances that it could handle
the threats posed by particular groups. But it is the catalytic effect of the return
of the Marcoses that may prove to be the proverbial final straw that would
break the camel’s back.
With these before her, the President cannot be said to have acted arbi-
trarily and capriciously and whimsically in determining that the return of the
Marcoses poses a serious threat to the national interest and welfare and in pro-
hibiting their return.
….
wherefore, and it being our well-​considered opinion that the President
did not act arbitrarily or with grave abuse of discretion in determining that

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the return of former President Marcos and his family at the present time and
under present circumstances poses a serious threat to national interest and
welfare and in prohibiting their return to the Philippines, the instant petition
is hereby dismissed.

B Ocampo v. Enriquez (2016)22

Petitioners argue that the burial of Marcos at the lnmb [Libingan ng Mga
Bayani, Cemetery for Heroes] should not be allowed because it has the effect
of not just rewriting history as to the Filipino people’s act of revolting against
an authoritarian ruler but also condoning the abuses committed during the
Martial Law, thereby violating the letter and spirit of the 1987 Constitution,
which is a “post-​dictatorship charter” and a “human rights constitution.” For
them, the ratification of the Constitution serves as a clear condemnation of
Marcos’ alleged “heroism.”
….
a. on r.a. no. 289 [national pantheon law]
For the perpetuation of their memory and for the inspiration and emulation
of this generation and of generations still unborn, r.a. No. 289 authorized the
construction of a National Pantheon as the burial place of the mortal remains
of all the Presidents of the Philippines, national heroes and patriots.23 It also
provided for the creation of a Board on National Pantheon to implement
the law.
….
[The Court finds that the r.a. No. 289’s National Pantheon, which was never
created, is distinct from the current lnmb.]
….
[But e]ven if the Court treats r.a. No. 289 as relevant to the issue, still, peti-
tioners’ allegations must fail. To apply the standard that the lnmb is reserved
only for the “decent and the brave” or “hero” would be violative of public policy
as it will put into question the validity of the burial of each and every mortal
remains resting therein, and infringe upon the principle of separation of pow-
ers since the allocation of plots at the lnmb is based on the grant of authority
to the President under existing laws and regulations. Also, the Court shares the
view of the osg that the proposed interment is not equivalent to the consecra-
tion of Marcos’ mortal remains. The act in itself does not confer upon him the

22 g.r. No. 225973, Resolution, 08 August 2017.

23 Rep. Act No. 289 (1948). An Act Providing For The Construction Of A National Pantheon
For Presidents Of The Philippines, National Heroes And Patriots Of The Country.

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status of a “hero.” Despite its name, which is actually a misnomer, the purpose
of the lnmb, both from legal and historical perspectives, has neither been to
confer to the people buried there the title of “hero” nor to require that only
those interred therein should be treated as a “hero.”
b. on r.a. no. 10368 [human rights victims reparation and recog-
nition act of 2013]
For petitioners, r.a. No. 10368 modified afp Regulations G 161-​375 by implic-
itly disqualifying Marcos’ burial at the lnmb because the legislature, which
is a co-​equal branch of the government, has statutorily declared his tyranny
as a deposed dictator and has recognized the heroism and sacrifices of the
Human Rights Violations Victims (hrvvs) under his regime. They insist that
the intended act of public respondents damages and makes mockery of the
mandatory teaching of Martial Law atrocities and of the lives and sacrifices of
its victims. …
We beg to disagree.
Certainly, r.a. No. 10368 recognizes the heroism and sacrifices of all Filipinos
who were victims of summary execution, torture, enforced or involuntary
disappearance, and other gross human rights violations committed from
September 21, 1972 to February 25, 1986. To restore their honor and dignity, the
State acknowledges its moral and legal obligation to provide reparation to said
victims and/​or their families for the deaths, injuries, sufferings, deprivations
and damages they experienced.
….
This Court cannot subscribe to petitioners’ logic that the beneficial provi-
sions of r.a. No. 10368 … includes the prohibition on Marcos’ burial at the
lnmb. It would be undue to extend the law beyond what it actually contem-
plates. With its victim-​oriented perspective, our legislators could have easily
inserted a provision specifically proscribing Marcos’ interment at the lnmb
as a “reparation” for the hrvvs, but they did not. As it is, the law is silent and
should remain to be so. This Court cannot read into the law what is simply not
there. It is irregular, if not unconstitutional, for Us to presume the legislative
will by supplying material details into the law. That would be tantamount to
judicial legislation.
….
c. on international human rights laws
Petitioners argue that the burial of Marcos at the lnmb will violate the rights
of the hrvvs [Human Rights Violations Victims] to “full” and “effective” rep-
aration, which is provided under the International Covenant on Civil and
Political Rights (iccpr), the Basic Principles and Guidelines on the Right to
a Remedy and Reparation for Victims of Gross Violations of International

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Human Rights Cases from the Marcos Dictatorship 307

Human Rights Law and Serious Violations of International Humanitarian Law

adopted by the U.N. General Assembly on December 16, 2005, and the Updated
Set of Principles for the Protection and Promotion of Human Rights Through
Action to Combat Impunity dated February 8, 2005 by the U.N. Economic and
Social Council.
We do not think so. The iccpr, as well as the U.N. principles on repara-
tion and to combat impunity, call for the enactment of legislative measures,
establishment of national programmes, and provision for administrative and
judicial recourse, in accordance with the country’s constitutional processes,
that are necessary to give effect to human rights embodied in treaties, cove-
nants and other international laws. The U.N. principles on reparation expressly
states:

Emphasizing that the Basic Principles and Guidelines contained herein

do not entail new international or domestic legal obligations but identify
mechanisms, modalities, procedures and methods for the implementa-
tion of existing legal obligations under international human rights law
and international humanitarian law which are complementary though
different as to their norms[.]‌[Emphasis added]

The Philippines is more than compliant with its international obligations.

When the Filipinos regained their democratic institutions after the success-
ful People Power Revolution that culminated on February 25, 1986, the three
branches of the government have done their fair share to respect, protect and
fulfill the country’s human rights obligations, to wit: [the Court enumerates
all the human rights-​related laws, executive orders and administrative orders].
….
Contrary to petitioners’ postulation, our nation’s history will not be instantly
revised by a single resolve of President Duterte [who ran and won as President
on a political promise that included the burial of Marcos at the lnmb] act-
ing through the public respondents, to bury Marcos at the lnmb. Whether
petitioners admit it or not, the lessons of Martial Law are already engraved,
albeit in varying degrees, in the hearts and minds of the present generation of
Filipinos. As to the unborn, it must be said that the preservation and popular-
ization of our history is not the sole responsibility of the Chief Executive; it is
a joint and collective endeavor of every freedom-​loving citizen of this country.
….
Petitioners did not dispute that Marcos was a former President and
Commander-​in-​Chief, a legislator, a Secretary of National Defense, a military
personnel, a veteran, and a Medal of Valor awardee. For his alleged human

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rights abuses and corrupt practices, we may disregard Marcos as a President

and Commander-​in-​Chief, but we cannot deny him the right to be acknowl-
edged based on the other positions he held or the awards he received. In this
sense, We agree with the proposition that Marcos should be viewed and judged
in his totality as a person. While he was not all good, he was not pure evil either.
Certainly, just a human who erred like us.
….
It is undeniable that former President Marcos was forced out of office by the
people through the so-​called edsa Revolution. Said political act of the peo-
ple should not be automatically given a particular legal meaning other than
its obvious consequence—​that of ousting him as president. To do otherwise
would lead the Court to the treacherous and perilous path of having to make
choices from multifarious inferences or theories arising from the various acts
of the people. It is not the function of the Court, for instance, to divine the
exact implications or significance of the number of votes obtained in elec-
tions, or the message from the number of participants in public assemblies.
If the Court is not to fall into the pitfalls of getting embroiled in political and
oftentimes emotional, if not acrimonious, debates, it must remain steadfast in
abiding by its recognized guiding stars—​clear constitutional and legal rules—​
not by the uncertain, ambiguous and confusing messages from the actions of
the people.

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 ­c hapter 8

Immunities

Immunity from the jurisdiction of Philippine courts is enjoyed by states, by

virtue of both treaty and customary international law, and by international
organizations, by virtue of host country agreements that are assimilated to the
status of treaties or of unilateral undertakings by the Philippine Government.
This legal structure, however, is hostage to the shifting attitudes toward the
colonial experience and the persistent tendency to see the “foreign” as an
intrusion into national sovereignty.
As regards states, it is significant that Philippine case law on sovereign
immunity primarily deals with just one foreign sovereign, the United States,
the former colonizer of the Philippines and with whom the Philippines has lin-
gering military and security arrangements. These cases have typically involve
U.S. military personnel who otherwise are territorially within the jurisdiction
of Philippine courts but for the extraterritorial reach of U.S. jurisdiction. The
Philippine Supreme Court no less has acknowledged that the “question of the
immunity of the United States from the jurisdiction of the Philippines” is an
“irritant” that “mar[s]‌the traditional friendship between the two countries.”1
Contrast that to the case involving the immunity of the Holy See, the one rel-
evant case precedent that does not involve the United States. Given the strong
presence of the Roman Catholic Church in the population (81% of the popula-
tion)2 and in its long history of over three centuries in the country,3 the Court
went out of its way to find immunity in its favor.
As regards international organizations, the cases below can be classified in
terms of the source of the international legal obligation of their immunity. On
one hand, two multilateral organizations whose principal or regional head-
quarters are in Manila derive their immunity from Headquarters Agreements
which they have signed with the Philippines as the host state. On the other,
there are other international organizations—​and significantly, it is unclear

1 U.S. v. Guinto, g.r. No. 76607, 26 February 1990.

2 Religious Demographic Profile (Philippines), Pwe Forum on Religion and Public Life (Feb. 2,
2010), available at: http://​pewforum.org/​world-​affairs/​countries/​?CountryID=163.
3 Raul C. Pangalangan, Philippine Country Report in Keeping the Faith: A Study of
Freedom of Thought, Conscience, and Religion in asean (D. Cohen and K. Tan
eds., 2015), available at: http://​hrrca.org/​wp-​content/​uploads/​2015/​11/​Book-​of-​Keeping-​the-​
Faith_​web.pdf.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004469723_010

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whether they were multilateral in character—​that enjoy immunities via a uni-

lateral grant of immunity by the Philippine state.

Immunity of States

In Raquiza v. Bradford, the Philippine Supreme Court recognized the immu-

nity of U.S. military authorities before domestic courts, citing as “well-​settled”
a principle laid down in a U.S. Supreme Court decision, namely, the immunity
of a friendly foreign army from local jurisdiction. What is most telling, how-
ever, is that the entire case, from the arrest and detention of the suspected
spies and collaborators all the way to the Supreme Court decision, transpired
while the Philippines was still a colony of the United States. Indeed the dis-
senting opinion argues that this “rule of international law” was

not applicable to the United States Army with respect to the Philippines,
for the reason that the former is not foreign to the latter. It is here not by
permission but by right of sovereignty. It has the same right to be here as
it has to be in Hawaii or California. The United States has the same obliga-
tion to defend and protect the Philippines, as it has to defend and protect
Hawaii or California, from foreign invasion.

In contrast, the subsequent cases all arose after independence in 1946. In Dizon
v. Commanding General, that same rule regarding the immunities of friendly
foreign troops was cited in various characterizations, namely, as a waiver of
domestic jurisdiction under a bilateral treaty, the Philippines-​United States
Military Bases Agreement; as customary international law transformed into
national law under the Incorporation Clause; or as customary international
law “even in the absence of an express declaration in the Constitution” regard-
ing incorporation or transformation.
In Syquia v. Lopez, the Supreme Court recognized the immunity of the
Commanding General of the U.S. Army in the Philippines who had been
sued upon a mere lease contract over apartment buildings used for billeting
U.S. officers. The Court deemed the United States government as the real party
in interest, and the Commanding General merely as the nominal party. Syquia
apparently adopted the absolute theory of immunity because the Court did
even not ask whether signing the housing contract entailed acts jure imperii or
jure gestionis, although later cases would later cite Syquia v. Lopez for the view
that such contracts were jure imperii.

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However, Syquia would slowly be diluted with the recognition of the restric-
tive theory of immunity. In Lyons v. United States, the Court, while dismissing
the case for procedural infirmities, recognized the public/​private distinction
though merely by obiter dictum in a case involving stevedoring services. In Baer
v. Tizon, the Philippine Bureau of Forestry granted a timber license to a Filipino
but the commander of the U.S. naval base in Subic Bay stopped his logging
operations within the base. A local judge issued a restraining order against
the U.S. commander. On review, the Supreme Court made fine distinctions.
It characterized the logging ban as sufficiently public because it pertained to
“the most important function of any government—​the defense of the state”,
referring to the United States government. On the other hand, the Court held
that the U.S. commander did not possess diplomatic immunity and may be
sued either in his personal capacity “or when [his] action … cannot be imputed
to the government which he represents.”
In U.S. v. Ruiz, the Philippine Supreme Court used for the first time the clas-
sic language of restrictive immunity, distinguishing between “sovereign and
governmental acts (jure imperii)” and “private, commercial and proprietary
acts (jure gestionis)”. This case involved a contract to repair wharves at the
U.S. naval base in Subic Bay, and the Court held that the wharves were “an
integral part of the naval base … devoted to the defense of both the United
States and the Philippines, indisputably a function of the government of the
highest order.”
After the fall of the Marcos dictatorship in 1986 and the adoption of a new
Constitution in 1987, the Supreme Court addressed the question of sovereign
immunity for the first time in a series of four cases consolidated in one deci-
sion, U.S. v. Guinto. Strangely enough, the Court cited, as the basis for the prin-
ciple, the constitutional clause in the article on “General Provisions” stating
as follows: “The State may not be sued without its consent.” This clause per-
tains to the Philippine State, not foreign states, as with every reference to “the
State” in that section of the Constitution, yet the errant interpretation seems
to have been accepted by the Court. U.S. v. Guinto further states that this prin-
ciple is “one of the generally accepted principles of international law that we
have adopted as part of the law of our land” under the Incorporation Clause.
Again, the principle that Court refers to is the immunity of foreign sovereigns
before domestic (e.g., Philippine) courts. U.S. v. Guinto gives guidance, how-
ever, on the application of sovereign immunity in suits filed against officials
of a foreign government acting in the discharge of their official duties, namely,
immunity is implicated when the suit would “require the state to perform an
affirmative act to satisfy” a claim.

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In Shauf v. Court of Appeals, the Court adopted, verbatim in certain sections,

the reasoning in U.S. v. Guinto. However, the Court set aside the immunity of
a U.S. civilian official at Clark Air Base who had been sued in an equal protec-
tion claim for discrimination on the basis of nationality and sex. The Court
said that the “cloak of protection afforded the officers and agents of the gov-
ernment is removed the moment they are sued in their individual capacity.”
The Court reasoned that personal liability attaches to “unauthorized acts of
government officials [because they] are not acts of the state” and a suit against
said officials is “not a suit against the State.”
The latest of the U.S. military immunity cases is Arigo v. Swift, against the com-
manding officers of a U.S. naval vessel that ran aground in a unesco-​protected
coral sanctuary. The Court applied the test first invoked in U.S. v. Guinto and
said that inasmuch as the “satisfaction of a judgment against [them] will
require remedial actions and appropriation of funds by the U.S. government,
the suit is deemed to be one against the U.S. itself [and is] barred by the prin-
ciple of sovereign immunity.”
Finally, a leading case involving a different foreign state is Holy See v. Rosario,
which recognized the immunity of the Papal Nuncio from a case involving the
sale of the same church land to two different buyers, arising from the question
of who should bear the cost of relocating the informal settlers (“squatters”)
then occupying the property. Holy See v. Rosario contains the most elaborate
discussion in Philippine law on the content and rationale of the restrictive
theory of sovereign immunity. The Court defined the test of when an act is
jure gestionis, namely, whether the foreign state performed the act “in the reg-
ular course of business”, in this case, whether church land was sold as part
of a real estate business.” The Court found that the property was acquired to
serve as the residence of the Papal Nuncio and that its acquisition and sale was
“clothed with a governmental character.” The Court found that it had not been
sold “for profit or gain” but only because informal settlers had occupied it and
rendered it unusable as such.

Immunity of International Organizations

In contrast to the immunity of states which is based largely on customary

international law, that of international organizations is based on treaty law.
Thus in these cases, the cases turn upon the application of treaty obligations
in Philippine domestic law and, in particular, within the separation of powers
under the Philippine Constitution.

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In World Health Organization v. Aquino, the immunities were set forth

in the Host Agreement signed by the organization with the Philippine
Government. This case laid down the authority for the principle, first, that
the Host Agreement is a “treaty commitment [that] has the force and effect
of law”, and second, that whether a certain matter was covered by diplomatic
immunity was a determination made by the political branches of government.
Accordingly, once a plea of immunity is accepted or endorsed by “the principal
law officer of the government”, namely in this case, the Solicitor General, that
is conclusive upon the courts.
There are two cases involving a multilateral institution, the Asian
Development Bank (adb), the regional development bank which has its head-
quarters in Manila. Local courts have interpreted the immunities under its
constitutive charter and its Host Agreement.
In Liang v. People, the Supreme Court effectively abandoned the precedent
laid down in World Health Organization v. Aquino. Since the Host Agreement
rendered immune only such “acts performed by [its staff] in their official
capacity”, the Court refused to take “blindly [and] on its face” the finding of
immunity made by the Department of Foreign Affairs and which thus had “no
binding effect” on the courts. The Court reserved for itself the power to deter-
mine whether in fact the act in question was done in the course of official duty.
Finally, the acts involved in this case, namely, allegedly defamatory imputa-
tions made against a subordinate, can give rise to criminal liability and could
not have been part of the performance of official duty. The private complainant
here cited this case in a grievance claim filed before the adb Administrative
Tribunal.4
In Salaveria and Gonzales v. Commissioner of Internal Revenue, the Court of
Appeals affirmed the immunity from taxes of the Filipino staff members of
the adb. The adb Charter held that all salaries were tax exempt “except where
a [state] member deposits with its instrument of ratification or acceptance a
declaration that such member retains for itself … the right to tax [such] sal-
aries.” The Philippines, in joining the adb, stated that it ratified the Charter
“subject to the reservation that the Philippines declares that it retains for itself.
… the right to tax salaries” paid to its nationals.
The court held that the term “reservation” meant simply that the “power
to tax the Filipino nationals may or may not be exercised in the future by the
Philippine Government through its Congress.” In the court’s chronology, when

4 Joyce Volante Cabal v. Asian Development Bank, adb Administrative Tribunal, Decision No. 22
(13 August 1996), at https://​www.adb.org/​sites/​default/​files/​microcontent/​adbt0022.pdf.

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the Philippine signed the adb Charter which provided for the immunity from
taxes, it carved out an exception from the tax code which otherwise subjected
all Filipinos to taxation. The effect of the “reservation” was merely to give the
Philippines the option to tax them in the future but, the court noted, “there
must be an operative act, apart from the reservation itself” for the Philippines
to tax its nationals new. The court held that the many subsequent tax laws,
including the regulations being challenged in this case, do not suffice to be
such “operative act” which must be a specific act to remove the tax exemp-
tion granted by the adb Charter. Note that a related case was likewise brought
before the adb Administrative Tribunal,5 which held that the principle of
“equal compensation for comparable work” required the adb to reimburse
income tax levied by reserving states on salaries of their nationals.

i States

A Raquiza v. Bradford (1945)6

[This is a habeas corpus petition by three women arrested for espionage and
collaboration with the Japanese during the liberation of Manila in World War
ii, by authority of a proclamation issued by General Douglas MacArthur.]
In the case of Coleman vs. Tennessee [citation omitted], the Supreme Court
of the United States, among other things, said:

It is well settled that a foreign army, permitted to march through a

friendly country or to be stationed in it, by permission of its government
or sovereign, is exempt from the civil and criminal jurisdiction of the place.
The sovereign is understood, said this court in the celebrated case of The
Exchange [citation omitted] to cede a portion of his territorial jurisdic-
tion when he allows the troops of a foreign prince to pass through his
dominions: … The grant of a free passage, therefore, implies a waiver of
all jurisdiction over the troops during their passage, and permits the for-
eign general to use that discipline and to inflict those punishments which
the government of his army may require.

5 Ferdinand P. Mesch and Robert Y. Siy v. Asian Development Bank, adb Administrative Tribunal,
Decision No. 2 (18 January 1994), at https://​www.adb.org/​sites/​default/​files/​microcontent/​
adbt0002.pdf.
6 g.r. No. L-​44, 13 September 1945.

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In the case of the United States Army of liberation, not only has the
Commonwealth asked, and the United States Government agreed, that it come
and be stationed in the Philippines, but it is here for the very realization of the
overruling and vehement desire and dream of the Filipino people to be freed
from the shackles of Japanese tyranny, and to see this war brought to a victori-
ous end. If a foreign army permitted to be stationed in a friendly country, “by
permission of is government or sovereign,” is exempt from the civil and crim-
inal jurisdiction of the place, with much more reason should the Army of the
United States which is not permitted by the Commonwealth Government to be
stationed here but has come to the islands and stayed in them for the express
purpose of liberating them, and further prosecuting the war to a successful
conclusion, be exempt from the civil and criminal jurisdiction of this place, at
least for the time covered by said agreement of the two Governments. …

B Dizon v. Commanding General (1948)7

On March 14, 1947, an Agreement was concluded between the Philippines and
the United States of America whereby the latter is authorized to occupy and
use certain portions of the Philippine territory as military bases and to exercise
jurisdiction over certain offenses committed within and outside said bases. For
an offense allegedly committed at the main storage area, Philrycom Engineer
Depot, United States Army …, the petitioner was prosecuted in and convicted
by a General Court Martial appointed by the Commanding General of the
Philippine-​Ryukus Command of the United States Army and accordingly sen-
tenced, on March 4, 1948, to confinement at hard labor for five years.
In his petition for habeas corpus …, the petitioner contends that the General
Court Martial had no jurisdiction over the alleged offense which was com-
mitted in a place not a base of the United States Army within the meaning
of the Agreement concerning military bases of March 14, 1947, and that even
assuming that the offense was committed in a base, said Agreement is uncon-
stitutional because it deprives the Philippine courts of the jurisdiction over all
offenses exclusively vested in them … and violates [the constitutional guaran-
tee of] due process and equal protection of the law.
….
Although already superfluous, we do not hesitate to hold that even in
the absence of an express declaration in the Constitution that the generally
accepted principles of international law are made a part of the law of the
Nation, we are bound to uphold the immunities above referred to. And this

7 g.r. No. L-​2110, 22 July 1948.

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should be true as long as the civilized world or majority of the independent

countries composing it still abide by the rules of international law, and as
long as the Philippines continues, as it must continue, to have an intercourse
with such countries. We would be the last to suppose that the framers of the
Constitution would ever intend to impugn or disregard any international
practice. “A nation would justly be considered as violating its faith, although
that faith might not be expressly plighted, which should suddenly and with-
out previous notice, exercise its territorial powers in a manner not consonant
to the usages and received obligations of the civilized world.” (The Schooner
Exchange vs. McFaddon and Others [citation omitted]).
Under the [Military Bases Treaty], the United States was given express per-
mission to establish military bases on certain portions of the Philippine terri-
tory and to exercise jurisdiction over certain offenses. The rights thus granted
are no less than those conceded by the rule of international law to “a foreign
army allowed to march through a friendly country or to be stationed in it, by
permission of its government or sovereign.” For this reason, if for no other, the
constitutional point raised by the petitioner becomes untenable. …
Thus in the more recent case of Miquiabas vs. Commanding General,
Philippine-​Ryukus Command, United States Army [citation omitted], this Court
enunciated the principle that as a rule “the Philippines, being a sovereign
nation, has jurisdiction over all offenses committed within its territory, but it
may, by treaty or by agreement, consent that the United States or any other for-
eign nation, shall exercise jurisdiction over certain offenses committed within
certain portions of said territory.”
….
But the point we want to bring out is that, if bases may be validly granted to
the United States under the Constitution, there is no plausible reason why the
lesser attribute of jurisdiction cannot be waived. From another point of view,
waiver of jurisdiction may well be considered as included within the terms
“necessary appurtenances to such bases, and the rights incident thereto.”

C Syquia v. Lopez (1949)8

[The Petitioners were the owners of apartment buildings in Manila, and the
United States leased three of these buildings.] The term or period for the three
leases was to be “for the duration of the war and six months thereafter, unless
sooner terminated by the United States of America.” The apartment buildings

8 g.r. No. L-​1648, 17 August 1949.

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were used for billeting and quartering officers of the U. S. armed forces sta-
tioned in the Manila area.|
….
Under the theory that said leases terminated six months after September 2,
1945, when Japan surrendered, plaintiffs sometime in March, 1946, approached
the predecessors in office of defendants Moore [Commanding General of the
U. S. Army, Manila] and Tillman [Real Estate Chief, U.S. Army, Manila] and
requested the return of the apartment buildings to them, but they were advised
that the U. S. Army wanted to continue occupying the premises. … Not being
in conformity with the continuance of the old leases because of the alleged
comparatively low rentals being paid thereunder, plaintiffs formally requested
Tillman to cancel said three leases and to release the apartment buildings on
June 28, 1946. [The Petitioners eventually] commenced the present action in
the Municipal Court of Manila in the form of an action for unlawful detainer
against Moore and Tillman and 64 persons occupying apartments in the three
buildings. …
….
[The Supreme Court affirmed the position of the Municipal Court that]
under the well settled rule of International Law, a foreign government like
the United States Government cannot be sued in the courts of another state
without its consent; that it was clear from the allegations of the complaint
that although the United States of America has not been named therein as
defendant, it is nevertheless the real defendant in this case, as the parties
named as defendants are officer of the United States Army and were occupy-
ing the buildings in question as such and pursuant to orders received from that
Government.

D Lyons v. United States of America (1958)9

[The plaintiff signed a contract with the United States to provide stevedoring
services at the U.S. Naval Base, Subic Bay. Plaintiff sued to collect several sums
of money.]
“It is an established principle of jurisprudence in all civilized nations, resting
on reasons of public policy, because of the inconvenience and danger which
would follow from any different rule, that the sovereign cannot be sued in its
own courts, or in any other, without its consent and permission. Accordingly,
other than those instances in which the United States has consented to be

9 g.r. No. L-​11786, 26 September 1858.

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sued, the United States is immune from suit upon claims against it or debts
due by it. …. [citation omitted]
….
It is however contended that when a sovereign state enters into a con-
tract with a private person the state can be sued upon the theory that it has
descended to the level of an individual from which it can be implied that it has
given its consent to be sued under the contract. …
….
[However, i]t appearing in the complaint that appellant has … failed to first
exhaust its administrative remedies against said Government, the lower court
acted properly in dismissing this case.

E Baer v. Tizon (1974)10

[American naval authorities stopped the logging operations of Gener, who
then sued Baer, Commander of the United States Naval Base, Subic Bay, and
secured a restraining order from the trial court. Baer argues that the suit as in
effect against the United States, which enjoys sovereign immunity]
1. The invocation of the doctrine of immunity from suit of a foreign state
without its consent is appropriate. [The Court cited inter alia the prec-
edents laid down in Raquiza v. Bradford, supra, and Syquia v. Almeda
Lopez, supra.]
….
The solidity of the stand of petitioner is therefore evident. What was
sought by private respondent and what was granted by respondent Judge
amounted to an interference with the performance of the duties of peti-
tioner in the base area in accordance with the powers possessed by him
under the Philippine-​American Military Bases Agreement. … The doc-
trine of state immunity is not limited to cases which would result in a
pecuniary charge against the sovereign or would require the doing of an
affirmative act by it. Prevention of a sovereign from doing an affirma-
tive act pertaining directly and immediately to the most important pub-
lic function of any government—​the defense of the state—​is equally as
untenable as requiring it to do an affirmative act.”
2. There should be no misinterpretation of the scope of the decision
reached by this Court. Petitioner, as the Commander of the United States
Naval Base in Olongapo, does not possess diplomatic immunity. He may
therefore be proceeded against in his personal capacity, or when the

10 g.r. No. L-​24294, 03 May 1974.

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Immunities 319

action taken by him cannot be imputed to the government which he

represents. … The insuperable obstacle to the jurisdiction of respondent
Judge [here] is that a foreign sovereign without its consent is haled into
court in connection with acts performed by it pursuant to treaty provi-
sions and thus impressed with a governmental character.

F United States of America v. Ruiz (1985)11

[An engineering company sued to compel the United States to award it the
contract to repair wharves at the U.S. Naval Base at Subic.]
The traditional rule of State immunity exempts a State from being sued in
the courts of another State without its consent or waiver. This rule is a neces-
sary consequence of the principles of independence and equality of States.
However, the rules of International Law are not petrified; they are constantly
developing and evolving. And because the activities of states have multiplied,
it has been necessary to distinguish them—​between sovereign and govern-
mental acts (jure imperii) and private, commercial and proprietary acts (jure
gestionis). The result is that State immunity now extends only to acts jure impe-
rii. The restrictive application of State immunity is now the rule in the United
States, the United Kingdom and other states in western Europe. (See Coquia
and Defensor-​Santiago, Public International Law, pp. 207–​209 [1984].)
The respondent judge recognized the restrictive doctrine of State immu-
nity when he said in his Order denying the defendants’ (now petitioners)
motion: “A distinction should be made between a strictly governmental func-
tion of the sovereign state from its private, proprietary or non-​governmental
acts.” However, the respondent judge also said: “It is the Court’s considered
opinion that entering into a contract for the repair of wharves or shoreline
is certainly not a governmental function although it may partake of a public
nature or character.
….
The reliance placed on Lyons [supra] by the respondent judge is misplaced
[because] the statement in respect of the waiver of State immunity from suit
was purely gratuitous and, therefore, obiter so that it has no value as an imper-
ative authority.
The restrictive application of State immunity is proper only when the pro-
ceedings 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

11 g.r. No. L-​35645, 22 May 1985.

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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 sov-
ereign functions. In this case the projects are an integral part of the naval base
which is devoted to the defense of both the United States and the Philippines,
indisputably a function of the government of the highest order; they are not
utilized for nor dedicated to commercial or business purposes.
That the correct test for the application of State immunity is not the conclu-
sion of a contract by a State but the legal nature of the act is shown in Syquia
[supra].
In Syquia, the United States concluded contracts with private individuals
but the contracts notwithstanding the United States was not deemed to have
given or waived its consent to be sued for the reason that the contracts were for
jure imperii and not for jure gestionis.

G United States of America v. Guinto (1990)12

[Although the applicable principles remain unchanged, this is the first case
under the 1987 Constitution to address the issue of sovereign immunity in rela-
tion to the U.S. military bases. This decision consolidates four law suits against
U.S. military officers of stationed in Clark Air Base, a U.S, military base in the
Philippines: the first, a bidding dispute over a barbershop concession; the sec-
ond, for allegedly illegal dismissal of a cook; the third, for damages suffered by
an employee who was dismissed following his arrest in a buy-​bust operation;
and the fourth, for inhuman treatment by U.S. guards who unleashed dogs to
attack suspected thieves who were supposedly resisting arrest. In all suits, the
defense was raised that these were in effect suits against the United States,
which enjoys sovereign immunity.]
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. This latter provision merely reiterates a policy
earlier embodied in the 1935 and 1973 Constitutions and also intended to man-
ifest our resolve to abide by the rules of the international community.
….
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

12 g.r. No. 76607, 26 February 1990.

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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. In such
a situation, the state may move to dismiss the complaint on the ground that it
has been filed without its consent.
….
The consent of the state to be sued may be manifested expressly or impliedly.
Express consent may be embodied in a general law or a special law. Consent is
implied when the state enters into a contract or it itself commences litigation.
The general law waiving the immunity of the state from suit is found in Act
No. 3083, under which the Philippine government “consents and submits to be
sued upon any moneyed claim involving liability arising from contract, express
or implied, which could serve as a basis of civil action between private parties.”
In Merritt v. Government of the Philippine Islands, a special law was passed to
enable a person to sue the government for an alleged tort. When the govern-
ment enters into a contract, it is deemed to have descended to the level of the
other contracting party and divested of its sovereign immunity from suit with
its implied consent. Waiver is also implied when the government files a com-
plaint, thus opening itself to a counterclaim.
The above rules are subject to qualification. Express consent is effected only
by the will of the legislature through the medium of a duly enacted statute. We
have held that not all contracts entered into by the government will operate as
a waiver of its non-​suability; distinction must be made between its sovereign
and proprietary acts. As for the filing of a complaint by the government, sua-
bility will result only where the government is claiming affirmative relief from
the defendant.
…
It bears stressing at this point that [Baer v. Tizon] confers on the United
States of America a blanket immunity for all acts done by it or its agents in the
Philippines. Neither may the other petitioners claim that they are also insu-
lated from suit in this country merely because they have acted as agents of the
United States in the discharge of their official functions.
There is no question that the United States of America, like any other state,
will be deemed to have impliedly waived its non-​suability if it has entered into
a contract in its proprietary or private capacity. It is only when the contract
involves its sovereign or governmental capacity that no such waiver may be
implied. This was our ruling in United States of America v. Ruiz [supra] where
the transaction in question dealt with the improvement of the wharves in the
naval installation at Subic Bay. As this was a clearly governmental function, we

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held that the contract did not operate to divest the United States of its sover-
eign immunity from suit. …
….
The other petitioners in the cases before us all aver they have acted in the
discharge of their official functions as officers or agents of the United States.
However, this is a matter of evidence. The charges against them may not be
summarily dismissed on their mere assertion that their acts are imputable
to the United States of America, which has not given its consent to be sued.
In fact, the defendants are sought to be held answerable for personal torts in
which the United States itself is not involved. If found liable, they and they
alone must satisfy the judgment.

H Shauf v. Court of Appeals (1990)13

Petitioner Loida Q. Shauf, a Filipino by origin and married to an American who
is a member of the United States Air Force, applied for the vacant position of
Guidance Counselor, gs 1710-​9, in the Base Education Office at Clark Air Base,
for which she is eminently qualified.
….
By reason of her non-​selection to the position, petitioner Loida Q. Shauf filed
an equal employment opportunity complaint against private respondents, for
alleged discrimination against the former by reason of her nationality and sex.
[The U.S. Civil Service Commission, acting upon her complaint, found that the
person selected in her stead was indeed not qualified. She had also filed a sep-
arate discrimination complaint with the Base Commander and, while that was
pending, filed this complaint for damages against the responsible officers.]
Private respondents … filed a motion to dismiss on the ground that as officers
of the United States Armed Forces performing official functions in accordance
with the powers vested in them under the Philippine-​American Military Bases
Agreement, they are immune from suit. The motion to dismiss was denied by
the trial court. A motion for reconsideration was likewise denied.
….
Petitioners aver that private respondents are being sued in their private
capacity for discriminatory acts performed beyond their authority, hence the
instant action is not a suit against the United States Government which would
require its consent.
Private respondents, on the other hand, claim that in filing the case, peti-
tioners sought a judicial review by a Philippine court of the official actuations

13 g.r. No. 90314, 27 November 1990.

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Immunities 323

of respondents as officials of a military unit of the U.S. Air Force stationed

at Clark Air Base. The acts complained of were done by respondents while
administering the civil service laws of the United States. The acts sued upon
being a governmental activity of respondents, the complaint is barred by
the immunity of the United States, as a foreign sovereign, from suit without
its consent and by the immunity of the officials of the United States armed
forces for acts committed in the performance of their official functions pur-
suant to the grant to the United States armed forces of rights, power and
authority within the bases under the Military Bases Agreement. It is further
contended that the rule allowing suits against public officers and employees
for unauthorized acts, torts and criminal acts is a rule of domestic law, not of
international law. It applies to cases involving the relations between private
suitors and their government or state, not the relations between one govern-
ment and another from which springs the doctrine of immunity of a foreign
sovereign.
i. 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. This latter provision merely reiterates a policy
earlier embodied in the 1935 and 1973 Constitutions and also intended to man-
ifest our resolve to abide by the rules of the international community.
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. It must
be noted, however, that the rule is not so all-​encompassing as to be applicable
under all circumstances.
It is a different matter where the public official is made to account in his
capacity as such for acts contrary to law and injurious to the rights of plain-
tiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al.: “Inasmuch as the State autho-
rizes only legal acts by its officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the officials or officers
by one whose rights have been invaded or violated by such acts, for the protec-
tion of his rights, is not a suit against the State within the rule of immunity of
the State from suit.” … The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an injustice.

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i The Holy See v. Rosario Jr. (1994)14

Petitioner is the Holy See who exercises sovereignty over the Vatican City in
Rome, Italy, and is represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corpora-
tion engaged in the real estate business.
This petition arose from a controversy over a parcel of land consisting of
6,000 square meters (Lot 5-​A …) Parañaque, Metro Manila and registered in
the name of petitioner. [Petitioner Holy See agreed to sell the property to
Ramon Licup, who paid the earnest money and then transferred his rights to
Starbright.]
…
In view of the refusal of the squatters [informal settlers] to vacate the lots
sold to private respondent, a dispute arose as who of the parties has the respon-
sibility of evicting and clearing the land of squatters. Complicating the rela-
tions of the parties was the sale [in the meantime] by petitioner of [the same]
Lot 5-​A to Tropicana Properties and Development Corporation (Tropicana).
….
[Starbright sued the Holy See for:] 1) the annulment of the Deeds of Sale
between petitioner … on the one hand, and Tropicana on the other; (2) the
reconveyance of the lots in question; (3) specific performance of the agree-
ment to sell between it and the owners of the lots; and (4) damages.
….
[A]‌Motion for Intervention was filed before us by the Department of
Foreign Affairs, claiming that it has a legal interest in the outcome of the case
as regards the diplomatic immunity of petitioner, and that it “adopts by refer-
ence, the allegations contained in the petition of the Holy See insofar as they
refer to arguments relative to its claim of sovereign immunity from suit”
….
In Public International Law, when a state or international agency wishes
to plead sovereign or diplomatic immunity in a foreign court, it requests the
Foreign Office of the state where it is sued to convey to the court that said
defendant is entitled to immunity.
In the United States, the procedure followed is the process of “suggestion,”
where the foreign state or the international organization sued in an American
court requests the Secretary of State to make a determination as to whether
it is entitled to immunity. If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney General to submit to the court

14 g.r. No. 101949, 01 December 1994.

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Immunities 325

a “suggestion” that the defendant is entitled to immunity. In England, a simi-

lar procedure is followed, only the Foreign Office issues a certification to that
effect instead of submitting a “suggestion” [citations omitted].
In the Philippines, the practice is for the foreign government or the interna-
tional organization to first secure an executive endorsement of its claim of sov-
ereign or diplomatic immunity. But how the Philippine Foreign Office conveys
its endorsement to the courts varies [whether through the Secretary of Foreign
Affairs or through the Solicitor General].
In the case at bench, the Department of Foreign Affairs, through the Office
of Legal Affairs moved with this Court to be allowed to intervene on the side of
petitioner. The Court allowed the said Department to file its memorandum in
support of petitioner’s claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly
to the local courts by the respondents through their private counsels (Raquiza
v. Bradford, [supra]; United States of America v. Guinto, [supra] and companion
cases). In cases where the foreign states bypass the Foreign Office, the courts
can inquire into the facts and make their own determination as to the nature
of the acts and transactions involved.
iii
The burden of the petition is that respondent trial court has no jurisdic-
tion over petitioner, being a foreign state enjoying sovereign immunity. On the
other hand, private respondent insists that the doctrine of non-​suability is not
anymore absolute and that petitioner has divested itself of such a cloak when,
of its own free will, it entered into a commercial transaction for the sale of a
parcel of land located in the Philippines.
….
b. sovereign immunity
As expressed in Section 2 of Article ii of the 1987 Constitution, we have adopted
the generally accepted principles of International Law. Even without this affir-
mation, such principles of International Law are deemed incorporated as part
of the law of the land as a condition and consequence of our admission in the
society of nations (United States of America v. Guinto [supra]).
There are two conflicting concepts of sovereign immunity, each widely held
and firmly established. According to the classical or absolute theory, a sover-
eign 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 (United States of
America v. Ruiz, [supra]); Coquia and Defensor-​Santiago, Public International
Law 194 [1984]).

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….
The restrictive theory, which is intended to be a solution to the host of prob-
lems involving the issue of sovereign immunity, has created problems of its
own. Legal treatises and the decisions in countries which follow the restrictive
theory have difficulty in characterizing whether a contract of a sovereign state
with a private party is an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states
into purely commercial activities remotely connected with the discharge
of governmental functions. This is particularly true with respect to the
Communist states which took control of nationalized business activities and
international trading.
This Court has considered the following transactions by a foreign state with
private parties as acts jure imperii: (1) the lease by a foreign government of
apartment buildings for use of its military officers (Syquia v. Lopez [supra]);
(2) the conduct of public bidding for the repair of a wharf at a United States
Naval Station (United States of America v. Ruiz [supra]); and (3) the change
of employment status of base employees (Sanders v. Veridiano, 162 scra 88
[1988]).
On the other hand, this Court has considered the following transactions by
a foreign state with private parties as acts jure gestionis: (1) the hiring of a cook
in the recreation center, consisting of three restaurants, a cafeteria, a bakery,
a store, and a coffee and pastry shop at the John Hay Air Station in Baguio
City, to cater to American servicemen and the general public (United States of
America v. Rodrigo, 182 scra 644 [1990]); and (2) the bidding for the operation
of barber shops in Clark Air Base in Angeles City (United States of America
v. Guinto [supra]). The operation of the restaurants and other facilities open to
the general public is undoubtedly for profit as a commercial and not a govern-
mental activity. By entering into the employment contract with the cook in the
discharge of its proprietary function, the United States government impliedly
divested itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and transactions shall
be considered “commercial” and as constituting acts jure gestionis, we have to
come out with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a pri-
vate party cannot be the ultimate test. Such an act can only be the start of
the inquiry. The logical question is whether the foreign state is engaged in the
activity in the regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or transaction must then be
tested by its nature. If the act is in pursuit of a sovereign activity, or an incident

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thereof, then it is an act jure imperii, especially when it is not undertaken for
gain or profit.
….
In the case at bench, if petitioner has bought and sold lands in the ordinary
course of a real estate business, surely the said transaction can be categorized
as an act jure gestionis. However, petitioner has denied that the acquisition
and subsequent disposal of Lot 5-​A were made for profit but claimed that it
acquired said property for the site of its mission or the Apostolic Nunciature in
the Philippines. Private respondent failed to dispute said claim.
Lot 5-​A was acquired by petitioner as a donation from the Archdiocese of
Manila. The donation was made not for commercial purpose, but for the use
of petitioner to construct thereon the official place of residence of the Papal
Nuncio. The right of a foreign sovereign to acquire property, real or personal,
in a receiving state, necessary for the creation and maintenance of its diplo-
matic mission, is recognized in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 20–​22). This treaty was concurred in by the Philippine Senate
and entered into force in the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity
from the civil and administrative jurisdiction of the receiving state over any
real action relating to private immovable property situated in the territory of
the receiving state which the envoy holds on behalf of the sending state for the
purposes of the mission. If this immunity is provided for a diplomatic envoy,
with all the more reason should immunity be recognized as regards the sover-
eign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof
are likewise clothed with a governmental character. Petitioner did not sell Lot
5-​A for profit or gain. It merely wanted to dispose of the same because the
squatters living thereon made it almost impossible for petitioner to use it for
the purpose of the donation. The fact that squatters have occupied and are still
occupying the lot, and that they stubbornly refuse to leave the premises, has
been admitted by private respondent in its complaint [citation omitted].
[T]‌he Department of Foreign Affairs has formally intervened in this case
and officially certified that the Embassy of the Holy See is a duly accredited
diplomatic mission to the Republic of the Philippines exempt from local juris-
diction and entitled to all the rights, privileges and immunities of a diplomatic
mission or embassy in this country [citation omitted]. The determination of
the executive arm of government that a state or instrumentality is entitled
to sovereign or diplomatic immunity is a political question that is conclusive
upon the courts [citation omitted]. Where the plea of immunity is recognized
and affirmed by the executive branch, it is the duty of the courts to accept this

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claim so as not to embarrass the executive arm of the government in conduct-

ing the country’s foreign relations [citation omitted].

J Arigo v. Swift (2014)15

[A U.S. naval vessel ran aground in the Tubbataha Reefs, a unesco-​protected
coral sanctuary for biodiversity. The United States invoked its sovereign immu-
nity. Petitioners asked the Supreme Court to issue a protective order via a Writ
of Kalikasan (“Nature”) under the Rules of Procedure for Environmental Cases
issued by the Supreme Court.]
In 1993, Tubbataha was inscribed by the United Nations Educational
Scientific and Cultural Organization (unesco) as a World Heritage Site. It
was recognized as one of the Philippines’ oldest ecosystems, containing excel-
lent examples of pristine reefs and a high diversity of marine life. The 97,030-​
hectare protected marine park is also an important habitat for internationally
threatened and endangered marine species. unesco cited Tubbataha’s out-
standing universal value as an important and significant natural habitat for in
situ conservation of biological diversity; an example representing significant
on-​going ecological and biological processes; and an area of exceptional natu-
ral beauty and aesthetic importance.
….
The uss Guardian is an Avenger-​class mine countermeasures ship of the
US Navy. In December 2012, the US Embassy in the Philippines requested dip-
lomatic 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.” On January 6, 2013, the
ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief
stop for fuel in Okinawa, Japan.
On January 15, 2013, the uss Guardian departed Subic Bay for its next port
of call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. 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 one was
injured in the incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift,
expressed regret for the incident in a press statement. Likewise, US Ambassador
to the Philippines Harry K. Thomas, Jr., in a meeting at the Department of
Foreign Affairs (dfa) on February 4, “reiterated his regrets over the grounding
incident and assured Foreign Affairs Secretary Albert F. del Rosario that the

15 g.r. No. 206510, 16 September 2014.

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Immunities 329

United States will provide appropriate compensation for damage to the reef
caused by the ship.” By March 30, 2013, the US Navy-​led salvage team had fin-
ished removing the last piece of the grounded ship from the coral reef.
….
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 gov-
ernmental acts (jure imperii) 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.
….
In this case, the US respondents were sued in their official capacity as com-
manding officers of the US Navy who had control and supervision over the uss
Guardian and its crew. The alleged act or omission resulting in the unfortunate
grounding of the uss Guardian on the trnp was committed while they were
performing official military duties. Considering that the satisfaction of a judg-
ment 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 [Tubbataha Reefs Natural Park
(trnp) Act of 2009]16 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

16 Rep. Act No. 10067 (2010). Tubbataha Reefs Natural Park (trnp) Act of 2009.

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Reagan and Clinton, and the US judiciary in the case of United States v. Royal
Caribbean Cruise Lines, Ltd.
….
Insofar as the internal waters and territorial sea is concerned, the Coastal
State exercises sovereignty, subject to the unclos and other rules of interna-
tional law. Such sovereignty extends to the air space over the territorial sea as
well as to its bed and subsoil.
In the case of warships, as pointed out by Justice Carpio, they continue to
enjoy sovereign immunity subject to the following exceptions: [citing Article
30, Non-​compliance by warships with the laws and regulations of the coastal
State; Article 31, Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-​commercial purposes; and Article
32, Immunities of warships and other government ships operated for non-​
commercial purposes].
A foreign warship’s unauthorized entry into our internal waters with result-
ing damage to marine resources is one situation in which the above provisions
may apply. But what if the offending warship is a non-​party to the unclos, as
in this case, the US? [The Court proceeds to explain why U.S. non-​ratification
of the unclos has no implications in this case.]
….
We fully concur with Justice Carpio’s view that non-​membership in the
unclos does not mean that the US will disregard the rights of the Philippines
as a Coastal State over its internal waters and territorial sea. We thus expect
the US to bear “international responsibility” under Art. 31 in connection with
the uss Guardian grounding which adversely affected the Tubbataha reefs. ….

ii International Organizations

A World Health Organization v. Aquino (1972)17

[Constabulary officers secured a] warrant for the search and seizure of ten
crates consigned to petitioner Verstuyft … on the ground that they “contain
large quantities of highly dutiable goods” beyond the official needs of said peti-
tioner “and the only lawful way to reach these articles and effects for purposes
of taxation is through a search warrant.”
…. Dr. Leonce Verstuyft, who was assigned … to the Regional Office in
Manila as Acting Assistant Director of Health Services, is entitled to diplomatic

17 g.r. No. L-​35131, 29 November 1972.

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immunity, pursuant to the Host Agreement executed on July 22, 1951 between
the Philippine Government and the World Health Organization.
Such diplomatic immunity carries with it, among other diplomatic privi-
leges and immunities, personal inviolability, inviolability of the official’s prop-
erties, exemption from local jurisdiction, and exemption from taxation and
customs duties.
When petitioner Verstuyft’s personal effects contained in twelve (12) crates
entered the Philippines as unaccompanied baggage on January 10, 1972, they
were accordingly allowed free entry from duties and taxes. [However, the
respondent judge issued a warrant for] the search and seizure of the dutiable
items in said crates.
….
Upon protest of March 6, 1972 of Dr. Francisco Dy, who Regional Director
for the Western Pacific with station in Manila, Secretary of Foreign Affairs
Carlos P. Romulo, personally wired on the same date respondent judge advis-
ing that “Dr. Verstuyft is entitled to immunity from search in respect of his
personal baggage as accorded to members of diplomatic missions” pursuant to
the Host Agreement and requesting suspension of the search warrant order ….
1. The executive branch of the Philippine Government has expressly recog-
nized that petitioner Verstuyft is entitled to diplomatic immunity, pursuant
to the provisions of the Host Agreement. The Department of Foreign Affairs
formally advised respondent judge of the Philippine Government’s official
position that accordingly “Dr. Verstuyft cannot be the subject of a Philippine
court summons without violating an obligation in international law of the
Philippine Government” and asked for the quashal of the search warrant ….
It is a recognized principle of international law and under our system of
separation of powers that diplomatic immunity is essentially a political ques-
tion and courts should refuse to look beyond a determination by the execu-
tive branch of the government, and where the plea of diplomatic immunity
is recognized and affirmed by the executive branch of the government …, it is
then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the Solicitor General
in this case, or other officer acting under his direction. Hence, in adherence
to the settled principle that courts may not so exercise their jurisdiction by
seizure and detention of property, as to embarrass the executive arm of the
government in conducting foreign relations, it is accepted doctrine that “in
such cases the judicial department of (this) government follows the action of
the political branch and will not embarrass the latter by assuming an antago-
nistic jurisdiction.”
….

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2. [T]‌he Philippine Government is bound by the procedure laid down in

Article vii of the Convention on the Privileges and Immunities of the Specialized
Agencies of the United Nations for consultations between the Host State and the
United Nations agency concerned to determine, in the first instance the fact of
occurrence of the abuse alleged, and if so, to ensure that no repetition occurs
and for other recourses. This is a treaty commitment voluntarily assumed by
the Philippine Government and as such, has the force and effect of law. ….

B International Catholic Migration Commission v. Calleja (1990)18

[T]‌hese two cases involve the validity of claims of immunity, respectively,
by the International Catholic Migration Commission (icmc) and the
International Rice Research Institute, Inc. (irri) from the application of
Philippine labor laws.
[International Catholic Migration Commission (icmc) Case]
As an aftermath of the Vietnam War, the plight of Vietnamese refugees
fleeing from South Vietnam’s communist rule confronted the international
community.
In response to this crisis, on 23 February 1981, an Agreement was
forged between the Philippine Government and the United Nations High
Commissioner for Refugees whereby an operating center for processing Indo-​
Chinese refugees for eventual resettlement to other countries was to be estab-
lished in Bataan [citations omitted].
icmc was one of those accredited by the Philippine Government to oper-
ate the refugee processing center in Morong, Bataan. It was incorporated in
New York, USA, at the request of the Holy See, as a non-​profit agency involved
in international humanitarian and voluntary work. It is duly registered with
the United Nations Economic and Social Council (ecosoc) and enjoys
Consultative Status, Category ii. As an international organization rendering
voluntary and humanitarian services in the Philippines, its activities are par-
allel to those of the International Committee for Migration (icm) and the
International Committee of the Red Cross (icrc) [citations omitted].
[An employees’ union filed a petition for certification elections. icmc
objected, invoking diplomatic immunity as an international organization.
While the petition was pending, at that time, the Department of Foreign
Affairs granted icmc the status of a specialized agency with corresponding
diplomatic privileges and immunities.]
….

18 g.r. No. 85750, 28 September 1990.

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Immunities 333

As initially stated, the issue is whether or not the grant of diplomatic priv-
ileges and immunities to icmc extends to immunity from the application of
Philippine labor laws.
icmc sustains the affirmative of the proposition citing (1) its Memorandum
of Agreement with the Philippine Government giving it the status of a spe-
cialized agency []; (2) the Convention on the Privileges and Immunities of
Specialized Agencies, adopted by the UN General Assembly on 21 November
1947 and concurred in by the Philippine Senate …; and (3) Article ii, Section 2
of the 1987 Constitution, which declares that the Philippines adopts the gen-
erally accepted principles of international law as part of the law of the land.
….
Respondent [Bureau of Labor Relations] Director, on the other hand, with
whom the Solicitor General agrees, cites State policy and Philippine labor laws
to justify its assailed Order …. In addition, she contends that a certification
election is not a litigation but a mere investigation of a non-​adversary, fact-​
finding character. It is not a suit against icmc, its property, funds or assets, but
is the sole concern of the workers themselves.
[International Rice Research Institute (irri) Case]
[O]‌n 9 December 1959, the Philippine Government and the Ford and
Rockefeller Foundations signed a Memorandum of Understanding establish-
ing the International Rice Research Institute (irri) at Los Baños, Laguna. It
was intended to be an autonomous, philanthropic, tax-​free non-​profit, non-​
stock organization designed to carry out the principal objective of conducting
“basic research on the rice plant … for the people of Asia and other major rice-​
growing areas through improvement in quality and quantity of rice.”
Initially, irri was organized and registered with the Securities and
Exchange Commission as a private corporation subject to all laws and regu-
lations. However, by virtue of Pres. Decree No. 1620, promulgated on 19 April
1979, irri was granted the status, prerogatives, privileges and immunities of an
international organization.
[An employees’ union filed a Petition for Direct Certification Election with
the Department of Labor. irri opposed it, invoking its immunity. The Secretary
of Labor upheld the immunity of irri.]
Findings in Both Cases
There can be no question that diplomatic immunity has, in fact, been
granted icmc and irri.
Article ii of the Memorandum of Agreement between the Philippine
Government and icmc provides that icmc shall have a status “similar to that
of a specialized agency.” Article iii, Sections 4 and 5 of the Convention on the
Privileges and Immunities of Specialized Agencies, adopted by the UN General

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Assembly on 21 November 1947 and concurred in by the Philippine Senate

through Resolution No. 19 on 17 May 1949, explicitly [grants immunity from
all legal process to the “specialized agencies”, their property and assets, and
premises].
irri is similarly situated. Pres. Decree No. 1620, Article 3, is explicit in its
grant of immunity to irri from … any penal, civil and administrative proceed-
ings ….
The foregoing opinions constitute a categorical recognition by the Executive
Branch of the Government that icmc and irri enjoy immunities accorded to
international organizations, which determination has been held to be a polit-
ical question conclusive upon the Courts in order not to embarrass a political
department of Government.
….
A brief look into the nature of international organizations and specialized
agencies is in order. The term “international organization” is generally used
to describe an organization set up by agreement between two or more states.
Under contemporary international law, such organizations are endowed with
some degree of international legal personality such that they are capable of
exercising specific rights, duties and powers. They are organized mainly as a
means for conducting general international business in which the member
states have an interest. The United Nations, for instance, is an international
organization dedicated to the propagation of world peace.
“Specialized agencies” are international organizations having functions in
particular fields. The term appears in Articles 57 and 63 of the Charter of the
United Nations:

The Charter, while it invests the United Nations with the general task of
promoting progress and international cooperation in economic, social,
health, cultural, educational and related matters, contemplates that
these tasks will be mainly fulfilled not by organs of the United Nations
itself but by autonomous international organizations established by
inter-​governmental agreements outside the United Nations. There are
now many such international agencies having functions in many dif-
ferent fields, e.g. in posts, telecommunications, railways, canals, rivers,
sea transport, civil aviation, meteorology, atomic energy, finance, trade,
education and culture, health and refugees. Some are virtually world-​
wide in their membership, some are regional or otherwise limited in
their membership. The Charter provides that those agencies which have
‘wide international responsibilities’ are to be brought into relationship
with the United Nations by agreements entered into between them and

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Immunities 335

the Economic and Social Council, are then to be known as ‘specialized

agencies.

The rapid growth of international organizations under contemporary interna-

tional law has paved the way for the development of the concept of international
immunities.
….
There are basically three propositions underlying the grant of international
immunities to international organizations. These principles, contained in the
ilo Memorandum are stated thus: 1) international institutions should have
a status which protects them against control or interference by any one gov-
ernment in the performance of functions for the effective discharge of which
they are responsible to democratically constituted international bodies in
which all the nations concerned are represented; 2) no country should derive
any national financial advantage by levying fiscal charges on common interna-
tional funds; and 3) the international organization should, as a collectivity of
States members, be accorded the facilities for the conduct of its official busi-
ness customarily extended to each other by its individual member States. The
theory behind all three propositions is said to be essentially institutional in
character. “It is not concerned with the status, dignity or privileges of individu-
als, but with the elements of functional independence necessary to free inter-
national institutions from national control and to enable them to discharge
their responsibilities impartially on behalf of all their members.” The raison
d’être for these immunities is the assurance of unimpeded performance of
their functions by the agencies concerned.
The grant of immunity from local jurisdiction to icmc and irri is clearly
necessitated by their international character and respective purposes. The
objective is to avoid the danger of partiality and interference by the host coun-
try in their internal workings. The exercise of jurisdiction by the Department
of Labor in these instances would defeat the very purpose of immunity, which
is to shield the affairs of international organizations, in accordance with inter-
national practice, from political pressure or control by the host country to the
prejudice a member States of the organization, and to ensure the unhampered
performance of their functions.

C Liang v. People (2000)19

[The Asian Development Bank is a multilateral organization headquartered in
Manila. Its governing Charter provides that “all officers and employees of the

19 g.r. No. 125865, 28 January 2000.

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336  Chapter 8

Bank … shall be immune from legal process with respect to acts performed by
them in their official capacity, except when the Bank waives the immunity.”20]
Petitioner is an economist working with the Asian Development Bank
(adb). Sometime in 1994, for allegedly uttering defamatory words against fel-
low adb worker Joyce Cabal, he was charged before the Metropolitan Trial
Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
…. Petitioner was arrested by virtue of a warrant issued by the MeTC. After
fixing petitioner’s bail at P2,400.00 per criminal charge, the MeTC released
him to the custody of the Security Officer of adb. The next day, the MeTC
judge received an “office of protocol” from the Department of Foreign Affairs
(dfa) stating that petitioner is covered by immunity from legal process under
Section 45of the Agreement between the adb and the Philippine Government
regarding the Headquarters of the adb (hereinafter Agreement) in the country.
Based on the said protocol communication that petitioner is immune from
suit, the MeTC judge without notice to the prosecution dismissed the two
criminal cases.
….
First, courts cannot blindly adhere and take on its face the communication
from the dfa that petitioner is covered by any immunity. The dfa’s determi-
nation that a certain person is covered by immunity is only preliminary which
has no binding effect in courts. In receiving ex parte the dfa’s advice and in
motu proprio dismissing the two criminal cases without notice to the prosecu-
tion, the latter’s right to due process was violated. It should be noted that due
process is a right of the accused as much as it is of the prosecution. The needed
inquiry in what capacity petitioner was acting at the time of the alleged utter-
ances requires for its resolution evidentiary basis that has yet to be presented
at the proper time. At any rate, it has been ruled that the mere invocation of
the immunity clause does not ipso facto result in the dropping of the charges.
Second, under Section 45 of the Agreement which provides [for] “immu-
nity from legal process with respect to acts performed by them in their official
capacity except when the Bank waives the immunity”, the immunity men-
tioned therein is not absolute, but subject to the exception that the act was
done in “official capacity.” It is therefore necessary to determine if petitioner’s
case falls within the ambit of Section 45(a). Thus, the prosecution should have
been given the chance to rebut the dfa protocol and it must be accorded the
opportunity to present its controverting evidence, should it so desire.

20 Agreement Establishing the Asian Development Bank, art. 55 (Immunities and

Privileges), available at: https://​www.adb.org/​documents/​agreement-​establishing-​asian
-​development-​bank-​adb-​charter.

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Immunities 337

Third, slandering a person could not possibly be covered by the immunity

agreement because our laws do not allow the commission of a crime, such as
defamation, in the name of official duty. The imputation of theft is ultra vires
and cannot be part of official functions. It is well-​settled principle of law that a
public official may be liable in his personal private capacity for whatever dam-
age he may have caused by his act done with malice or in bad faith or beyond
the scope of his authority or jurisdiction. It appears that even the government’s
chief legal counsel, the Solicitor General, does not support the stand taken by
petitioner and that of the dfa.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplo-
matic agent, assuming petitioner is such, enjoys immunity from criminal juris-
diction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the
receiving state outside his official functions. As already mentioned above, the
commission of a crime is not part of official duty.

D Salaveria and Gonzales v. Commissioner of Internal Revenue

(Regional Trial Court, 2014),21 as Affirmed in Salaveria and Gonzales
v. Commissioner of Internal Revenue (Court of Appeals, 2015)22
[Petitioners are Filipino employees of Asian Development Bank who chal-
lenge the Commissioner of Internal Revenue’s order for them to pay taxes.
They invoke their privileges and immunities under the Bank’s Charter and the
Headquarters Agreement signed by the Bank with the Philippine Government.
The Bank’s Charter provides in Article 56, Exemption from Taxation, as
follows:

2. No tax shall be levied on or in respect of salaries and emoluments paid

by the Bank to Directors, alternates, officers or employees of the Bank, …
except where a [state] member deposits with its instrument of ratifica-
tion or acceptance a declaration that such member retains for itself and
its political subdivisions the right to tax salaries and emoluments paid by
the Bank to citizens or nationals of such member.23

The Bank’s Headquarters Agreement with the Philippine Government pro-

vides the following Article xii, Privileges and Immunities:

21 Civ. Case No. MC14-​8775 (rtc-​Branch 213, Mandaluyong City, 30 September 2014).
22 ca-​g .r. cv No. 104374 (Court of Appeals, 02 July 2015).
23 adb Charter, supra note 20.

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338  Chapter 8

Section 45. Officers and staff of the Bank … shall enjoy the following priv-
ileges and immunities:

(a) Immunity from legal process with respect to acts performed by

them in their official capacity except when the Bank waives the
immunity; …. 24
The Commissioner of Internal Revenue issued the disputed Memorandum
Circular which would tax Filipinos staff members in the adb. Petitioners were
charged with tax evasion.]
It is the understanding of this Court that the … adb Charter, is actu-
ally a treaty wherein the Philippines is one of the country signatories. The
Philippine Senate, thru resolution No. 6 adopted on March 16, 1966, con-
curred in the ratification of the agreement. Only treaties are ratified by the
Philippine Senate.
The case of Landbank v. Atlanta [citation omitted] enunciated the rule of
pacta sunt servanda, a fundamental maxim of international law that requires
the parties to keep their agreement in good faith, bears pointing out that the
pacta sunt servanda rule has become part of the law of the land through the
incorporation clause found under Section 2, Article ii of the Constitution …
This means that the adb Charter has the force of law in the Philippines.
….
Based on the foregoing, there is no doubt that the adb Charter has the force
of law and should be given equal standing with national legislative enactments.
…
It is evident from [Article 56, Exemption from Taxation] that its intent is to
provide the tax exemption on the salaries of the employees of the bank regard-
less of nationality. Since the Philippines is a country-​signatory, the Filipino
employees of adb are covered by the tax exemption as a general rule. However,
the same provision allowed for a certain exception, namely, where a member
deposits with its instrument ratification or acceptance a declaration that it
retains for itself the right to tax salaries and emoluments paid by the Bank to
its citizens or nationals.
Indeed, the Philippines made its declaration, to wit:

24 Agreement Between the Asian Development Bank and the Government of the Republic
of the Philippines Regarding the Headquarters of the Asian Development Bank, § 45
(“Immunity from legal process with respect to acts performed by them in their official
capacity except when the Bank waives the immunity”), available at: https://​www.adb.org/​
sites/​default/​files/​institutional-​document/​32422/​files/​adb-​phil-​agreement.pdf.

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Immunities 339

now therefoere, be it known that I, ferdinand e. marcos,

President of the Republic of the Philippines, … do hereby … ratify and
confirm the [adb Charter] subject to the reservation that the Philippines
declares that it retains for itself and its political subdivision the right to
tax salaries and emoluments paid by the Bank to citizens or national of
the Philippines.

This petition thus raised a novel question of law, i.e., is the term “Reservation”
in the Philippine Declaration equivalent to the term “Retain” as specifically
provided for under Article 56 of the adb Charter in order for the member state
to tax its nationals?
This Court finds that the terms “Reservation: and ‘Retain” have totally dif-
ferent meanings. …. Article 2(d) of the Vienna Convention on the Law of
Treaties, in the interpretation of the terms of a treaty, the rule is that it shall
be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object
and purpose. Thus the term “Reservation” in the Philippine Declaration should
be understood in its ordinary meaning, that the government’s right to tax its
nationals is not self-​operative.
….
The word reserve thus entails the element of futurity. In other words, the
power to tax the Filipino nationals may or may not be exercised in the future
by the Philippine Government thru its Congress.
….
It is also noted that the Philippine Declaration merely used the word “res-
ervation” and not a categorical declaration that it retains the right to tax the
salaries and emoluments paid by adb to the Philippine citizens or nationals,
unlike the U.S. Declaration, contained in an enabling law, in fact, wherein it
categorically used the word “retain.” … If indeed the intention is to tax Filipino
nationals, then the terms used to retain the taxability of the Filipino nationals
should have been clear and unambiguous.
Considering that the 1939 Tax Code subjects Filipinos to taxation, Article 56
of the adb Charter is considered to be a specific amendment in so far as to the
rule on the taxability of Filipinos working in adb is concerned. The principle
lex posterior derogate priori takes effect, which means a treaty may repeal a
statute and a statute may repeal a treaty.
Since the right to tax the Filipino nationals working in adb is not auto-
matic, there must be an operative act, apart from the reservation itself, for the
Philippine government to tax its nationals. The question now posed before
this Court is whether the … Tax Codes … and the subject rmc are considered

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340  Chapter 8

“operative acts” in order to subject the Filipino employees in adb to taxation.

The answer is in the negative.
The Tax Code is a law of general application and it was not enacted solely
to remove the tax exemption given to Filipino employees in adb and since the
1977 National Internal Revenue Code and the prevailing Tax Code are not the
operative acts, then it stands to reason that the subject rmc cannot be a valid
administrative circular. The legal truism that [the] “spring cannot rise higher
than its source” applies to the subject rmc.

E Southeast Asian Fisheries Development Center v. National Labor

Relations Commission (1992)25
[The Southeast Asian Fisheries Development Center-​Aquaculture Department
(seafdec-​a qd) … is part of an international organization, the Southeast
Asian Fisheries Development Center. In a labor dispute, the National Labor
Relations Commission (nlrc) ordered seafdec-​a qd to pay separation pay
and other post-​employment benefits to a former employee.]
The [seafdec-​a qd] is an international agency beyond the jurisdiction of
public respondent nlrc.
It was established by the Governments of Burma, Kingdom of Cambodia,
Republic of Indonesia, Japan, Kingdom of Laos, Malaysia, Republic of the
Philippines, Republic of Singapore, Kingdom of Thailand and Republic of
Vietnam [citation omitted].
The Republic of the Philippines became a signatory to the Agreement estab-
lishing seafdec on January 16, 1968. ….
….
Being an intergovernmental organization, seafdec including its
Departments (aqd), enjoys functional independence and freedom from con-
trol of the state in whose territory its office is located.
….
Pursuant to its being a signatory to the Agreement, the Republic of the
Philippines agreed to be represented by one Director in the governing sea-
fdec Council [citation omitted] and that its national laws and regulations
shall apply only insofar as its contribution to seafdec of “an agreed amount
of money, movable and immovable property and services necessary for the
establishment and operation of the Center” are concerned [citation omitted].
It expressly waived the application of the Philippine laws on the disbursement
of funds of petitioner seafdec-​a qd [citation omitted].

25 g.r. No. 86773, 14 February 1992.

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Immunities 341

The then Minister of Justice likewise opined that Philippine Courts have no
jurisdiction over seafdec-​a qd in Opinion No. 139, Series of 1984—​

4. One of the basic immunities of an international organization is immu-

nity from local jurisdiction, i.e., that it is immune from the legal writs and
processes issued by the tribunals of the country where it is found. [cita-
tion omitted] The obvious reason for this is that the subjection of such
an organization to the authority of the local courts would afford a con-
venient medium thru which the host government may interfere in their
operations or even influence or control its policies and decisions of the
organization: besides, such subjection to local jurisdiction would impair
the capacity of such body to discharge its responsibilities impartially on
behalf of its member-​states. In the case at bar, for instance, the enter-
tainment by the National Labor Relations Commission of Mr. Madamba’s
reinstatement cases would amount to interference by the Philippine
Government in the management decisions of the searca governing
board; even worse, it could compromise the desired impartiality of the
organization since it will have to suit its actuations to the requirements
of Philippine law, which may not necessarily coincide with the interests
of the other member-​states. It is precisely to forestall these possibilities
that in cases where the extent of the immunity is specific in the enabling
instruments of international organizations, jurisdictional immunity is
specified in the enabling instruments of international organizations,
jurisdictional immunity from the host country is invariably among the
first accorded. [citation omitted]

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 ­c hapter 9

Extradition

The Philippine law on extradition was codified during the Marcos years and
that law has not been revised to date. What has changed over time, however,
has been its interpretation and application. Apart from a few other cases, the
main Supreme Court decisions in this field actually stem only from two extra-
dition requests that have come to the Court for review several times at various
stages of the proceedings, and with the Court reversing somewhere itself along
the way. Interestingly, the Supreme Court has recently shifted the debate from
an exclusively treaty-​based discussion of pacta sunt servanda toward human
rights as part of customary international law.

The Philippines as the Requested State

Statutory Framework
The Philippine Extradition Law of 1977 codifies the following:
1. The rule that an extradition treaty is required in order for the Philippine
government to “remove an accused [and] plac[e]‌him at the disposal of
foreign authorities” for prosecution or service of sentence1;
2. The double criminality principle that the extraditee must be charged
with an “offense punishable under the laws both of the requesting state
or government and the Republic of the Philippines”2;
3. The internal procedure within the Philippine government, namely, sub-
mission of request to the Department of Foreign Affairs,3 which then
refers it to the Department of Justice,4 which files the petition before the
Courts;5
4. The summary nature of extradition proceedings consistent with “a fair
and speedy disposition of the case”6; and

1 Pres. Dec. No. 1069, § 2 (a) (1977). Philippine Extradition Law (hereinafter, “Extradition Law”).
2 Extradition Law, supra note 1, § 3 (Aims of Extradition).
3 Extradition Law, supra note 1, § 4 (Request; By whom made; Requirements).
4 Extradition Law, supra note 1, § 4 (Duty of Secretary of Foreign Affairs).
5 Extradition Law, supra note 1, § 6 (Issuance of Summons; Temporary Arrest).
6 Extradition Law, supra note 1, § 9 (Nature and Conduct of Proceedings).

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Extradition 343

5. authority for the “temporary arrest” (after the filing of the petition)7 and
“provisional arrest” (before receipt of the extradition request).8
In Philippine law, the “double criminality” principle arose prominently in the
non-​extradition of the author of the computer virus called “iloveyou” which,
in May 2000, caused “US$7 billion in software damage, time lost, and lost com-
merce” in twenty countries.9 The virus was actually part of a rejected thesis in
a computer school in Manila. However, the author of the virus could not have
been extradited under the double-​criminality principle because what he com-
mitted was not a crime under Philippine law at the time.10
Indeed within barely a month, the Congress passed the Electronic Commerce
Act which penalized “hacking or cracking”, defined as follows:

unauthorized access into or interference in a computer system/​server or

information and communication system; or any access in order to cor-
rupt, alter, steal, or destroy using a computer or other similar informa-
tion and communication devices, without the knowledge and consent of
the owner of the computer or information and communication system,
including the introduction of computer viruses and the like, resulting
in the corruption, destruction, alteration, theft or loss of electronic data
messages or electronic documents.11

Double-​criminality will be applied by the Supreme Court in the Wright and

Muñoz cases below.
The Extradition Law provides judicial safeguards for the person sought to be
extradited, who is entitled to a public hearing and to counsel.12 On the other

7 Extradition Law, supra note 1, § 6 (Issuance of Summons; Temporary Arrest).

8 Extradition Law, supra note 1, § 20 (Provisional Arrest).
9 Richard T. De George, The Ethics of Information Technology and
Business 243 (2008). See also, The 20-​Year Hunt for the Man Behind the Love Bug Virus,
Wired (Sep. 12, 2020), available at: https://​www.wired.com/​story/​the-​20-​year-​hunt-​for-​
the-​man-​behind-​the-​love-​bug-​virus/​?utm_​source=facebook&fbclid=IwAR1i0xirGfMD_​
78k5Qk4Syqsm1wn6n3kIoS97AG7WDMc7P4ZHkHO4E_​nyeE.
10 Robert Frank, Philippine Prosecutors Drop Charges in ‘Love Bug’ Case, The Wall
Street Journal, 22 August 2000, available at: https://​www.wsj.com/​articles/​
SB966862157148570125; James Grifffiths, ‘I love you’: How a badly-​coded computer virus
caused billions in damage and exposed vulnerabilities which remain 20 years on, cnn
Business, 04 May 2020, available at: at https://​edition.cnn.com/​2020/​05/​01/​tech/​iloveyou-​
virus-​computer-​security-​intl-​hnk/​index.html; Stewart D. Personick and Cynthia
A. Patterson (eds.), Critical Information Infrastructure Protection and
the Law: An Overview of Key Issues 42–​43 (2003).
11 Rep. Act No. 8792 (2000). Electronic Commerce Act.
12 Extradition Law, supra note 1, §8 (Hearing in Public; Exception; Legal Representation).

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344  Chapter 9

hand, it enables the executive branch to ensure the efficacy of the extradition
by allowing the arrest of the person even while the proceedings are pending,13
and eventually the “surrender” of the extradite to the requesting state.14
In Wright v. Court of Appeals, dealing with the Philippine-​ Australia
Extradition Treaty, the Supreme Court held that a person can be extradited
even if the crime for which he is sought had been allegedly committed prior
to the effectivity of the Extradition Treaty provided the offense, when it was
committed, was already punishable under the law of the requesting state. In
support of that conclusion, the Court held that prohibition against the ex post
facto application of laws under the Philippine Constitution did not apply to
extradition treaties which were “neither a piece of criminal legislation or a
criminal procedural statute.”

The Mark Jimenez Cases

The first series pertains to the U.S. request to extradite Mark Jimenez, a lead-
ing and influential businessman who was a trusted adviser to then President
Joseph Estrada and, at a later stage of the extradition process, was actually a
sitting Member of the Philippine Congress. He faced charges in the United
States for tax evasion, fraud and illegal election-​campaign contributions. He
was eventually extradited to the United States where he was convicted and
jailed. Four Supreme Court decisions arose from his extradition.
In 1999, the United States requested his extradition under the Philippines-​
U.S. Extradition treaty. Jimenez had secured a temporary restraining order
from a trial court for a stay in the proceedings., which the Justice Department
immediately challenged before the Supreme Court.
The first Supreme Court ruling arose when the Justice Department refused
to even furnish Jimenez copies of the extradition request and supporting doc-
uments, saying it was premature because the matter was merely at the evalua-
tion stage. The Court upheld Jimenez in its January 2000 decision in Secretary
of Justice v. Honorable Lantion, the majority holding that, as a fundamental
matter of due process and specifically the right to notice and hearing, Jimenez
was entitled to see the basic documents upon which his liberty may be cur-
tailed. The Court held that since the evaluation process partook of the nature
of a criminal investigation, in the absence of any statutory right to those docu-
ments, “we must apply the rules of fair play.”

13 Extradition Law, supra note 1, §6(1) (Temporary Arrest) and §20(a) (Provisional Arrest).
See also, foonotes 284 and 285.
14 Extradition Law, supra note 1, §16 (Surrender of Accused).

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Extradition 345

The second Supreme Court case in this series arose when the Justice
Department filed a Motion for Reconsideration. In October 2000, the Court
totally reversed itself, with no change in its composition but with three justices
switching sides, holding that the constitutional rights of the accused do not
apply because extradition is not a criminal proceeding. It does not adjudge
the guilt or innocence of the accused, which is decided by the courts of the
requesting state. Moreover, neither the Extradition Law nor the Philippines-​
U.S. Extradition Treaty mentioned a notice and hearing requirement at the
evaluation stage. On the other hand, the “object and purpose” rule under the
Vienna Convention on the Law of Treaties required the Philippines not to frus-
trate the effectiveness of the extradition agreement.
The third Supreme Court decision came about after the extradition petition
had been filed in a Manila trial court, which granted bail but with measures to
check the risk of flight, namely, the surrender of Jimenez’s passport and a Hold
Departure Order to be enforced by immigration authorities. In Government of
the United States v. Honorable Purganan, the Court set aside the order granting
bail on the ground that “bail is not a matter of right in extradition cases” because
the constitutional provisions on bail apply only to criminal proceedings, but
allowed for an exception if the extradite will not pose a flight risk or danger
to the community, or if “there exist special, humanitarian and compelling cir-
cumstances.” Significantly, the Court held that the extraditee may be arrested
without notice and hearing which are not required under the Extradition
Treaty, the Philippine Extradition Law, or the constitutional requirements for a
valid warrant of arrest. The Court reasoned that, indeed, a prior hearing would
foster the risk of flight and frustrate the purpose of extradition.
The fourth and final case resolved Jimenez’s Motion for Reconsideration,
where the Court merely affirmed the earlier ruling. What this chapter includes
is Justice Jose Vitug’s Dissenting Opinion maintaining his dissent in the origi-
nal case and affirming the extraditee’s right to due process and fair treatment.
Vitug characterized extradition as the exception to the rule, the rule being the
international customary law on asylum. He cited the “emergence of humani-
tarian international law” that protects the individual and “places limitations
on the power of the respective sovereigns that did not historically exist.” Since
the duty to extradite exists only on the basis of specific treaties, he concludes,
“the obligation does not find basis in customary international law or … gener-
ally accepted principles of international law.”
Similarly, extradition procedure is not governed by a “universal”, “uniform”
or “standard” practice among states. Accordingly, he says, extradition pro-
cedure should be governed by the Philippine Constitution. Thus the Court
should have applied the constitutional rights of the accused in criminal cases

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because the “extradition process must not be viewed as existing in a vacuum

… isolated from the entire criminal process.” Except for the fact that the initial
arrest is in one state while the trial is in another, he concludes, “both proceed-
ings are an inquiry into whether a person should stand trial” to determine his
guilt or innocence.

The Muñoz Cases

The second series of cases pertains to the request to extradite Juan Antonio
Muñoz to Hong Kong for fraud and corruption-​related charges committed
while he was Head of the Treasury Department of the Central Bank of the
Philippines. It consists of three Supreme Court decisions.
The first decision pertained to the “provisional arrest” clause in the
Philippine Extradition Law, which allows the Justice Department to secure a
warrant of arrest from a trial court. The Court of Appeals nullified the warrant,
saying inter alia that the “urgency” requirement for provisional arrest had not
been satisfied, that the trial judge relied on mere fax copies of the supporting
documents, and that the double criminality requirement had not been met.
The Supreme Court reversed the Court of Appeals and upheld the warrant
of arrest, saying that the “urgency” requirement was met because the “gravity of
the imposable penalty” was “enough impetus” for Muñoz to abscond Moreover,
the Court noted that the requirements for “provisional arrest” differed from,
and were much lower than, those for the filing of the extradition request, in
keeping with pressing nature of the former. The Supreme Court also noted that
the question of double criminality was for the trial court, and not the Court of
Appeals, to determine because it went into the issue of extraditability.
In the second decision, the extradition petition had already been filed with
the trial court. Significantly, the first judge denied the application for bail, but
subsequently inhibited from the case. The next judge, whose name appears
as the nominal respondent in this case, reversed that ruling and granted bail.
In this case, the Supreme Court “reexamined” its 2002 ruling in Government
of the United States v. Honorable Purganan that “limited the exercise of the
right to bail to criminal proceedings.” The Court reasoned that “[i]‌f bail can be
granted in deportation cases [which are administrative in character], we see
no justification why it should not also be allowed in extradition cases.” In this
2007 decision, it held emphatically that the “modern trend in public interna-
tional law is the primacy placed on the worth of the individual person and the
sanctity of human rights”, citing the Universal Declaration of Human Rights as
binding customary law, and likewise the Nuremberg, Tokyo and Yugoslavia war
crimes trials. The Court concluded that extradition “while ostensibly admin-
istrative, bears all earmarks of a criminal process” but, being sui generis, bail

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may be granted applying the test set forth in Government of the United States
v. Honorable Purganan, namely “clear and convincing evidence” showing that
there is no risk of flight.
Finally, the third case in this series dealt with primarily international law
issues. The trial court had already granted the extradition petition but Muñoz
appealed it to the Court of Appeals, questioning inter alia the capacity of the
Hong Kong government to invoke the extradition treaty considering that it
was signed when Hong Kong was still a British colony and it was now being
invoked by the Hong Kong Special Administrative Region (hksar) as a part
of the People’s Republic of China, and the lower court’s failure to apply the
double criminality principle.
On the first issue, the Court of Appeals upheld the lower court and held that,
although foreign affairs was excluded in the UK-​China Joint Declaration grant-
ing autonomy to Hong Kong, and even if Hong Kong’s post-​handover Basic Law
empowered Hong Kong to thenceforth sign treaties in its own name, including
extradition treaties, the “rp-​Hong Kong Agreement subsists and has not been
revoked or terminated” by the parties. Indeed there had been an “exchange of
notes” between the two governments that confirmed the “continuous enforce-
ability of the rp-​h k Agreement.”
On the second issue, the Court of Appeals reversed the lower court and held
that the “crime of accepting an advantage as an agent” was not extraditable
under the double criminality principle, and should be excluded. The lower
court had held otherwise and equated it to the crime of “corrupt practices of
public officers” under Philippine law. However, the Court of Appeals held that
that Philippine law applied to persons belonging to the public sector, whereas
the crime charged under Hong Kong pertained to private individuals.

The Philippines as the Requesting State

An anti-​Marcos provincial governor was gunned down outside the capitol
building in the violence that followed the 1986 presidential elections that even-
tually led to the fall of Marcos and the restoration of democracy under Corazon
Aquino. In 1987, one of the accused in the murder case, Rodolfo Pacificador, son
of a leading politician closely allied with Marcos, entered Canada and claimed
refugee status. Pending his refugee determination, the new government in the
Philippines requested his extradition.
Canada’s Minister of Justice issued a “warrant of surrender” for his extradi-
tion, rejecting his argument that the prosecution was politically motivated and
for the purpose of punishing him for his political beliefs. The Minister of Justice
likewise affirmed that “Canada could rely on the Philippines’ legal safeguards
… to ensure … a fair trial.” He obtained from the Philippines two assurances,

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348  Chapter 9

namely, first, that the death penalty would not be imposed or carried out on
the extraditee and, second, that the Philippines would exert its best efforts to
ensure that the trial will be completed within one date from his surrender.
However, Pacificador challenged this before the Ontario Court of Appeal,
which set aside the warrant of surrender because the Philippines’ “criminal
procedures have been interpreted and applied in this very prosecution in a
manner that ‘sufficiently shocks the conscience’ that to surrender the appel-
lant would violate his [constitutional] right not to be denied life, liberty and
security of the person except in accordance with the principles of fundamen-
tal justice.” The Canadian court found it “simply unacceptable” that the trial
was delayed by a Temporary Restraining Order by the Supreme Court which
remained for more than a decade. The Canadian court was appalled that the
“Supreme Court [of the Philippines], the very institution to which the appel-
lant would have to look for protection from delay and political manipulation
and interference, is the cause of the unconscionable delay in proceeding with
the prosecution.”
Significantly too, this case demonstrates how the Philippine restoration of
the death penalty in 1993 posed a potential impediment to extradition from
countries that have decidedly abolished and opposed capital punishment. The
death penalty was first abolished in the post-​Marcos Constitution of 1987,15
restored by law in 1993,16 abolished by law again in 2006.17 This abolition
was confirmed further by the Philippine ratification of the Second Optional
Protocol to the International Covenant on Civil and Political Rights in 2007.18
Accordingly, when the initial order of extradition was issued by the Canadian
Minister of Justice in this case in 1996, the death penalty was still in place and
the Philippine government had to undertake that the death penalty would not
be used in this case.

15 Const. art. iii §19.

16 Republic Act No. 7659, An Act To Impose The Death Penalty On Certain Heinous Crimes,
Amending For That Purpose The Revised Penal Code As Amended, Other Special Penal
Laws, And For Other Purposes (13 December 1993).
17 Republic Act No. 9346, An Act Prohibiting The Imposition Of Death Penalty In The
Philippines (24 June 2006).
18 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming
at the abolition of the death penalty, Status of Treaties, at https://​treaties.un.org/​Pages/​
ViewDetails.aspx?src=TREATY&mtdsg_​no=IV-​12&chapter=4&lang=en.

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i The Philippines as the Requested State

A Prescribing the Procedure for the Extradition Of Persons Who Have

Committed Crimes in a Foreign Country (1977)19
….
section 2. Definition of Terms.—​When used in this law, the following terms
shall, unless the context otherwise indicates, have meanings respectively
assigned to them:
(a) “Extradition”—​The removal of an accused from the Philippines with
the object of placing him at the disposal of foreign authorities to enable
the requesting state or government to hold him in connection with any
criminal investigation directed against him or the execution of a pen-
alty imposed on him under the penal or criminal law of the requesting
state or government.
….
section 3. Aims of Extradition.—​Extradition may be granted only pursuant
to a treaty or convention, and with a view to:
(a) A criminal investigation instituted by authorities of the requesting state
or government charging the accused with an offense punishable under
the laws both of the requesting state or government and the Republic
of the Philippines by imprisonment or other form of deprivation of lib-
erty for a period stipulated in the relevant extradition treaty or conven-
tion; or
(b) The execution of a prison sentence imposed by a court of the request-
ing state or government, with such duration as that stipulated in the rel-
evant extradition treaty or convention, to be served in the jurisdiction
of and as a punishment for an offense committed by the accused within
the territorial jurisdiction of the requesting state or government.
section 4. Request; By whom made; Requirements.—​
(1) Any foreign state or government with which the Republic of the
Philippines has entered into extradition treaty or convention, and only
when the relevant treaty or convention remains in force, may request
for the extradition of any accused who is or suspected of being in the
territorial jurisdiction of the Philippines.
(2) The request shall be made by the Foreign Diplomat of the requesting
state or government, addressed to the Secretary of Foreign Affairs, and

19 Extradition Law, supra note 1.

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shall be accompanied by: [a copy of the criminal charges and warrant of

arrest, or the decision or sentence imposed, in the requesting state].
….
section 5. Duty of Secretary of Foreign Affairs; Referral of Request: Filing
of Petition.—​(1) Unless it appears to the Secretary of Foreign Affairs that the
request fails to meet the requirements of this law and the relevant treaty or
convention, he shall forward the request together with the related documents
to the Secretary of Justice, who shall immediately designate and authorize an
attorney in his office to take charge of the case. ….
section 6. Issuance of Summons; Temporary Arrest; Hearing, Service of
Notices.—​(1) Immediately upon receipt of the petition, the presiding judge of
the court shall, as soon as practicable, summon the accused to appear and to
answer the petition on the day and hour fixed in the order. He may issue a war-
rant for the immediate arrest of the accused which may be served anywhere
within the Philippines if it appears to the presiding judge that the immediate
arrest and temporary detention of the accused will best serve the ends of jus-
tice. ….
section 9. Nature and Conduct of Proceedings.—​(1) In the hearing, the
provisions of the Rules of Court insofar as practicable and not inconsistent
with the summary nature of the proceedings, shall apply to extradition cases,
and the hearing shall be conducted in such a manner as to arrive at a fair and
speedy disposition of the case.
….
section 20. Provisional Arrest.—​(a) In case of urgency, the requesting state
may, pursuant to the relevant treaty or convention and while the same remains
in force; request for the provisional arrest of the accused pending receipt of
the request for extradition made in accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of the
National Bureau of Investigation, Manila, either through the diplomatic
channels or direct by post or telegraph.
….

B Wright v. Court of Appeals (1994)20

[In 1993, Australia requested the Philippines to extradite Paul Joseph Wright
under the Philippine-​Australia Extradition Treaty, to face charges of Obtaining
Property by Deception, Attempting to Obtain Property by Deception, and
Perjury. Wright challenges the validity of the retroactive application of the

20 g.r. No. 113213, 15 August 1994.

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Extradition 351

Extradition Treaty contrary to the constitutional guarantee against ex post

facto laws.]
A paramount principle of the law of extradition provides that a State may
not surrender any individual for any offense not included in a treaty of extra-
dition. This principle arises from the reality of extradition as a derogation of
sovereignty. Extradition is an intrusion into the territorial integrity of the host
State and a delimitation of the sovereign power of the State within its own
territory. The act of extraditing amounts to a “delivery by the State of a per-
son accused or convicted of a crime, to another State within whose territorial
jurisdiction, actual or constructive, it was committed and which asks for his
surrender with a view to execute justice.” ….
The principles of international law recognize no right of extradition apart
from that arising from treaty. Pursuant to these principles, States enter into
treaties of extradition principally for the purpose of bringing fugitives of jus-
tice within the ambit of their laws, under conventions recognizing the right
of nations to mutually agree to surrender individuals within their jurisdiction
and control, and for the purpose of enforcing their respective municipal laws.
Since punishment of fugitive criminals is dependent mainly on the willing-
ness of host State to apprehend them and revert the to the State where their
offenses were committed, jurisdiction over such fugitives and subsequent
enforcement of penal laws can be effectively accomplished only by agreement
between States through treaties of extradition.
The [Philippine-​Australia Extradition] Treaty adopts a “non-​list, double
criminality approach” which provides for broader coverage of extraditable
offenses between the two countries and (which) embraces crimes punishable
by imprisonment for at least one (1) year. Additionally, the Treaty allows extra-
dition for crimes committed prior to the treaty’s date of effectivity, provided
that these crimes were in the statute books of the requesting State at the time
of their commission.
….
In defining the extraditable offenses, the Treaty includes all offenses “pun-
ishable under the Laws of both Contracting States by imprisonment for a
period of at least one (1) year, or by a more severe penalty.” For the purpose of
the definition, the Treaty states that:
a) an offense shall be an extraditable offense whether or not the laws of the
Contracting States place the offense within the same category or denom-
inate the offense by the same terminology;
b) the totality of the acts or omissions alleged against the person whose
extradition is requested shall be taken into account in determining the
constituent elements of the offense.

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….
May the extradition of the petitioner who is wanted for prosecution by the
government of Australia be granted in spite of the fact that the offenses for
which the petitioner is sought in his country were allegedly committed prior
to the date of effectivity of the Treaty.
….
…. Article 2(4) of the Treaty unequivocally provides that:
4. Extradition may be granted pursuant to provisions of this Treaty
irrespective of when the offense in relation to which extradition is
requested was committed, provided that:
(a) it was an offense in the Requesting State at the time of the acts
or omissions constituting the offense;
(b) the acts or omissions alleged would, if they had taken place in
the Territory of the Requested State at the time of the making of
the request for extradition, have constituted an offense against
the laws in force in that state.
Thus, the offenses for which petitioner is sought by his government are clearly
extraditable under Article 2 of the Treaty. They were offenses in the Requesting
State at the time they were committed, and, irrespective of the time they were
committed, they fall under the panoply of the Extradition Treaty’s provisions,
specifically, Article 2 paragraph 4, quoted above.
Does the Treaty’s retroactive application violate the Constitutional prohibi-
tion against ex post facto laws? Early commentators understood ex post facto
laws to include all laws of retrospective application, whether civil or criminal.
However, Chief Justice Salmon P. Chase, citing Blackstone, The Federalist and
other early U.S. state constitutions in Calder vs. Bull concluded that the con-
cept was limited only to penal and criminal statutes. As conceived under our
Constitution, ex post facto laws are 1) statutes that make an act punishable as a
crime when such act was not an offense when committed; 2) laws which, while
not creating new offenses, aggravate the seriousness of a crime; 3) statutes
which prescribe greater punishment for a crime already committed; or, 4) laws
which alter the rules of evidence so as to make it substantially easier to convict
a defendant. “Applying the constitutional principle, the (Court) has held that
the prohibition applies only to criminal legislation which affects the substan-
tial rights of the accused.” This being so, there is absolutely no merit in peti-
tioner’s contention that the ruling of the lower court sustaining the Treaty’s
retroactive application with respect to offenses committed prior to the Treaty’s
coming into force and effect, violates the Constitutional prohibition against ex
post facto laws. As the Court of Appeals correctly concluded, the Treaty is nei-
ther a piece of criminal legislation nor a criminal procedural statute. “It merely

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Extradition 353

provides for the extradition of persons wanted for prosecution of an offense or

a crime which offense or crime was already committed or consummated at the
time the treaty was ratified.”

C The Jimenez Cases

1 Secretary of Justice v. Lantion (2000)21
[In 1994, the Philippines and the United States signed an Extradition Treaty. In
1999, the United States requested the extradition of Mark Jimenez, a business
adviser of President Joseph Estrada. While the extradition request was being
evaluated by the Department of Justice (doj), Jimenez requested copies of
the official extradition request and supporting documents. The doj refused,
saying such request was premature. The Court, by a vote of 9-​6, ordered the
Secretary of Justice to furnish Jimenez with copies of the extradition request
and other documents.]
The Extradition Law does not specifically indicate whether the extradition
proceeding is criminal, civil, or a special proceeding. ….
The evaluation process, just like the extradition proceedings proper,
belongs to a class by itself. It is sui generis. It is not a criminal investigation, but
it is also erroneous to say that it is purely an exercise of ministerial functions.
At such stage, the executive authority has the power: (a) to make a techni-
cal assessment of the completeness and sufficiency of the extradition papers;
(b) to outrightly deny the request if on its face and on the face of the sup-
porting documents the crimes indicated are not extraditable; and (c) to make
a determination whether or not the request is politically motivated, or that
the offense is a military one which is not punishable under non-​military penal
legislation [citations omitted]. Hence, said process may be characterized as an
investigative or inquisitorial process in contrast to a proceeding conducted in
the exercise of an administrative body’s quasi-​judicial power.
….
It is to be noted, however, that in contrast to ordinary investigations, the
evaluation procedure is characterized by certain peculiarities. Primarily, it sets
into motion the wheels of the extradition process. Ultimately, it may result in
the deprivation of liberty of the prospective extraditee. This deprivation can
be effected at two stages: First, the provisional arrest of the prospective extra-
ditee pending the submission of the request. …. Second, the temporary arrest
of the prospective extraditee during the pendency of the extradition petition
in court [citation omitted].

21 g.r. No. 139465, 18 January 2000.

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Clearly, there is an impending threat to a prospective extraditee’s liberty as

early as during the evaluation stage. It is not only an imagined threat to his
liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation
process is akin to an administrative agency conducting an investigative pro-
ceeding, the consequences of which are essentially criminal since such tech-
nical assessment sets off or commences the procedure for, and ultimately, the
deprivation of liberty of a prospective extraditee. As described by petitioner
himself, this is a “tool” for criminal law enforcement [citation omitted]. In
essence, therefore, the evaluation process partakes of the nature of a criminal
investigation.
….
We now pass upon the final issue pertinent to the subject matter of the
instant controversy: Would private respondent’s entitlement to notice and
hearing during the evaluation stage of the proceedings constitute a breach
of the legal duties of the Philippine Government under the rp-​Extradition
Treaty? Assuming the answer is in the affirmative, is there really a conflict
between the treaty and the due process clause in the Constitution?
….
The rule of pacta sunt servanda, one of the oldest and most fundamental
maxims of international law, requires the parties to a treaty to keep their agree-
ment therein in good faith. The observance of our country’s legal duties under a
treaty is also compelled by [the Incorporation Clause under the Constitution].
Under the doctrine of incorporation, rules of international law form part of the
law of the land and no further legislative action is needed to make such rules
applicable in the domestic sphere [citation omitted].
The doctrine of incorporation is applied whenever municipal tribunals (or
local courts) are confronted with situations in which there appears to be a con-
flict between a rule of international law and the provisions of the constitution
or statute of the local state. …. The fact that international law has been made
part of the law of the land does not pertain to or imply the primacy of inter-
national law over national or municipal law in the municipal sphere. The doc-
trine of incorporation, as applied in most countries, decrees that rules of inter-
national law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogat priori
takes effect—​a treaty may repeal a statute and a statute may repeal a treaty.
In states where the constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if
they are in conflict with the constitution [citation omitted].

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In the case at bar, is there really a conflict between international law and
municipal or national law? En contrario, these two components of the law
of the land are not pitted against each other. There is no occasion to choose
which of the two should be upheld.
Instead, we see a void in the provisions of the rp-​u s Extradition Treaty, as
implemented by Presidential Decree No. 1069, as regards the basic due process
rights of a prospective extraditee at the evaluation stage of extradition pro-
ceedings. From the procedures earlier abstracted, after the filing of the extra-
dition petition and during the judicial determination of the propriety of extra-
dition, the rights of notice and hearing are clearly granted to the prospective
extraditee. However, prior thereto, the law is silent as to these rights. Reference
to the U.S. extradition procedures also manifests this silence.
….
In the absence of a law or principle of law, we must apply the rules of fair
play. An application of the basic twin due process rights of notice and hearing
will not go against the treaty or the implementing law. Neither the Treaty nor
the Extradition Law precludes these rights from a prospective extraditee. ….

2 Secretary of Justice v. Lantion, on Motion for Reconsideration

(2000)22
[Ten months after the first decision, the Supreme Court reversed itself, likewise
by a vote of 9-​6, with no change in the composition of the bench but with 3
justices changing their vote.]
The jugular issue is whether or not the private respondent is entitled to
the due process right to notice and hearing during the evaluation stage of the
extradition process.
We now hold that private respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process.
….
First, ….[t]‌here is no provision in the rp-​u s Extradition Treaty and in p.d.
No. 1069 which gives an extraditee the right to demand from the petitioner
Secretary of Justice copies of the extradition request from the US government
and its supporting documents and to comment thereon while the request is
still undergoing evaluation. We cannot write a provision in the treaty giving
private respondent that right where there is none. It is well-​settled that a
“court cannot alter, amend, or add to a treaty by the insertion of any clause,
small or great, or dispense with any of its conditions and requirements or take

22 g.r. No. 139465, Resolution, 17 October 2000.

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away any qualification, or integral part of any stipulation, upon any motion of
equity, or general convenience, or substantial justice.”
Second. All treaties, including the rp-​u s Extradition Treaty, should be inter-
preted in light of their intent. Nothing less than the Vienna Convention on the
Law of Treaties to which the Philippines is a signatory provides that “a treaty
shall be interpreted in good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in light of its object and
purpose.” ….
….
It ought to follow that the rp-​u s Extradition Treaty calls for an interpreta-
tion that will minimize if not prevent the escape of extraditees from the long
arm of the law and expedite their trial. …. The fear of the petitioner Secretary
of Justice that the demanded notice is equivalent to a notice to flee must be
deeply rooted on the experience of the executive branch of our government.
As it comes from the branch of our government in charge of the faithful execu-
tion of our laws, it deserves the careful consideration of this Court. In addition,
it cannot be gainsaid that private respondent’s demand for advance notice can
delay the summary process of executive evaluation of the extradition request
and its accompanying papers. ….
Fourth. Private respondent, however, peddles the postulate that he must be
afforded the right to notice and hearing as required by our Constitution. He
buttresses his position by likening an extradition proceeding to a criminal pro-
ceeding and the evaluation stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis. It is not a
criminal proceeding which will call into operation all the rights of an accused
as guaranteed by the Bill of Rights. To begin with, the process of extradition
does not involve the determination of the guilt or innocence of an accused.
His guilt or innocence will be adjudged in the court of the state where he will
be extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an extra-
dite especially by one whose extradition papers are still undergoing evalua-
tion. ….
As an extradition proceeding is not criminal in character and the evaluation
stage in an extradition proceeding is not akin to a preliminary investigation,
the due process safeguards in the latter do not necessarily apply to the former.
…. The concept of due process is flexible for “not all situations calling for pro-
cedural safeguards call for the same kind of procedure.”

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3 Government of the United States v. Purganan (2002)23

[By 2002, the trial court had already proceeded to hear the petition to extradite
Jimenez. The United States, as the requesting state, now objects to the trial
court granting him bail.]
This Petition is really a sequel to g.r. No. 139465 entitled Secretary of Justice
v. Ralph C. Lantion.
….
Finding no more legal obstacle, the Government of the United States of
America, represented by the Philippine doj, filed with the [Regional Trial
Court] on May 18, 2001, the appropriate Petition for Extradition ….
….
In sum, the substantive questions that this Court will address are: (1) whether
Jimenez is entitled to notice and hearing before a warrant for his arrest can be
issued, and (2) whether he is entitled to bail and to provisional liberty while
the extradition proceedings are pending.
….
Third, as pointed out in Secretary of Justice v. Lantion, extradition proceed-
ings are not criminal in nature. In criminal proceedings, the constitutional
rights of the accused are at fore; in extradition which is sui generis—​in a class
by itself—​they are not.
….
Given the foregoing, it is evident that the extradition court is not called
upon to ascertain the guilt or the innocence of the person sought to be extra-
dited. Such determination during the extradition proceedings will only result
in needless duplication and delay. Extradition is merely a measure of interna-
tional judicial assistance through which a person charged with or convicted
of a crime is restored to a jurisdiction with the best claim to try that person.
It is not part of the function of the assisting authorities to enter into ques-
tions that are the prerogative of that jurisdiction. The ultimate purpose of
extradition proceedings in court is only to determine whether the extradition
request complies with the Extradition Treaty, and whether the person sought
is extraditable.
….
Verily, we are bound by pacta sunt servanda to comply in good faith with
our obligations under the Treaty. This principle requires that we deliver the
accused to the requesting country if the conditions precedent to extradi-
tion, as set forth in the Treaty, are satisfied. In other words, “[t]‌he demanding

23 g.r. No. 148571, 24 September 2002.

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government, where it has done all that the treaty and the law require it to do, is
entitled to the delivery of the accused on the issue of the proper warrant, and
the other government is under obligation to make the surrender.” Accordingly,
the Philippines must be ready and in a position to deliver the accused, should
it be found proper.
….
second substantive issue: is respondent entitled to bail?
….
Respondent Mark B. Jimenez maintains that this constitutional provision
secures the right to bail of all persons, including those sought to be extradited.
Supposedly, the only exceptions are the ones charged with offenses punishable
with reclusion perpetua, when evidence of guilt is strong. ….
On the other hand, petitioner claims that there is no provision in the
Philippine Constitution granting the right to bail to a person who is the subject
of an extradition request and arrest warrant.
extradition different from ordinary criminal proceedings
We agree with petitioner. As suggested by the use of the word “conviction”
[in] the constitutional provision on bail [, it] applies only when a person has
been arrested and detained for violation of Philippine criminal laws. It does
not apply to extradition proceedings, because extradition courts do not render
judgments of conviction or acquittal.
Moreover, the constitutional right to bail “flows from the presumption of
innocence in favor of every accused who should not be subjected to the loss
of freedom as thereafter he would be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt.” It follows that the constitutional provision
on bail will not apply to a case like extradition, where the presumption of inno-
cence is not at issue.
….
[However,] bail may be applied for and granted as an exception, only upon
a clear and convincing showing (1) that, once granted bail, the applicant will
not be a flight risk or a danger to the community; and (2) that there exist spe-
cial, humanitarian and compelling circumstances including, as a matter of rec-
iprocity, those cited by the highest court in the requesting state when it grants
provisional liberty in extradition cases therein.
Since this exception has no express or specific statutory basis, and since it
is derived essentially from general principles of justice and fairness, the appli-
cant bears the burden of proving the above two-​tiered requirement with clar-
ity, precision and emphatic forcefulness.

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4 Government of the United States v. Purganan, on Motion for

Reconsideration, Vitug, J., Dissenting Opinion (2002)24
[The Court denied the Respondent’s Motion for Reconsideration, and this time
affirmed its earlier decision. Justice Jose Vitug dissented, maintaining his dis-
sent to the original decision.]
Extradition is an exceptional measure running against the tra-
dition of asylum
International Extradition is a process under which a sovereign state surren-
ders to another sovereign state a person accused in a case or a fugitive offender
in the latter state. [He proceeds to trace extradition practice to ancient civili-
zations.] But while, historically, extradition was for the purpose of obtaining
the surrender of political offenders, the trend, starting in the 19th century, has
been to refuse the extradition of a person sought for political crimes. This shift
can be explained partly to the emergence of humanitarian international law
which has given impetus to a new legal status of one of the participants, i.e.,
the individual, thus placing some limitations on the power of the respective
sovereigns that did not historically exist.
….
A treaty being the primary source of the obligation to extra-
dite has given occasion to a lack of cohesive and uniform stan-
dards on extradition
Not finding basis in customary law and failing to qualify as a generally-​
accepted principles of international law, the present state of international
law on the return of fugitives for trial is hypothesized by Brownlie: “With the
exception of alleged crimes under international law, surrender of an alleged
criminal cannot be demanded of right in the absence of treaty.” The result has
been a failure of consistency in extradition practice among states. Indeed, the
reality is that there is to date no uniform standard applicable to all states. d.w.
Gregg attributes this lack of “universal” and cohesive standards in the extradi-
tion process to the adoption of a variety of procedures which can be as diverse
as the contracting states would want them to be. In formulating their extradi-
tion treaties, contracting states insert particular provisions and stipulations to
address specific particularities in their relationships. [Justice Vitug proceeds to
discuss the different extradition practices, e.g., as regards double criminality,
extradition of one’s own nationals, and varying levels of fairness guarantees.]
Fenwick, another recognized authority in international law, concludes—​”Since
extradition is effected as the result of the provisions of treaties entered into by the

24 g.r. No. 148571, Resolution, 17 December 2002.

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nations two by two, it is impossible to formulate any general rule of law upon the
subject.”
….
extradition proceedings are part of the criminal process
Verily, an extradition proceeding before the extradition court forms part of the
criminal process. It is predicated on criminal indictment of an extraditee. Like
any criminal proceeding, it ultimately ends in either conviction or acquittal
for the potential extraditee. Except for the reality that it involves two sovereign
states, at least, extradition proceedings before the extradition court can be lik-
ened to the preliminary investigation conducted before an investigating fiscal.
Like the investigating fiscal, the judge acting in an extradition proceeding does
not rule on the issue of guilt or innocence of the potential extraditee, his main
concern being the determination of whether a prima facie case exists against
the potential extraditee. Stated otherwise, both proceedings are an inquiry
into whether a person should stand trial. The right to a preliminary investi-
gation is a component part of due process in the criminal justice system. ….
Thus, the rules governing the extradition process should not be viewed as existing
in a vacuum, totally divergent and isolated from the entire criminal process of
which it, in fact, forms part. Indubitably, bail is available in this country even in
the preliminary investigation stage. The eligibility for bail exists once the person is
placed under legal custody regardless of whether a complaint or information has
been filed or yet to be filed in court against him.

D The Muñoz Cases

1 Secretary of Justice v. Muñoz (2000)25
[Hong Kong invoked the Philippines-​Hong Kong Extradition Agreement, and
asked for the extradition of Juan Antonio Muñoz to face charges for “accepting
an advantage as an agent” under its Prevention of Bribery Ordinance and for
conspiracy to defraud. The trial court in Manila issued a warrant for his arrest,
which was nullified by the Court of Appeals. The Supreme Court reversed the
Court of Appeals, and affirmed the validity of the warrant of arrest.]
First. There was urgency for the provisional arrest of the respondent. Section
20(a) of p.d. No. 1069 reads as follows:

Provisional Arrest—​(a) In case of urgency, the requesting state may, pur-

suant to the relevant treaty or convention and while the same remains in
force, request for the provisional arrest of the accused, pending receipt

25 g.r. No. 140520, 18 December 2000.

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of the request for extradition made in accordance with Section 4 of this

Decree;

and Article 11 of the Extradition Agreement between the Philippines and Hong
Kong provides in part that:
(1) In urgent cases, the person sought may, in accordance with the law
of the requested Party, be provisionally arrested on the application
of the requesting Party….
Nothing in existing treaties or Philippine legislation defines the meaning of
“urgency” as used in the context of a request for provisional arrest. Using rea-
sonable standards of interpretation, however, we believe that urgency con-
notes such conditions relating to the nature of the offense charged and the
personality of the prospective extraditee which would make him susceptible
to the inclination to flee or escape from the jurisdiction if he were to learn
about the impending request for his extradition and/​or likely to destroy the
evidence pertinent to the said request or his eventual prosecution and without
which the latter could not proceed.
We find that such conditions exist in respondent’s case.
….
Third. The request for provisional arrest of respondent and its accompany-
ing documents are valid despite lack of authentication.
….
The language of the [Section 20(d) of p.d. No. 1069 and Article 11(3) of the
rp-​Hong Kong Extradition Agreement] is clear. There is no requirement for
the authentication of a request for provisional arrest and its accompanying
documents.
….
The process of preparing a formal request for extradition and its accom-
panying documents, and transmitting them through diplomatic channels, is
not only time-​consuming but also leakage-​prone. There is naturally a great
likelihood of flight by criminals who get an intimation of the pending request
for their extradition. To solve this problem, speedier initial steps in the form
of treaty stipulations for provisional arrest were formulated. Thus, it is an
accepted practice for the requesting state to rush its request in the form of a
telex or diplomatic cable, the practicality of the use of which is conceded. Even
our own Extradition Law (p.d. No. 1069) allows the transmission of a request
for provisional arrest via telegraph. In the advent of modern technology, the
telegraph or cable have been conveniently replaced by the facsimile machine.
Therefore, the transmission by the Hong Kong doj of the request for respon-
dent’s provisional arrest and the accompanying documents, namely, a copy of

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the warrant of arrest against respondent, a summary of the facts of the case
against him, particulars of his birth and address, a statement of the intention
to request his provisional arrest and the reason therefor, by fax machine, more
than serves this purpose of expediency.

2 Government of Hong Kong s.a.r. v. Olalia (2007)26

[This sequel pertains to Muñoz’s application for bail, which the trial court ini-
tially denied, and then granted, after the original judge inhibited himself. The
Supreme Court “re-​examines” its Purganan ruling, supra, that the right to bail
does not apply to extradition. A unanimous Court, including two justices who
took the opposite view in Purganan, held that treaty obligations cannot dimin-
ish a “potential extraditee’s rights to life, liberty, and due process.”]
Jurisprudence on extradition is but in its infancy in this jurisdiction.
Nonetheless, this is not the first time that this Court has an occasion to resolve
the question of whether a prospective extraditee may be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan,
[supra], this Court, speaking through then Associate Justice Artemio v.
Panganiban, later Chief Justice, held that the constitutional provision on bail
does not apply to extradition proceedings. It is “available only in criminal pro-
ceedings,” ….
….
At first glance, the above ruling applies squarely to private respondent’s case.
However, this Court cannot ignore the following trends in international law: (1)
the growing importance of the individual person in public international law
who, in the 20th century, has gradually attained global recognition; (2) the
higher value now being given to human rights in the international sphere;
(3) the corresponding duty of countries to observe these universal human
rights in fulfilling their treaty obligations; and (4) the duty of this Court to bal-
ance the rights of the individual under our fundamental law, on one hand, and
the law on extradition, on the other.
The modern trend in public international law is the primacy placed on the worth
of the individual person and the sanctity of human rights. Slowly, the recogni-
tion that the individual person may properly be a subject of international law
is now taking root. The vulnerable doctrine that the subjects of international
law are limited only to states was dramatically eroded towards the second half
of the past century. For one, the Nuremberg and Tokyo trials after World War
ii resulted in the unprecedented spectacle of individual defendants for acts

26 g.r. No. 153675, 19 April 2007.

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Extradition 363

characterized as violations of the laws of war, crimes against peace, and crimes
against humanity. Recently, under the Nuremberg principle, Serbian leaders
have been persecuted for war crimes and crimes against humanity committed
in the former Yugoslavia. These significant events show that the individual per-
son is now a valid subject of international law.
On a more positive note, also after World War ii, both international orga-
nizations and states gave recognition and importance to human rights. Thus,
on December 10, 1948, the United Nations General Assembly adopted the
Universal Declaration of Human Rights in which the right to life, liberty and
all the other fundamental rights of every person were proclaimed. While not
a treaty, the principles contained in the said Declaration are now recognized as
customarily binding upon the members of the international community. Thus, in
Mejoff v. Director of Prisons, this Court, in granting bail to a prospective deportee,
held that under the Constitution, the principles set forth in that Declaration are
part of the law of the land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the Philippines
signed and ratified. Fundamental among the rights enshrined therein are the
rights of every person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations, com-
mitted to uphold the fundamental human rights as well as value the worth and
dignity of every person. This commitment is enshrined in Section ii, Article
ii of our Constitution which provides: “The State values the dignity of every
human person and guarantees full respect for human rights.” The Philippines,
therefore, has the responsibility of protecting and promoting the right of every
person to liberty and due process, ensuring that those detained or arrested can
participate in the proceedings before a court, to enable it to decide without
delay on the legality of the detention and order their release if justified. In
other words, the Philippine authorities are under obligation to make available
to every person under detention such remedies which safeguard their funda-
mental right to liberty. These remedies include the right to be admitted to bail.
While this Court in Purganan limited the exercise of the right to bail to crim-
inal proceedings, however, in light of the various international treaties giving
recognition and protection to human rights, particularly the right to life and
liberty, a reexamination of this Court’s ruling in Purganan is in order.
First, we note that the exercise of the State’s power to deprive an individual
of his liberty is not necessarily limited to criminal proceedings. Respondents in
administrative proceedings, such as deportation and quarantine, have likewise
been detained.
Second, to limit bail to criminal proceedings would be to close our eyes
to our jurisprudential history. Philippine jurisprudence has not limited the

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exercise of the right to bail to criminal proceedings only. This Court has admit-
ted to bail persons who are not involved in criminal proceedings. In fact, bail
has been allowed in this jurisdiction to persons in detention during the pendency
of administrative proceedings, taking into cognizance the obligation of the
Philippines under international conventions to uphold human rights.
….
In Mejoff v. Director of Prisons and Chirskoff v. Commission of Immigration,
this Court ruled that foreign nationals against whom no formal criminal
charges have been filed may be released on bail pending the finality of an
order of deportation. As previously stated, the Court in Mejoff relied upon
the Universal declaration of Human Rights in sustaining the detainee’s right
to bail.
If bail can be granted in deportation cases, we see no justification why it
should not also be allowed in extradition cases. Likewise, considering that the
Universal Declaration of Human Rights applies to deportation cases, there is no
reason why it cannot be invoked in extradition cases. After all, both are adminis-
trative proceedings where the innocence or guilt of the person detained is not
in issue.
….
The time-​honored principle of pacta sunt servanda demands that the
Philippines honor its obligations under the Extradition Treaty it entered into
with the Hong Kong Special Administrative Region. Failure to comply with
these obligations is a setback in our foreign relations and defeats the purpose
of extradition. However, it does not necessarily mean that in keeping with its
treaty obligations, the Philippines should diminish a potential extraditee’s
rights to life, liberty, and due process. More so, where these rights are guaran-
teed, not only by our Constitution, but also by international conventions, to
which the Philippines is a party. We should not, therefore, deprive an extradi-
tee of his right to apply for bail, provided that a certain standard for the grant
is satisfactorily met.

3 Government of Hong Kong s.a.r. v. Muñoz (2016)27

This case is the third in the trilogy of cases that started with the 2000 case of
Cuevas v. Muñoz, which dealt with respondent Juan Antonio Muñoz’s provi-
sional arrest as an extraditee, and the 2007 case of Government of Hong Kong
Special Administrative Region v. Olalia, Jr., which resolved the question of
Muñoz’s right to bail as a potential extraditee. ….

27 g.r. No. 207342, 16 August 2016.

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….
[After the trial court granted the petition to extradite, the Court of Appeals
ruled] that the crime of accepting an advantage as an agent should be
excluded from the charges for which he would be tried in Hong Kong due to
non-​compliance with the double criminality rule.
….
In its decision promulgated on August 30, 2012, the ca opined that although
the People’s Republic of China resumed the exercise of jurisdiction over the
hksar, Article 96 of the latter’s Basic Law still empowered it to enter into
international agreements in its own name, including extradition treaties; that
despite the exception made in the Joint Declaration of the [United Kingdom
and China] on the Question of Hong Kong to the effect that the hksar [Hong
Kong Special Administrative Region] would enjoy a high degree of autonomy,
except in foreign and defense affairs that were the responsibilities of the Central
People’s Government, there was a status quo as regards the laws currently in
force in Hong Kong; that Article 153 of the Basic Law explicitly provided that
international agreements to which the People’s Republic of China was not a
party but which were implemented in Hong Kong could continue to be imple-
mented in the hksar; that an Exchange of Notes between the Governments
of China and the Philippines confirmed the continuous enforceability of the
rp-​h k Agreement; ….
….
The sole issue raised by the hksar relates to the propriety of the ca’s con-
clusion that the crime of accepting an advantage as an agent did not comply
with the double criminality rule.
ruling of the court
Upon thorough consideration, we deny the petition for review.
Extradition … is not part of customary international law, although the duty
to extradite exists only for some international crimes. Thus, a state must extra-
dite only when obliged by treaty to do so. …. Absent the treaty, the duty to sur-
render a person who has sought asylum within its boundaries does not inhere
in the state, which, if it so wishes, can extend to him a refuge and protection
even from the state that he has fled. Indeed, in granting him asylum, the state
commits no breach of international law. But by concluding the treaty, the asy-
lum state imposes limitations on itself, because it thereby agrees to do some-
thing it was free not to do. The extradition treaty creates the reciprocal obli-
gation to surrender persons from the requested state’s jurisdiction charged or
convicted of certain crimes committed within the requesting state’s territory,
and is of the same level as a law passed by the Legislatures of the respective
parties.

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….
The rp-​h k Agreement is still in full force and effect as an extradition treaty.
The procedures therein delineated regulate the rights and obligations of the
Republic of the Philippines and the hksar under the treaty in the handling of
extradition requests.
….
However, it was as to the [double criminality requirement] that the ca took
exception as not having been established. Although the crime of conspiracy
to defraud was included among the offenses covered by the rp-​Hong Kong
Agreement, and the rtc and the ca have agreed that the crime was analo-
gous to the felony of estafa through false pretense as defined and penalized
under Article 315 (2) of the Revised Penal Code, it was disputed whether or not
the other crime of accepting an advantage as an agent was also punished as a
crime in the Philippines. As such, the applicability of the double criminality
rule became the issue.
Under the double criminality rule, the extraditable offense must be criminal
under the laws of both the requesting and the requested states. This simply
means that the requested state comes under no obligation to surrender the
person if its laws do not regard the conduct covered by the request for extradi-
tion as criminal.
The hksar defines the crime of accepting an advantage as an agent under
Section 9 (1) (a) of the Prevention of Bribery Ordinance (pobo), Cap. 201,
to wit:

Section 9. Corrupt transactions with agents.—​

(1) Any agent who, without lawful authority or reasonable excuse, solic-
its or accepts any advantage as an inducement to or reward for or
otherwise on account of his—​
(a) doing or forbearing to do, or having done or forborne to do, any
act in relation to his principal’s affairs or business; or
….
A perusal of the decision of the rtc and the original decision of the ca
show that said courts determined that the crime of accepting an advantage
as an agent was analogous to the crime of corrupt practices of public officers
as defined under Section 3 of Republic Act No. 3019 (Anti-​Graft and Corrupt
Practices Act). In its assailed amended decision, however, the ca reversed
itself, and agreed with Muñoz to the effect that Section 9 (1) (a) of the pobo
referred only to private individuals, not to persons belonging to the public sec-
tor. ….

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Based on the foregoing, the ca ultimately concluded that the crime of

accepting an advantage as an agent did not have an equivalent in this jurisdic-
tion considering that when the unauthorized giving and receiving of benefits
happened in the private sector, the same was not a crime because there was no
law that defined and punished such act as criminal in this jurisdiction.
….
Accordingly, the crime of accepting an advantage as an agent must be
dropped from the request for extradition. Conformably with the principle of
specialty embodied in Article 17 of the rp-​h k Agreement, Muñoz should be
proceeded against only for the seven counts of conspiracy to defraud. As such,
the hksar shall hereafter arrange for Muñoz’s surrender within the period
provided under Article 15 of the rp-​h k Agreement.

ii The Philippines as the Requesting State: Philippine Request for the

Extradition of Rodolfo Pacificador (2002)28

[The Philippines requested Canada to extradite Rodolfo Pacificador to stand

trial for the killing of the former Provincial Governor of Antique, Evelio Javier,
in the aftermath of the 1986 presidential elections that eventually led to the
downfall of Marcos and paved the way for the restoration of democracy under
Corazon Aquino. Javier was a stalwart of Aquino while Pacificador’s father
Arturo, likewise charged for the killing of Javier, was a close ally of Marcos.29
In 1987, Rodolfo Pacificador entered Canada and asked to be recognized
as a refugee. In 1990, while that application was pending, the Philippines
and Canada signed an Extradition Treaty. In 1991, Pacificador was arrested in
Canada upon the Philippine extradition request in relation to the charges for
murder and attempted murder. In 1992, he was ordered committed for extradi-
tion. In 1993, a review of the committal order was refused and affirmed by the
Ontario Court of Appeal. The Supreme Court of Canada denied leave to appeal.
In 1996, the Minister of Justice signed a warrant of surrender upon assurances
by the Philippines that, one, the death penalty would not be imposed or car-
ried out, and two, that the trial will be completed within one year following
Pacificador’s return.

28 Canada (Minister of Justice) v. Pacificador, 162 o.a.c. 299 (ca, 2002). [emphases added].
29 Nestor P. Burgos Jr., Pacificador, once most powerful in Antique, dead, Philippine
Daily Inquirer, 12 January 2015, available at https://​newsinfo.inquirer.net/​663904/​
pacificador-​once-​most-​powerful-​in-​antique-​dead.

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In 2004, the elder Pacificador would be acquitted in the murder case in the
Philippines, while some of his guards would be convicted.30
In this case, Pacificador challenges that warrant of surrender, and in the
alternative, asks for a stay pending review of his refugee application. In 2007,
the Ontario Court of Appeal would find for Pacificador, and set aside the war-
rant of surrender. “Looking at all that had transpired in the Philippine courts,
surrender would be ‘simply unacceptable’ given that the manner in which the
prosecution was conducted over the years ‘shocks the conscience.’ ”31
On the other hand, Pacificador’s refugee application would be denied in
2006 by the Immigration and Refugee Board’s Refugee Protection Division (the
Board) which found Pacificador not qualified as either a Convention refugee
or a person in need of protection. In 2007, however, on appeal, the Federal
Court took into account the “numerous shortcomings of the Philippine judi-
cial system and to the serious violations of the fundamental rights of the other
accused that had marred their trial”; found unreasonable the Board’s decision
that Pacificador will not face “lengthy pre-​trial detention or torture”, taking
into account that the Philippine “judicial system was unable to ensure expedi-
tious trials” considering the “slow judicial process, lengthy pre-​trial detention.”
Accordingly, the denial of refugee status was set aside and remanded to a dif-
ferent panel of the Board for a new determination.32]
[1]‌ Sharpe, j.a.: The appellant is wanted to stand trial in the Republic of
the Philippines for offences arising out of the 1986 assassination of a promi-
nent political figure. The appeal arises from lengthy and protracted extradition
proceedings, at the conclusion of which the applications judge dismissed the
appellant’s application to quash a warrant of surrender to the Philippines. The
appellant has argued throughout that the evidence against him is the prod-
uct of political manipulation, that others charged with the same offences
have been subjected to several years of harsh detention without trial in the
Philippines, and that the Philippines’ justice system has failed to respect fun-
damental rights in this case. Before this court, the appellant advanced two
main grounds of appeal. First, he submitted that his surrender for extradition
would violate his rights under s. 7 of the Charter. Second, he submitted that he
cannot be lawfully surrendered for extradition until his claim for refugee status
has been finally determined.

30 Benjie Villa, Pacificador acquitted in Javier’s murder, Philippine Star, 13

October 2004, available at: https://​www.philstar.com/​nation/​2004/​10/​13/​266040/​
pacificador-​acquitted-​javier146s-​murder.
31 Case Syllabus, Canada v. Pacificador, supra note 28.
32 Pacificador v. Can. (m.c.i.) (2007), 318 f.t.r. 249 (fc).

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facts
[2]‌On February 11, 1986, during the course of an election called by President
Ferdinand Marcos, Evelio Javier was assassinated outside the capitol building
in San Jose, the Philippines. Javier was a former provincial governor in the
Philippines and a prominent supporter of Corazon Aquino, the opposition
candidate of President Marcos.
[3]‌Witnesses at the scene saw armed men approach the capitol building in
two jeeps. The men from the first jeep got out, fired at Javier, followed him into
a house and killed him. Bystanders were injured in the gunfire. Witnesses iden-
tified two known associates of the appellant’s family, John Paloy and Vicente
Vegafria, as being among the assassins. No witness saw the appellant at the
scene of the killing.
[4]‌[Other witnesses testified that the appellant was seen with the assassins
shortly after the killing. One witness later recanted his testimony.]
[5]‌In February 1986, in the aftermath of a post-​election revolution, the
appellant and his father fled from the Philippines. The appellant’s father,
Arturo Pacificador, was a well-​known supporter of Marcos. In October 1986,
the appellant, his father and several other men were charged with offences
arising out of the February 11, 1986 assassination. The appellant was charged
with one count of murder, one count of frustrated murder and four counts of
attempted murder.
….
[7]‌On October 8, 1987, the appellant entered Canada and claimed status
as a Convention refugee. In late 1989, Canada and the Philippines negotiated
an extradition treaty, which came into force on November 12, 1990. Securing
the appellant’s return to the Philippines to face trial for Javier’s murder was a
significant factor motivating the treaty.
[8]‌Over several days between November 1990 and April 24, 1991, a hearing
was conducted before an adjudicator from the Employment and Immigration
Commission and a member of the Immigration and Refugee Board (the
“Board”) to determine whether there was a credible basis on which the Refugee
Division of the Board might determine that the appellant was a Convention
Refugee. The appellant testified at length. The essence of his claim was that the
Philippines’ prosecution against him was a means of persecution. The Board
member found that there was no credible basis for the appellant’s refugee
claim. However, the adjudicator found that there was a credible basis for his
claim, with the result that the claim was required to proceed to a full hearing
before the Board.
[9]‌On November 12, 1991, the appellant was arrested on a warrant of appre-
hension for extradition. On October 5, 1992, Watt, J., ordered his committal for

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extradition. On February 5, 1993, German, J., dismissed the appellant’s appli-

cation for habeas corpus. On July 29, 1993, this court dismissed the appellant’s
appeal. On April 28, 1994, the Supreme Court of Canada refused leave to appeal.
[10] The issue of the appellant’s surrender then went before the Minister
of Justice, Allan Rock. The appellant urged the Minister to refuse to surrender
him to the Philippines on the ground that his surrender would violate his rights
under s. 733 of the Charter. The appellant submitted that the record demon-
strated the involvement of political forces in the prosecution directed by the
deceased’s brother, Congressman Exequiel Javier. The appellant adduced evi-
dence concerning a risk of torture in the Philippines as well as evidence con-
cerning the judiciary’s lack of independence from political influence. He also
argued that the Minister could not lawfully order the surrender of a refugee
claimant before the determination of his or her refugee claim.
[11] On October 19, 1996, the Minister ordered the appellant to be surren-
dered for extradition to the Philippines. The Minister acknowledged “weak-
nesses and inconsistencies” in the evidence against the appellant. However, he
rejected the appellant’s submission that the prosecution against him was polit-
ically motivated and that the Philippines’ extradition request was made for
the purpose of punishing him for his political beliefs. The Minister stated that
Canada only signs treaties with states having justice systems and political sys-
tems that are fair and that offer accused persons adequate procedural protec-
tions. While the Minister noted the evidence concerning political conditions
and human rights abuses in the Philippines, he expressed the view that the
situation had improved in recent years. The Minister concluded that Canada
could rely on the Philippines’ legal safeguards and political system to ensure
the appellant’s safety and to ensure that the appellant received a fair trial.
[12] Although the Minister of Justice ordered the appellant’s surrender for
extradition, prior to doing so, he sought and obtained two assurances from the
Philippines. First, he obtained an assurance that the death penalty would not
be imposed or carried out on the appellant. Second, he obtained an assurance
that the Philippines would exert its best efforts to ensure that the appellant’s
trial would be completed within one year from the date of his surrender. The
Minister acknowledged that the delays in the cases against the appellant’s co-​
accused “do raise some concerns”. While their trials had begun in 1988, the
Supreme Court of the Philippines had issued a Temporary Restraining Order

33 Canadian Charter of Rights and Freedoms, art. 7, available at https://​laws-​lois.justice.gc.ca/​

eng/​const/​page-​15.html. (“Life, liberty and security of person. Everyone has the right to life,
liberty and security of the person and the right not to be deprived thereof except in accor-
dance with the principles of fundamental justice.)

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Extradition 371

in 1989, which had halted their trials indefinitely. In the Minister’s view, sur-
rendering the appellant for extradition to the Philippines in reliance on the
assurances he had obtained would not violate the appellant’s rights under s. 7
of the Charter.
….
[The Supreme Court issued two Temporary Restraining Orders (tro)
against the trial court, both upon motion by the Prosecutor, which considerably
delayed the trial. The first tro was issued in August 1989. Pacificador’s family
attorney, Javellana, had been arrested and impleaded in the murder charge.
The Prosecutor secured a tro from the Supreme Court to stop Javellana’s bail
application until the trial judge decides the Prosecutor’s motion to discharge
one of the accused as a state witness to testify against Javellana.
When the trial judge denied that motion, the Prosecutor moved to inhibit
the judge for bias. In September 1989, the Supreme Court issued its second
tro ordering the trial judge to “cease and desist from further acting” in the
case.” Three years later, in September 1992, the Supreme Court confirmed and
ratified the Temporary Restraining Order of September 1989.]
[23] The prosecution took the position that the Supreme Court’s Temporary
Restraining Order prevented any further proceedings against the appellant’s
co-​accused. The co-​accused made repeated petitions to the Supreme Court to
have the Temporary Restraining Order set aside. The Supreme Court did not
respond to any of their repeated petitions.
….
analysis
[40] For the reasons that follow, it is my view that to surrender the appellant
for extradition in the particular circumstances of this case would violate his s. 7
rights. Because of the conclusion I have reached on this issue, it is unnecessary
to consider whether the applications judge erred in holding that the appellant
may be lawfully surrendered for extradition before his claim for refugee status
is determined.
….
[44] The Supreme Court of Canada has held that a Minister’s surrender deci-
sion violates s. 7 of the Charter where the individual would face a situation that
is “simply unacceptable” or where the nature of the foreign country’s criminal
procedures or penalties “sufficiently shocks the conscience”. [citations omit-
ted] ….
….
[45] In subsequent cases, the Supreme Court of Canada has expanded on
the meaning of “simply unacceptable” and “shocks the conscience”. In Kindler at
p. 55, the majority of the Supreme Court held:

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[T]‌he reviewing court must consider the offence for which the penalty may
be prescribed, as well as the nature of the justice system in the requesting juris-
diction and the safeguards and guarantees it affords the fugitive. Other consid-
erations such as comity and security within Canada may also be relevant to the
decision to extradite and if so, on what conditions. At the end of the day, the
question is whether the provision or action in question offends the Canadian
sense of what is fair, right and just, bearing in mind the nature of the offence
and the penalty, the foreign justice system and considerations of comity and
security, and according due latitude to the Minister to balance the conflicting
considerations.
….
[46] In Burns [citation omitted], the Supreme Court held:

Use of the ‘shocks the conscience’ terminology was intended to convey

the exceptional weight of a factor such as the youth, insanity, mental
retardation or pregnancy of a fugitive which, because of its paramount
importance, may control the outcome of the Kindler balancing test on
the facts of a particular case. The terminology should not be allowed to
obscure the ultimate assessment that is required: namely whether or
not the extradition is in accordance with the principles of fundamen-
tal justice. The rule is not that departures from fundamental justice are
to be tolerated unless in a particular case it shocks the conscience. An
extradition that violates the principles of fundamental justice will always
shock the conscience. The important inquiry is to determine what consti-
tutes the applicable principles of fundamental justice in the extradition
context.

The ‘shocks the conscience’ language signals the possibility that even though
the rights of the fugitive are to be considered in the context of other applicable
principles of fundamental justice, which are normally of sufficient importance
to uphold the extradition, a particular treatment or punishment may suffi-
ciently violate our sense of fundamental justice as to tilt the balance against
extradition. Examples might include stoning to death individuals taken in
adultery, or lopping off the hands of a thief. The punishment is so extreme that
it becomes the controlling issue in the extradition and overwhelms the rest of
the analysis.
[47] Applying that standard to the facts of this case, I have concluded that
taken as a whole, the record does demonstrate that to surrender the appellant
would be “simply unacceptable” as the manner in which this prosecution has
been conducted in the courts of the Philippines “shocks the conscience”.

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Extradition 373

….
[49] Minister Rock refused to order the appellant’s surrender without an
assurance from the Philippines authorities that they would exert their best
efforts to ensure that his trial was completed within one year. The applications
judge found that to surrender the appellant upon that assurance would vio-
late his s. 7 rights. The Philippines was given another chance, but was unwill-
ing or unable to provide an adequate assurance. Given yet a third chance, the
Philippines still failed to provide a reliable assurance as the trial of the co-​
accused was adjourned beyond the promised date for its resumption.
[50] In his first set of reasons, the applications judge stated: “The record
cries out for a better explanation of why the speedy trial assurance satisfied the
Minister or why the trial of the co-​accused has been delayed.” I agree with that
statement. Regrettably, more than three years later and despite the indulgence
of several opportunities to give a better explanation, none has been forthcom-
ing. Particularly disturbing is the fact that the assurances that have been given
have been unpersuasive and unreliable. This, combined with the fact that the
cause of the unconscionable delay is the unexplained order of the Supreme Court
of the Philippines, seriously undermines the respondent’s argument that the
appellant should be surrendered on the faith the Minister expressed in the
Philippines’ justice system. It is now apparent that the Supreme Court, the very
institution to which the appellant would have to look for protection from delay
and political manipulation and interference, is the cause of the unconscionable
delay in proceeding with the prosecution. Neither the Philippines authorities
nor the respondent has ever explained the reason for the order, the reason for
its confirmation and ratification, or the reason for its continuation for more
than a decade. The confirmation and ratification of the order were the result
of a decree apparently made in secret. The Supreme Court repeatedly failed to
respond to requests to lift the order by the appellant’s co-​accused, who were
in detention. The order was in place for an unconscionable period of time
and produced unconscionable results. The shocking and unacceptable delay in
bringing the appellant’s co-​accused to trial and the shocking and unacceptable
period of pre-​trial detention and denial of bail fall far below Canadian standards.
….[52] In my view, the Philippines’ final set of assurances does not alter
the conclusion that the appellant’s surrender would violate his s. 7 rights. The
Philippines’ authorities had advised the applications judge that proceedings
against the appellant’s co-​accused would recommence on September 27, 1999.
Instead of commencing on that date, the proceedings were adjourned. When
the Supreme Court of the Philippines finally lifted its Temporary Restraining Order
after more than a decade, it provided no reason for doing so. For years, requests to
lift the order by the appellant’s co-​accused remained unfulfilled and unanswered.

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374  Chapter 9

The Supreme Court lifted the order only after the Solicitor General’s motion
suggesting that Ontario courts would compare the appellant’s situation with
that of his co-​accused and only after the applications judge held that he would
set aside the appellant’s surrender if the Temporary Restraining Order were
not lifted. I find it significant that the only arguments to catch the court’s atten-
tion for over ten years were the submission that nothing else would procure the
appellant’s surrender and the indication from a Canadian judge that the appel-
lant’s surrender order would soon be set aside.
….
conclusion
….
[56] In my view, to surrender the appellant in the circumstances of this case
would be “simply unacceptable”. The foreign country’s criminal procedures
have been interpreted and applied in this very prosecution in a manner that
“sufficiently shocks the conscience” that to surrender the appellant would vio-
late his s. 7 right not to be denied life, liberty and security of the person except
in accordance with the principles of fundamental justice.

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 ­c hapter 10

International Criminal Law

In what is now recognized as the field of International Criminal Law (icl), the
landmark moment for Asia and the Philippines was the creation in January
1946 of the International Military Tribunal for the Far East (imtfe), more com-
monly referred to as the Tokyo War Crimes Tribunal. The Philippines was still
a colony then, but it was, together with India, then likewise a colony, given a
seat in the Tribunal pending independence (4 July 1946 for the Philippines, 15
August 1947 for India).

Extra-​territorial Criminal Jurisdiction: Piracy in the High Seas

For the Philippines in particular, a discussion of icl must begin with a 1922
case that actually foreshadowed the modern-​day reach of criminal courts. In
Lol-​lo and Saraw, the Philippine Supreme Court applied the concept to piracy
in the high seas, the quintessential example of a crime punishable by all states.
Two residents of Sulu, an island in southern Philippines, were part of a group
of twenty-​four armed men who took over a boat, robbed its passengers (all
Dutch Nationals), and abducted two young women. Lol-​lo raped one of the
women. When two of the attackers, Lol-​lo and Saraw, returned to their homes
in Sulu, they were tried and convicted by the Sulu trial court, later upheld by
the Supreme Court, even if the crime had been committed outside Philippine
territory.

Pirates are in law hostes humani generis. Piracy is a crime not against any
particular state but against all mankind. It may be punished in the com-
petent tribunal of any country where the offender may be found or into
which he may be carried.

The Court said that the jurisdiction to punish “has no territorial limits” because
“[a]‌s it is against all so may it be punished by all.” While it was unclear whether
the crime was committed in the high seas, the Supreme Court stated that even
if the crime had been committed within another state’s territorial waters,
piracy was still punishable by the Sulu court.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004469723_012

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376  Chapter 10

Crimes Committed during World War ii

The cases prosecuted after World War ii deal with acts committed by Japanese
soldiers on Philippine territory but adjudicated by a full range of courts: a fully
international ad hoc tribunal (the imtfe), the Philippine Supreme Court, a
U.S. military commission and a Philippine military tribunal. The cited deci-
sions by the last two military panels would be challenged via habeas corpus in
the Philippine and U.S. Supreme Courts.

The Philippine Judge at the Tokyo War Crimes Tribunal

One of the eleven judges was from the Philippines, Delfin Jaranilla, who had
served as Attorney General before the war and Supreme Court Justice briefly
after. Significantly, he is a veteran and survivor of the Bataan Death March.1
He concurred in the Majority Opinion but issued a Concurring Opinion.
The imtfe Charter) provided for jurisdiction ratione materiae over three
crimes: Crimes against Peace, Conventional War Crimes and Crime against
Humanity. The Majority applied the concept of “common plan or conspiracy”
only to Crimes against Peace, but Jaranilla would apply it to the two other
crimes, citing the language of the Charter. The entire debate arose from an
unfortunate formatting change in the enumeration of the crimes in the imtfe
Charter. It copied almost verbatim the list of the three crimes punishable in
the Nuremberg Charter including the last line on the liability of “[l]‌eaders,
organizers, instigators and accomplices participating in the formulation and
execution of a common plan or conspiracy to commit any of the foregoing
crimes.” However, whereas at Nuremberg that mode of liability was contained
in a separate paragraph, at the imtfe it was incorporated in the same para-
graph defining the last crime listed, Crimes against Humanity. Thus the confu-
sion that Jaranilla sought to clarify.
To Jaranilla’s credit, his Concurring Opinion addressed themes that would
resonate in future icl debates: his argument to punish murder as a separate
crime, that foreshadows modern icc debates on “concurrent crimes” and
“cumulative convictions” where the same facts satisfy the legal definition of
multiple crimes2; his argument against the dissent of Judge Radhabinod Pal
of India who had raised the nullum crimen, sine lege argument against the

1 Hitoshi Nagai, Burdened by the ‘Shadow of War’: Justice Jaranilla and the Tokyo Trial, in
Kerstin von Lingen (ed.), Transcultural Justice at the Tokyo Tribunal: The
Allied Struggle for Justice, 1946–​48 (2018), at 202–​220.
2 See, e.g., The Prosecutor v. Dominic Ongwen, icc-​02/​04-​01/​15 (4 February 2021), at https://​
www.icc-​cpi.int/​CourtRecords/​CR2021_​01026.PDF, at para. 2792.

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International Criminal Law 377

validity and legitimacy of the imtfe; the distinction between state and indi-
vidual responsibility; and his justification for the use of the atomic bomb in
Hiroshima and Nagasaki, which critics have lamented as a digression both
unnecessary and outside the scope of the charges he was called upon to
decide.3

Yamashita v. Styer before the Philippine Supreme Court

The Yamashita case is known for having established the principle of com-
mand responsibility but that principle was not at stake when it was first
brought before the Philippine Supreme Court. The trial of General Tomoyuki
Yamashita was conducted by a U.S. military commission in the Philippines. Its
creation was challenged before the Philippine Supreme Court, whose decision
thus did not turn upon the issue of command responsibility but mainly with
the validity of the military commission and of the trial. The military commis-
sion would eventually convict Yamashita. Both the Philippine Supreme Court
decision validating the military commission and that commission’s guilty ver-
dict would separately be brought before the U.S. Supreme Court but would be
consolidated in one decision, which is now the oft-​quoted and historic ruling
on command responsibility (infra Ch. 10.iii.A).
Also featured below is the dissent of Justice Gregorio Perfecto of the
Philippine Supreme Court, who in December 1945 anticipated Jaranilla’s
arguments against the nullum crimen, sine lege argument at the imtfe and
echoed Justice Robert Jackson’s “poisoned chalice” concerns expressed just
weeks before in his November 1945 Opening Statement at Nuremberg. Justice
Perfecto is known in Philippine law for his dissenting opinions that went
against the dominant views of the time, e.g., Raquiza v. Bradford, supra Ch.
8.i.a (insisting that Japanese spies caught during World War ii should, after
the war, be tried by civilian courts and not by military commissions), Dizon
v. Commanding General, supra Ch. 8.i.b (insisting that the Philippines should
have jurisdiction over crimes committed in U.S. military bases), and Mabanag
v. Lopez Vito4 (to strike down the Parity Rights Amendment to the Philippine
Constitution which gave “most favored nation” treatment to Americans as
regards the ownership and exploitation of natural resources).

3 See David Cohen and Yuma Totani, The Concurring Opinions of Justices Webb and Jaranilla,
in The Tokyo War Crimes Tribunal: Law, History, and Jurisprudence 496–​512
(2018).
4 Mabanag v. Lopez Vito, g.r. No. L-​1123, 05 March 1947.

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378  Chapter 10

Kuroda v. Jalandoni
In contrast to Yamashita, the case of General Shigenori Kuroda was heard by
a military commission created in 1947 by the Philippines after it regained its
independence in 1946.
While Kuroda similarly relied on command responsibility, its doctrinal
contribution in Philippine law lies in its theory that even if the Philippines
wasn’t a party-​signatory to the Hague and Geneva Conventions during the rel-
evant time, these can be applied to the acts committed by General Kuroda
in the Philippines because they “form[ed] part of the law of our nation.” The
Constitution’s Incorporation Clause, the Court reasoned, was “not confined to
the recognition of rules and principles of international law as contained in trea-
ties to which our government may have been or shall be a signatory.” Moreover,
the Court continued, the United States was a party to said Conventions and,
during World War ii, the Philippines was still an American colony.

The “Comfort Women” Case: Vinuya v. Romulo

This is a 2010 Philippine Supreme Court decision over military sexual slavery
committed during World War ii when the Japanese military organized “com-
fort stations” where abducted Filipino women were raped repeatedly while in
detention by Japanese soldiers.5 Significantly, the crimes committed against
the comfort women were nowhere mentioned in the 55 counts constituting
the indictment filed before the imtfe.
The Filipino comfort women filed this petition to compel the Executive
Branch to take up their claims against the Japanese government. The decision
contains a detailed background about the “comfort women”, their argument
that the prohibition against sexual slavery and torture were jus cogens norms,
and that the Philippine state was under obligation to seek reparations for the
violation of that norm. On the other hand, the Philippine government argued
that all Philippine claims had been settled by the war reparations paid by Japan
under the San Francisco Peace Treaty at the end of World War ii. The Court,

5 Radhika Coomaraswamy, Report of the Special Rapporteur on Violence against Women,

Its Causes and Consequences (Report on the mission to the Democratic People’s Republic of
Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime),
04 January 1996, UN Doc. e/​c n.4/​1996/​53/​Add.1; Gay J. McDougall, Contemporary Forms
of Slavery: Systematic rape, sexual slavery and slavery-​like practices during armed conflict
(Appendix: An Analysis of the Legal Liability of the Government of Japan for “Comfort Women
Stations” Established During the Second World War), 22 June 1998, UN Doc. e/​c n.4/​Sub.2/​
1998/​13; Yoshimi Yoshioki, Comfort Women: Sexual Slavery in the Japanese
Military during World War ii (2000).

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International Criminal Law 379

in dismissing the claim, relied on the President’s prerogatives in international

relations and her decision whether or not to exercise diplomatic protection.6

Command Responsibility

The Yamashita Precedent

Today’s doctrine of command responsibility is traced to the historic decision by
the U.S. Supreme Court in Yamashita v. Styer, which actually consolidates two
cases filed on behalf of General Tomoyuki Yamashita, namely, the first, a certio-
rari petition upon the Philippine Supreme Court decision denying Yamashita’s
habeas corpus application and validating the creation of the U.S. military tribu-
nal in Manila; and the second, a habeas corpus petition challenging the validity
of the military tribunal and its verdict finding Yamashita guilty.
In contrast to the antecedent Philippine decision which focused mainly on
the legality of the proceedings, the U.S. Supreme Court in addition confronted
the “question [of] whether the law of war imposes on an army commander a
duty to take such appropriate measures as are within his power to control the
troops under his command.”
Equally significant is the Dissenting Opinion by Justice Frank Murphy.
Just like the Philippine dissenting Justice Gregorio Perfecto, Justice Murphy
was known for “defend[ing] the rights of the little man” with a “crusader’s
zeal”7 and an “automatic defender of the underdog”.8 Although Murphy has
been praised for “subordinat[ing] precedent to an altogether human ideal
of justice”,9 he has been more widely criticized for it, that even his defenders
acknowledged his tendency to “read[] his personal predilections into his deci-
sions”10 and to “reach fairly happy results [but] lack[ing] proper concern for
legal techniques.”11

6 There was a separate series of Supreme Court rulings arising from charges that the deci-
sion contained portions that had been plagiarized and misquoted. The Court dismissed
these challenges (In The Matter Of The Charges Of Plagiarism, Etc., Against Associate
Justice Mariano C. Del Castillo, a.m. No. 10-​7-​17-​s c, [October 12, 2010], 647 phil 122–​197);
Re: Letter of the UP Law Faculty on Allegations of Plagiarism and Misrepresentation in the
Supreme Court, a.m. No. 10-​10-​4-​s c, [March 8, 2011], 660 phil 1-​130)).
7 Justice Murphy [obituary], The New York Times, 20 July 1949, at 24.
8 John P. Frank, Justice Murphy: The Goals Attempted, 59 Yale L. J. 1, 9 (1949) (hereinafter,
Murphy, Goals Attempted).
9 Late Justice Murphy Honored in Capital, The New York Times, 07 March 1951, at 38.
10 Murphy, Goals Attempted, supra note 8, at 1.
11 Murphy, Goals Attempted, supra note 8, at 1.

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Murphy’s dissent actually raised eyebrows in the Philippines where he

had earlier served as American Governor-​General (1933–​35) and, when the
Philippines gained commonwealth status, as U.S. High Commissioner (1935–​
36) representing the U.S. President, a high point in his career that he so cher-
ished that he kept his flag as Philippine Governor-​General in his Supreme Court
office.12 In a decision affecting the taxation of imports from the Philippines, he
wrote a separate opinion which spoke effusively of America’s “moral and legal
obligations” as “trustee for the Philippines.”13
Murphy criticized the heart of the charge holding a commander liable for
the acts of his subordinates. “The recorded annals of warfare and the estab-
lished principles of international law afford not the slightest precedent for
such a charge.” He called for the “highest standards of justice [to] be applied in
this trial of an enemy commander.” Otherwise, he cautioned, “stark retribution
will be free to masquerade in a cloak of false legalism.”
Finally, in Hilao v. Estate of Marcos, the class action suit by the Marcos
human rights victims, a U.S. federal court cited the Yamashita precedent,
together with inter alia the U.S. Torture Victim Protection Act, to apply com-
mand responsibility in a civil claim arising from “torture that occur[ed] in
peacetime.”

Writ of Amparo for Extra-​judicial Killings and Disappearances

President Gloria Macapagal-​Arroyo took office in January 2001. In 2007, the
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,
Professor Philip G. Alston, visited Manila and rendered a report on the alarm-
ing rise of extra-​judicial killings and disappearances.

Since 2001 the number of politically motivated killings in the Philippines

has been high and the death toll has mounted steadily. These killings
have eliminated civil society leaders, including human rights defenders,
trade unionists, and land reform advocates, as well as many others on the
left of the political spectrum.14

12 Murphy, Goals Attempted, supra note 8, at 10.

13 Hooven & Allison Co. v. Evatt, 324 U. S. 652, 691 (1945).
14 Philip Alston, Promotion and Protection of all Human Rights, Civil, Political, Economic,
Social and Cultural Rights, Including the Right to Development (Report of the Special
Rapporteur on extrajudicial, summary or arbitrary executions. Addendum: Mission to the
Philippines), 16 April 2008, U.N. Doc. A/​h rc/​8/​3/​Add.2.

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A section of his 2008 report, similarly with his 2009 follow-​up report,15 referred
to “The Killing of Leftist Activists”, and another on “Killings by the New People’s
Army”16 referring to the military component of the dominant Left movement
in the Philippines. In this collection, the Rubrico v. Macapagal and the Boac
v. Cadapan cases pertain to the first category, while Ocampo v. Obando belongs
to the second.
In Alston’s preliminary report immediately after his visit, he found a “pas-
sivity, bordering on an abdication of responsibility, which affects the way in
which key institutions and actors approach their responsibilities in relation to
such human rights concerns.”17
The Supreme Court, in response to the “prevalence of extralegal killing and
enforced disappearances” and as part of its power to “promulgate rules con-
cerning the protection and enforcement of constitutional rights”, created a
procedural remedy, the Writ of Amparo. The traditional writ of habeas corpus
had been ineffectual since all it took was for the military or police to deny cus-
tody of the missing person. The amparo writ was a “prerogative writ” to enable
courts to issue temporary protection orders, inspection orders, and witness
protection orders. It was not criminal, civil, or administrative in character, and
was compatible with parallel such proceedings.18
Significantly, in Rubrico, the Supreme Court held that command responsi-
bility was inapplicable in amparo proceedings which are not meant to pun-
ish any person criminally but aim simply to secure the life and safety of the
missing person. Rubrico impleaded the President of the Republic, the Chief
of Staff of the Armed Forces, and the Chief of the Philippine National Police.
However, the majority would allow the application of command responsibil-
ity “only to determine the author who, at the first instance, is accountable for,
and has the duty to address, the disappearance and harassments complained

15 Philip Alston, Promotion and Protection of all Human Rights, Civil, Political, Economic,
Social And Cultural Rights, Including The Right to Development. Report of the Special
Rapporteur on extrajudicial, summary or arbitrary executions. Addendum: Follow-​up
to country recommendations—​Philippines, 28 April 2009, U.N. Doc. A/​h rc/​11/​2/​Add.8
(“The Killings of Leftist Activists” and “Killings by the Communist Party of the Philippines/​
New People’s Army/​National Democratic Front”).
16 Id.
17 Philip Alston, Implementation of General Assembly Resolution 60/​251 of 15 March 2006
Entitled “Human Rights Council” (Preliminary note on the visit of the Special Rapporteur
on extrajudicial, summary or arbitrary executions, to the Philippines (12–​21 February
2007), 22 March 2007, U.N. Doc. A/​h rc/​4/​20/​Add.3.
18 The Rule on the Writ of Amparo, a.m. No. 07-​9-​12-​s c, 25 September 2007.

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of”, in other words, to identify the officer whom the court can order to grant
protective relief.
The respected Justice Conchita Carpio-​Morales wrote a Separate Opinion
where, while concurring in other respects, she argued that even if the amparo
proceedings “do not determine criminal, civil or administrative liability, [that]
should not abate the applicability of the doctrine of command responsibil-
ity.” Citing inter alia the German High Command Case at Nuremberg, the
Philippine precedents in Yamashita and Kuroda, and the UN ad hoc interna-
tional criminal tribunals, she concluded that there is a “long-​standing adher-
ence by the international community to the doctrine of command responsi-
bility, which makes it a general principle of law recognized by civilized nations
[and] as such, it should be incorporated into Philippine law as a generally
accepted principle of international law.” Justice Carpio-​Morales would later
affirm these views in another amparo case, Boac v. Cadapan, in which she
wrote for the Majority.19
In Ocampo v. Abando, the shoe is on the other foot. This time, the leaders
of the dominant group in the Philippine Left were being held responsible for
deaths resulting from an internal cleansing campaign within their ranks. The
case arose from the discovery in 2006 of a mass grave containing the skeletal
remains of their alleged victims. The accused asked that the murder charges be
dismissed under what is called the Hernandez Doctrine, namely, that common
crimes committed in the furtherance of rebellion are absorbed and punished
as part of the crime of rebellion.

National as well as international, laws and jurisprudence overwhelmingly

favor the proposition that common crimes, perpetrated in furtherance of
a political offense, are divested of their character as “common” offenses
and assumes the political complexion of the main crime of which they
are mere ingredients, and, consequently, could not be punished, under
Article 244 of the old Penal Code of the Philippines, separately from the
principal offense, or complexed with the same, to justify the imposition
of a graver penalty.20

The majority rejected the argument, saying that that was a matter for the pros-
ecution to determine and, should an indictment issue, for the defense to estab-
lish at trial.

19 g.r. Nos. 184461,31 May 2011.

20 People v. Hernandez, g.r. Nos. L-​6025-​26, Resolution, 18 July 1956.

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Below Ocampo v. Abando will be discussed again, on the issue of whether

the Hernandez Doctrine has been effectively superseded by the ihl Law
which separately punishes these “common” offenses, if they rise to the level of
war crimes, genocide or crimes against humanity.

The International Criminal Court

This section looks at the Rome Statute from two different directions. From one
end, it looks at how the Rome Statute is treated within the Philippine domes-
tic legal system: how it was signed but not ratified for ten years and, in the
meantime, was already compromised by the Bilateral Immunity Agreement
with the United States. From the other end, it looks at how the International
Criminal Court (icc) has applied the Rome Statute to the Philippines, specif-
ically, through the icc Prosecutor’s preliminary examination of the extraju-
dicial killings in President Rodrigo Roa Duterte’s “War on Drugs”, followed by
the Philippine President’s withdrawal from the Rome Statute, and the ensuing
domestic debate on the constitutionality of that withdrawal. In both direc-
tions, the relationship between the icc and the Philippines has been, to say
the least, rather eventful.

The 11-​Year Saga of the Philippine Ratification

The Rome Statute has gone through a complicated process largely hostage to
domestic politics. It began interestingly enough with its signing by President
Joseph Estrada on 28 December 2000, who in less than a month, by 20 January
2001, would be ousted from the Presidency by his Vice-​President, Gloria
Macapagal-​Arroyo.21 The Department of Foreign Affairs twice transmitted to
President Macapagal-​Arroyo the ratification papers, on 9 May 2002 and again
on 19 February 2003, but she sat on the signed treaty and would not forward it
for Senate concurrence for the entire decade that she was in office.
In 2003, in Pimentel v. Executive Secretary, several Filipino advocates of the
icc asked the Supreme Court to compel the President to transmit the signed

21 Raul C. Pangalangan, Philippine Constitutional Law 2001–​2010: Republican Institutions and

Populist Politics, in Albert Chen (ed.), Major Constitutional Developments in
Asia in the First Decade of the 21st Century 295–​321 (2013); Raul C. Pangalangan,
The Philippine “People Power” Constitution and The Limits of Liberal Constitutionalism,
in Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories
and Implementation of Rule of Law in Twelve Asian Countries, with
Comparisons with France and the U.S. 373–​7 4 (2004).

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treaty to the Senate for its concurrence. They argued that such transmittal was
a ministerial act under the Constitution and Executive Order No. 459, supra,
governing the negotiation and signing of treaties, that the Court can compel
via a writ of mandamus. The Supreme Court rejected the plea, saying that the
President’s primacy in foreign affairs encompassed not just the decision to sign
treaties but likewise the decision to forward it to the Senate for its concurrence.
In other words, the treaty remained within the Executive branch even after the
President had signed it and before she had transmitted it to the Senate.
The Court made a curious distinction, however, between the “signing of
the treaty by the Philippine representative” and its “ratification, acceptance
or approval” by the head of state which supposedly then binds the state. This
misreads Article 125 (Signature, ratification, acceptance, approval or accession)
of the Rome Statute which provides for “signature” in para. 1, and “ratification,
acceptance or approval” in para. 2. The two paragraphs actually pertain to two
different modes by which a state can give its consent to the treaty; they are not
two stages of the consenting process. Indeed, para. 1 contains a 31 December
2000 deadline for signature. By the Court’s reading, there can be no new party-​
signatories after that deadline. Obviously that has not been the case. Moreover,
the Court contemplates the interval, between signature and ratification, as the
time when the President reviews the treaty signed by his deputies.

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.

That duty is actually discharged at the moment of signing, and the Court’s for-
mula would give the Executive branch the proverbial second bite at the apple.
In this case, there was no second bite because President Estrada actually signed
the Rome Statute himself, and thus there was no gap between the purported
signature by his deputies and ratification by himself.
While Pimentel was pending, in May 2003, the Philippines signed the Bilateral
Immunity Agreement (bia) with the United States as an executive agreement.
The United States had earlier signed the Rome Statute under U.S. President
William Clinton but his successor, George W. Bush, not only “unsigned” the
Statute and also deterred other states from signing by pushing for bias.
The Philippines agreed not to surrender U.S. nationals to third parties with-
out the consent of the U.S., if the purpose of the surrender was to transfer that

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national to an international tribunal unless it has been established by the UN

Security Council.
When the validity of the bia was challenged in Bayan Muna v. Romulo, the
Court said at the outset that the Rome Statute had a “key determinative bear-
ing on this case”, and held that the bia was properly signed as a mere executive
agreement, that is to say, not as a treaty subject to Senate concurrence because
the bia did not detract from any Philippine obligation under the Rome Statute.
More specifically, the non-​surrender obligation was compatible with Article
98.2 of the Rome Statute which allows a state to decline a request for surrender
if it conflicts with that state’s obligations under other international agreement,
in this case, the bia. Moreover, the Court said that the bia was consistent with
the principles of complementarity (that the Philippines has primary jurisdic-
tion to punish), and ne bis in idem (that if the Philippines has tried a person,
the icc may no longer punish that person for the same conduct).
The Court rejected the further argument that the bia, as a mere execu-
tive agreement, may not contravene national laws passed by the Congress,
in this case, the ihl Law, supra, which punishes war crimes, genocide and
crimes against humanity, and customary international law. The Court held
that the Philippines can still punish persons charged with these offenses or
transfer them for prosecution in the United States under the Philippines-​U.S.
Extradition Treaty.
In the meantime, the ratification process moved forward in 2010 after
President Macapagal-​Arroyo’s term ended and Benigno S. Aquino iii was
elected her successor. This cleared the way for the Senate to give its concur-
rence. The Philippine ratification of the Rome Statute was deposited on 30
August 2011, granting the icc jurisdiction over Rome Statute crimes commit-
ted on the territory of the Philippines or by its nationals from 1 November 2011
onwards.

The icc Prosecutor’s 2018 Preliminary Examination and the 2021

Supreme Court Decision on the Philippine Withdrawal from the
Rome Statute
On 30 July 2016, President Rodrigo Roa Duterte assumed office on a campaign
promise of taking draconian measures against the drug menace, later named
his “War on Drugs.” On 13 October 2016, the icc Prosecutor Fatou Bensouda
issued a statement that noted the “worrying reported extra-​judicial killings of
alleged drug dealers and users in the Philippines, which may have led to over
3,000 deaths in the past three months.”
On 8 February 2018, she opened a preliminary examination of the situation
in the Philippines. She traced the record of then Mayor Duterte of Davao City

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who “publicly supported and encouraged the killing of petty criminals and
drug dealers [by] police officers … as well as the so-​called Davao Death Squad
[who] carried out at least 1,000 killings in incidents that share a number of
common features. She then cited now President Duterte’s campaign pledge “to
launch a war on crime and drugs, inter alia, through replicating the strategies
he implemented in Davao City during his time as mayor.”
Under Article 13 (Exercise of jurisdiction), the jurisdiction of the Court can
be triggered in three ways, namely, by a referral by a State Party, referral by the
United Nations Security Council acting under its Chapter vii powers, or by the
Prosecutor acting proprio motu. However, investigations under the third trigger
mechanism, in contrast to the first two, need to be authorized by the Pre-​Trial
Chamber. The Pre-​Trial Chamber shall “authorize the commencement of the
investigation” if it is satisfied that there is a “reasonable basis to proceed with
the investigation (Article 15.4).
The Philippine response to the preliminary examination was to with-
draw from the Rome Statute on 17 March 2018, citing its “principled stand
against those who politicize and weaponize human rights.” Under Article 127
(Withdrawal), it would “take effect one year after the date of receipt of the noti-
fication.” However, the withdrawal shall not “prejudice in any way the contin-
ued consideration of any matter which was already under consideration by
the Court prior to the date on which the withdrawal became effective” (Article
127.2).
Six members of the Philippine Senate and the Philippine Coalition for
the International Criminal Court, a civil society organization, immediately
challenged the withdrawal before the Supreme Court, saying that since the
Constitution expressly requires for treaty ratification action by both the
President (who signs) and the Senate (which approves by a two-​thirds super-
majority), then similarly treaty withdrawal should require Senate approval
even if the Constitution is silent on the matter.22 Thus the President cannot
withdraw from the Rome Statute on his sole authority.
In the meantime, in accordance with Article 127 of the Rome Statute, the
withdrawal took effect one year after notification, on 17 March 2019.
Subsequently, in a decision announced to the press in March 2021 but
released only in June 2021, the Supreme Court dismissed the petitions chal-
lenging the withdrawal from the Rome Statute” for being moot and academic.23

22 Pangilinan v. Cayetano, G.R. Nos. 238875 & 239483, Notice, 07 August 2018.
23 Press Release, Philippine Supreme Court, Pangilinan, et al. v. Cayetano, et al., G.R. Nos.
238875, 239483, and 240954 (Mar. 16, 2021), https://​sc.judiciary.gov.ph/​17760/​ and https://​
cdasiaonline.com/​jurisprudences/​71977?s_​params=VHyJHTdd5y-​Cxxv_​f-​Ev.

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The Court said that the “petitions were moot when they were filed” and thus
there was no “actual, live controversy” for the court to remedy.
This is incorrect because withdrawals do not take effect until after one year.
The petitions were filed in May and June 2018, and the withdrawal wouldn’t
take effect until March 2019. The plain fact is that there was a live case at the
time of filing.
The Court argued that this one-​year period pertained merely to the “effec-
tivity” of the withdrawal, not its “finality.” Thus, the Court reasoned, “the
Philippines completed the requisite acts of withdrawal” when the UN Secretary
General received the Philippine withdrawal on 17 March 2018.
Contrary to the Court’s reasoning, “finality” and “effectivity” do not extin-
guish but rather give rise to the live case. As regards “finality”, it is only when
the President’s withdrawal decision was notified to the U.N. that there arose a
justiciable case, the conditio sine qua non failing which the petitions would be
premature and not ripe for adjudication, and there would be no “actual case
or controversy.” In other words, 17 March 2018 is the day when case was born,
not the day it died. Indeed that merely set the stage for the Court to exercise
its power of judicial review over “[all cases in which the constitutionality or
validity of any treaty … is in question.”24 Otherwise the Court will never get
to exercise that power, and will have to wash its hands each time it faces a so-​
called “final” decision by the President.
The same with “effectivity.” No actual injury can arise until after the with-
drawal becomes effective, and it is precisely such detriment that is sought to be
remedied by the Court’s power of judicial review. That remedy remains avail-
able because, even after the lapse of one year, there is nothing in the Rome
Statute that precludes the icc Assembly of States Parties from deferring to a
Member State that withdraws a withdrawal on the ground that it is defective
and void ab initio under its Constitution, such that the one-​year period never
even commenced.
Significantly, notwithstanding the dismissal, the Court stated that the
withdrawal “does not undermine or diminish the [icc’s] jurisdiction and
power to continue a probe that it has commenced while a state was a party
to the Rome Statute” and that “liability for the alleged summary killings and
other atrocities committed in the course of the war on ·drugs is not nullified
or negated here.”

24 Const. article viii, Sec. 5(2)(a).

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The 2021 icc Prosecutor’s Request for Authorization to Investigate

the Situation in the Philippines
On 12 April 2021, the icc Prosecutor informed the icc Presidency that she
“intend[ed] to submit a request to a pre-​trial chamber for authorisation to
open an investigation into the situation in the Republic of the Philippines,
under article 15(3) of the Rome Statute.”25 On 24 May 2021, the icc Prosecutor
filed its request for authorization with icc Pre-​Trial Chamber I and, on 14 June
2021, the request was made public. The request stated that “there is a reason-
able basis to believe that the Crime Against Humanity of Murder was commit-
ted … in the context of the Philippine government’s “war on drugs” (“WoD”)
campaign”, placing the number of civilian victims at 12,000-​30,000. The icc
Prosecutor asserted that the Court retains its jurisdiction over crimes commit-
ted during the time in which the Philippines was party to the Statute. “The
Court’s exercise of such jurisdiction, moreover, is not subject to any time limit,
particularly since the preliminary examination here commenced prior to the
Philippines’ withdrawal.”

The icc Prosecutor’s “Preliminary Examination” of the Submission

on the South China Sea
In 2019, two respected Filipino national leaders sought the icc’s jurisdiction
over crimes against humanity alleged to have been committed by Chinese offi-
cials in the South China Sea.26 Former Foreign Affairs Secretary Alberto del
Rosario, who made the historic decision to bring the South China Sea dispute
before the Permanent Court of Arbitration, and retired Supreme Court Justice
and former Ombudsman Conchita Carpio-​Morales questioned before the icc
Prosecutor the “forcible exclusion” of Filipino fishermen from their traditional
fishing grounds; “massive reclamation and artificial island-​building” causing
severe damage to marine life; support for “illegal and harmful fishing practices”
that caused grave environmental damage.
The Prosecutor declined to proceed on this matter, having determined that
the preconditions to the exercise of its jurisdiction under Article 12(2) of the
Statute had not been satisfied. The nexus of nationality was not met because

25 Decision on the assignment of the situation in the Republic of the Philippines (19 April
2021), icc-​01/​21-​1-​s ecret-​Exp 19-​04-​2021 1/​4 sl pt, at https://​www.icc-​cpi.int/​Pages/​
record.aspx?docNo=ICC-​01/​21-​1.
26 Catalina Ricci S. Madarang, What you need to know: Ex-​ombudsman, ex-​d fa chief’s case
against China, InterAksyon (Mar. 25, 2019), available at: https://​interaksyon.philstar
.com/​politics-​issues/​2019/​03/​25/​146202/​conchita- ​carpio-​morales-​albert- ​del-​rosario
-​south-​china-​sea-​icc/​.

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China is not a State Party to the Rome Statute, and Court thus lacks personal
jurisdiction.
However, the Prosecutor nonetheless proceeded to examine whether Court
may still acquire jurisdiction based on the nexus of territoriality, considering
that the alleged conduct occurred before the Philippine withdrawal from the
Rome Statute took effect on 16 March 2019. The Prosecutor noted that the
Law of the Sea Convention distinguished between “sovereignty” over internal
waters and territorial sea, on one hand, and mere “sovereign rights” over mari-
time zones like the Exclusive Economic Zone (eez) and continental shelf. The
Prosecutor concluded that Article 12(2) pertained solely to territory subject of
a state’s “sovereignty” and that these maritime zones do not provide that ter-
ritorial nexus.
This notwithstanding, the authors of this submission have declared that
they will make additional filings27 to show that the destructive artificial island-​
building and the Chinese blockade of Filipino fishermen occurred within the
Philippines’ territorial sea, and that the ramming of a Filipino fishing vessel,
although it occurred in the eez, squarely meets the territorial nexus arising
from crimes “committed on board a vessel” with the Philippines as its “State of
registration.”28

The Legal Treatment of Armed Groups: Overlap between the

Domestic Crime of Rebellion and ihl Rules on Non-​international
Armed Conflicts

The first chapter of this book addressed the legal characterization of the
Philippine revolutionary army by the new colonizer, the United States. The
United States initially dealt with them under the U.S. President’s war powers
and laws of war that governed the U.S. military, and yet within a matter of
two years, after President Aguinaldo’s surrender, they were demoted to mere
brigands or, at best, insurgents, to be dealt with through domestic penal law.
Today with the regulation of non-​international armed conflicts under interna-
tional humanitarian law (ihl), this interplay between international law and

27 Michaela del Callar, Morales, Del Rosario icc case vs. China to proceed, gma News
(Sep. 16, 2020), available at: https://​www.gmanetwork.com/​news/​news/​nation/​755788/​
carpio-​joins-​del-​rosario-​morales-​in-​icc-​case-​vs-​china/​story/​.
28 Rome Statute, art. 12(2)(a) (“The State on the territory of which the conduct in question
occurred or, if the crime was committed on board a vessel or aircraft, the State of registra-
tion of that vessel or aircraft; ….”).

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domestic law in the legal treatment of armed groups has become more sophis-
ticated. This chapter pursues this interplay with the two armed conflicts being
fought in the Philippines.
There are currently two armed conflicts in the Philippines. The first is the
nationwide rebellion led by the Communist Party of the Philippines (or cpp) ;
its military component, the New Peoples’ Army (or npa); and its political “coa-
lition of progressive organizations”, the National Democratic Front (or ndf).29
The other is the Islamic secessionist rebellion based in the island of Mindanao.
While there have been various armed groups waging this rebellion, the most
active is the Moro Islamic Liberation Front (or milf) ) .
The first case in this series is also the most famous for two reasons. One,
the accused communist was the nation’s leading writer and poet, Amado V.
Hernandez. He was part of the resistance during World War ii, worked with
labor organizations affiliated with the communist rebels, became a journalist,
and was posthumously honored as National Artist for Literature. And two, his
rebellion case, People v. Hernandez, established the doctrine (now known in
Philippine law as the Hernandez doctrine) that the crime of rebellion absorbed
the other crimes committed in furtherance of that rebellion, a doctrine relevant
to this day on the issue of “concurrent crimes” and “cumulative convictions.”30

The Armed Conflict with the Communist Rebels

ihl has been applied to the armed conflict with the cpp-​n pa-​n df (hereinafter,
the communist rebels) through various legal avenues. The Philippine Republic
is a State Party to the Geneva Conventions of 1949 and Additional Protocols i
and ii of 1977. The Philippines became a party to the Geneva Conventions on
6 October 1952; Additional Protocol i on international armed conflicts on 30
March 2012; and Additional Protocol ii on non-​international armed conflicts
on11 December 1986. Significantly, for almost a quarter-​century, the Philippines
was a party to Protocol ii but not Protocol i.
On the other hand, in 1991, the National Democratic Front of the Philippines
(or ndfp, a variant of ndf above) characterized itself as a “national libera-
tion organization” and declared its “voluntary adherence” to ihl “especially”
common Article 3 and Additional Protocol ii. Note that at this stage, the com-
munist rebels characterized their war against the Philippine Government as a
non-​international armed conflict (niac).

29 Office of the Presidential Adviser on the Peace Process, Peace Process with the Communist
Party of the Philippines/​New People’s Army/​National Democratic Front (cpp/​n pa/​n df),
available at: https://​peace.gov.ph/​cpp-​npa-​ndf/​.
30 See The Prosecutor v. Dominic Ongwen, supra, n. 2.

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Barely a year later, in “exploratory talks” leading to peace negotiations,

the government and the rebels issued a Joint Declaration which, in its Aide
Memoire, stated that the Joint Declaration deliberately “evaded the issues relat-
ing to the political character or legal status of any of the Parties.” These issues
are distinct from the international/​non-​international character of the armed
conflict, and this will be reiterated in 1998 agreement, the Comprehensive
Agreement on Respect for Human Rights and International Humanitarian Law
(carhrihl).
In the meantime, the communist rebels issued their Declaration of
Undertaking to Apply the Geneva Conventions of 1949 and Protocol i of 1977,
but this time invoking the rules governing international armed conflicts. The
ndfp, claiming to wage an “armed revolutionary struggle for national libera-
tion and democracy, in the exercise of the right of self-​determination”, invoked
Additional Protocol i. The ndfp also held itself bound by “international cus-
tomary law pertaining to humanitarian principles, norms and rules in armed
conflicts.” Finally, the ndfp expressly accepted the principle of command
responsibility. Note that at this time, the Philippines was a State Party only to
Protocol ii but not yet to Protocol i and the ndfp was thus invoking Protocol i
ahead of the Philippine Government.
Significantly, the ndfp unilaterally undertook to treat captured armed per-
sonnel of the government as pows but demanded pow treatment as well for
npa soldiers captured by the government. However, pow status is recognized
only in international armed conflicts. In non-​international armed conflicts,
captured rebels remain subject to prosecution under national law, in the case of
the Philippines, the Revised Penal Code provisions punishing rebellion.31 This
undertaking and the counterpart demand consolidate the 1996 Declaration’s
characterization of the conflict as international in character.

Armed Conflict with the Muslim Secessionist Rebels

This collection will deal only with two of the Islamic secessionist groups that
have signed peace agreements with the government. The first is the Moro
National Liberation Front (or mnlf), with whom President Marcos signed the
first peace agreement in this conflict, the 1976 Tripoli Agreement which was
litigated in Abbas v. Commission on Elections (supra Ch. 3.).
The second is the Moro Islamic Liberation Front (or milf) 32 which has signed
peace agreements with two presidents. The first is the 2008 Memorandum

31 Revised Penal Code, art. 134, et seq. (Rebellion or insurrection; How committed).
32 Office of the Presidential Adviser on the Peace Process, Peace Process with the Moro Islamic
Liberation Front (milf), available at: https://​peace.gov.ph/​timeline/​peace-​process-​milf/​.

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of Agreement on Ancestral Domain (or moa-​a d) under President Gloria

Macapagal-​Arroyo which was immediately struck down as unconstitutional
by the Supreme Court in Province of Northern Cotabato v. Government of the
Philippines Peace Panel on Ancestral Domain (supra Ch. 3.ii.D). The Court held
that the moa-​a d virtually creates a State. The second is the 2012 Framework
Agreement on the Bangsamoro, and the 2014 Comprehensive Agreement on
the Bangsamoro under President Benigno Aquino iii. These were challenged
before the Supreme Court in Philippine Constitution Association v. Philippine
Government,33 but the Court threw it out as premature, since the Bangsamoro
Basic Law that would embody the peace agreement was still pending before
Congress.

Republic Act No. 9851 or the ihl Law (2009)

In this light, the Philippines has enacted the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity
(or ihl Law), which expressly enacts norms contained in ihl instruments and
in the Rome Statute into Philippine domestic law. Drawing from those sources,
the ihl law penalizes the “most serious crimes of concern to the international
community as a whole”—​namely, war crimes, genocide, and crimes against
humanity. The Philippines can thus prosecute these international crimes
within its own national system, and, though at that time the Philippines had
not yet ratified the Rome Statute, it actually enabled the Philippines to dis-
charge its aut dedere, aut judicare obligation to punish international crimes so
that the icc need not exercise its complementary jurisdiction.
The ihl law was applied for the first time in People v. Junaid Macauyag
Awal (2019), involving a member of an armed group, the “Maute-​i sis terrorist
group”, and the crime of sexual slavery committed against a 16-​year old woman
whom he had taken hostage and whom he made his forced wife. The Court
characterized the siege of Marawi City by an Islamic group as part of a non-​
international armed conflict and the crime committed as sexual slavery under
the ihl Law, Section 6.g on “rape, sexual slavery, prostitution, etc.”
Significantly, the Concurring Opinion of Justice Marvic Leonen in Ocampo
v. Abando identifies a legal consequence of the ihl Law. In Ocampo, commu-
nist leaders had been charged with murder in relation to an internal party
purge of victims found in a mass grave. They argued that under the Hernandez
Doctrine in Philippine law, “common” crimes are absorbed into the crime of

33 g.r. No. 218406, 29 November 2016.

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rebellion. However, the Concurring Opinion points out that the ihl Law delib-
erately punishes these acts as “separate” and “independent” crimes distinct
“even if they occur [as part of] the armed uprisings.”

[The ihl Law] provides for the penalties of crimes against humanity, seri-
ous violations of ihl, genocide, and other crimes against humanity. This
law provides for the non-​prescription of the prosecution of and execu-
tion of sentences imposed with regard to the crimes defined in the Act ….
These crimes are, therefore, separate from or independent from the
crime of rebellion even if they occur on the occasion of or argued to be
connected with the armed uprisings.

In other words, this carves out an exception to the Hernandez Doctrine such
that crimes against humanity cannot be “absorbed” into the crime of rebellion
and can be prosecuted and punished separately.

i Extra-​territorial Criminal Jurisdiction: People v. Lol-​lo and Saraw

(1922)34

On or about June 30, 1920, two boats left Matuta, a Dutch possession, for Peta,
another Dutch possession. In one of the boats was one individual, a Dutch
subject, and in the other boat eleven men, women, and children, likewise
subjects of Holland. After a number of days of navigation, at about 7 o’clock
in the evening, the second boat arrived between the Islands of Buang and
Bukid in the Dutch East Indies. There the boat was surrounded by six vintas
manned by twenty-​four Moros all armed. The Moros first asked for food, but
once on the Dutch boat, took for themselves all of the cargo, attacked some of
the men, and brutally violated two of the women by methods too horrible to
be described. All of the persons on the Dutch boat, with the exception of the
two young women, were again placed on it and holes were made in it, with
the idea that it would submerge, although as a matter of fact, these people,
after eleven days of hardship and privation, were succored. Taking the two
women with them, and repeatedly violating them, the Moros finally arrived
at Maruro, a Dutch possession. Two of the Moro marauders were Lol-​lo, who
also raped one of the women, and Saraw. At Maruro the two women were able
to escape.

34 g.r. No. 17958, 27 February 1922.

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Lol-​lo and Saraw later returned to their home in South Ubian, Tawi-​Tawi,
Sulu, Philippine Islands. There they were arrested and were charged in the
Court of First Instance of Sulu with the crime of piracy. ….
….
The proven facts are not disputed. All of the elements of the crime of piracy
are present. Piracy is robbery or forcible depredation on the high seas, without
lawful authority and done animo furandi, and in the spirit and intention of
universal hostility.
It cannot be contended … that the Court of First Instance was without juris-
diction of the case. Pirates are in law hostes humani generis. Piracy is a crime
not against any particular state but against all mankind. It may be punished
in the competent tribunal of any country where the offender may be found or
into which he may be carried. The jurisdiction of piracy unlike all other crimes
has no territorial limits. As it is against all so may it be punished by all. Nor
does it matter that the crime was committed within the jurisdictional 3-​mile
limit of a foreign state, “for those limits, though neutral to war, are not neutral
to crimes.” [citation omitted]
The most serious question which is squarely presented to this court for deci-
sion for the first time is whether or not the provisions of the Penal Code deal-
ing with the crime of piracy are still in force. ….
….
The general rules of public law recognized and acted on by the United
States relating to the effect of a transfer of territory from another State to the
United States are well-​known. The political law of the former sovereignty is
necessarily changed. The municipal law in so far as it is consistent with the
Constitution, the laws of the United States or the characteristics and institu-
tions of the government, remains in force. As a corollary to the main rules,
laws subsisting at the time of transfer, designed to secure good order and
peace in the community, which are strictly of a municipal character, continue
until by direct action of the new government they are altered or repealed.
[citation omitted]
These principles of the public law were given specific application to the
Philippines by the Instructions of President McKinley of May 19, 1889, to
General Wesley Merritt, the Commanding General of the Army of Occupation
in the Philippines, when he said:

Though the powers of the military occupant are absolute and supreme,
and immediately operate upon the political condition of the inhabitants,
the municipal laws of the conquered territory, such as affect private

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International Criminal Law 395

rights of person and property, and provide for the punishment of crime,
are considered as continuing in force, so far as they are compatible with
the new order of things, until they are suspended or superseded by the
occupying belligerent; and in practice they are not usually abrogated, but
are allowed to remain in force, and to be administered by the ordinary
tribunals, substantially as they before the occupation. This enlightened
practice is, so far as possible, to be adhered to on the present occasion.”
[citation omitted]

….
It cannot admit of doubt that the articles of the Spanish Penal Code dealing
with piracy were meant to include the Philippine Islands. Article 156 of the
Penal Code of the Penal Code in relation to article 1 of the Constitution of the
Spanish Monarchy, would also make the provisions of the Code applicable not
only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same
thing as piracy by the civil law, and he has never been disputed. The specific
provisions of the Penal Code are similar in tenor to statutory provisions else-
where and to the concepts of the public law. ….
….
The Constitution of the United States declares that the Congress shall have
the power to define and punish piracies and felonies committed on the high
seas, and offenses against the law of nations. [citation omitted] The Congress,
in putting on the statute books the necessary ancillary legislation, provided
that whoever, on the high seas, commits the crime of piracy as defined by the
law of nations, and is afterwards brought into or found in the United States,
shall be imprisoned for life. [citation omitted] The framers of the Constitution
and the members of Congress were content to let a definition of piracy rest on
its universal conception under the law of nations.

ii Crimes Committed during wwii

A Charter of the International Military Tribunal for the Far East

Charter (Tokyo War Crimes Tribunal) (1946)
Article 1. Tribunal established
The International Military Tribunal for the Far East) is hereby established
for the just and prompt trial and punishment of the major war criminals in the
Far East. The permanent seat of the Tribunal is in Tokyo.

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Article 2. Members
The Tribunal shall consist of not less than six members nor more than
eleven members, appointed by the Supreme Commander for the Allied Powers
from the names submitted by the Signatories to the Instrument of Surrender,
India, and the Commonwealth of the Philippines.
….
Article 5. Jurisdiction over persons and offences
The Tribunal shall have the power to try and punish Far Eastern war crim-
inals who as individuals or as members of organizations are charged with
offences which include Crimes against Peace.
The following acts, or any of them, are crimes coming within the jurisdic-
tion of the Tribunal for which there shall be individual responsibility:

a. Crimes against Peace: Namely, the planning, preparation, initiation or

waging of a declared or undeclared war of aggression, or a war in vio-
lation of international law, treaties, agreements or assurances, or par-
ticipation in a common plan or conspiracy for the accomplishment of
any of the foregoing;
b. Conventional War Crimes: Namely, violations of the laws or customs of
war;
c. Crimes against Humanity: Namely, murder, extermination, enslave-
ment, deportation, and other inhumane acts committed against any
civilian population, before or during the war, or persecutions on polit-
ical or racial grounds in execution of or in connection with any crime
within the jurisdiction of the Tribunal, whether or not in violation
of the domestic law of the country where perpetrated. Leaders, orga-
nizers, instigators and accomplices participating in the formulation
or execution of a common plan or conspiracy to commit any of the
foregoing crimes are responsible for all acts performed by any person
in execution of such plan.

Article 6. Responsibility of accused

Neither the official position, at any time, of an accused, nor the fact that an
accused acted pursuant to order of his government or of a superior shall, of
itself, be sufficient to free such accused from responsibility for any crime with
which he is charged, but such circumstances may be considered in mitigation
of punishment if the Tribunal determines that justice so requires.

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B Tokyo War Crimes Tribunal, Concurring Opinion of Judge Delfin

Jaranilla (1948)35
We of the majority have written our decision in which I concur, but there being
several points which, in my humble judgment need further discussion and elu-
cidation, I am constrained to write this concurring opinion.
conspiracy under the charter
We held in our opinion that a “common plan or conspiracy is stated to be a
crime” only in Crimes against Peace and “has no application to Conventional
War Crimes and Crimes against Humanity.”
….
Now the grounds of the majority opinion are that the provision in sub-​
paragraph (c) of the above-​quoted Article 5 of the Charter; to wit, “Leaders,
organizers, instigators, and accomplices Participating in the formulation or
execution of a common plan or conspiracy to commit any of the foregoing
crimes are responsible for all acts performed by any person in execution of
such plan” relates exclusively to sub-​paragraph (a), Crimes against Peace, “as
this is the only category in which a common plan or conspiracy is stated to
be a crime” and “has no application to Conventional War Crimes and Crimes
against Humanity as conspiracies to commit such crimes are not made crim-
inal by the Charter of the Tribunal.” In other words, the provision in question
is held to relate only to the Crimes against Peace because participation in a
common plan or conspiracy as an offense is mentioned only in Crimes against
Peace and is allegedly not mentioned in Conventional War Crimes and in
Crimes against Humanity.
….
This Article of the Charter is a fundamental one. Upon its correct interpre-
tation depend findings by the Tribunal, which will not only affect vitally the
liability of the defendants at bar, but also will potently influence future inter-
national relations and the course of world history.
The conclusion arrived at by the majority seems contrary both to the letter
and spirit of the said Article 5 of the Charter, upon the following grounds:
1. Violations of the laws or customs of war (Conventional War Crimes)
are, likewise, in a general sense, violations of international law, and
in violations of international law “a common plan or conspiracy” is
applicable.

35 Concurring Opinion by the Honorable Mr. Justice Delfin Jaranilla, Member from the
Republic of the Philippines (01 November 1948).

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398  Chapter 10

2. If the provision in question is to be considered as relating to “Crimes

against Peace”, of which it is not a part, with more reason it should,
as it does, relate to “Crimes against Humanity”, of which it is an inte-
gral part.
3. Such participation entails two responsibilities: (a) responsibility for
direct participation, and (b) responsibility, by indirect participation,
for the acts of those who executed the plan. Therefore, participants
in the Crimes against Peace are also responsible for the acts of those
who executed the common plan, although the provision therefor is
not included in sub-​paragraph (a).
4. There is no sense in holding that while said leaders, organizers, etc.
mentioned under the Crimes against Humanity are responsible for
the acts performed by others in execution of the common plan or
conspiracy, they should not be held responsible for the acts directly
performed by themselves. Hence, the provision in the “Crimes against
Peace”,—​covering participation as an offense, clearly applies also to
“Crimes against Humanity” in the same manner that the provision in
the “Crimes against Humanity” regarding indirect participation, also
applies to the “Crimes against Peace.”
5. It certainly was not the intention of the Charter to provide for partic-
ipation in a common plan or conspiracy as an offense in the “Crimes
against Peace”, and omit the same provision in “Conventional War
Crimes” and “Crimes against Humanity.” These last two crimes are
as much the result of the wars of aggression waged by Japan, and in
the wars of aggression there is liability for participation in a common
plan or conspiracy.
6. It should be noted that the provision in question contains the qual-
ification, “To commit any of the foregoing crimes.” Now if this provi-
sion, as the majority holds, refers exclusively to the Crimes against
Peace, it would have been, and should be, in the following form: “To
commit any of the acts or offenses mentioned in sub-​paragraph (a).”
Furthermore, said statement would have been included in sub-​
paragraph (a) instead of in sub-​paragraph (c). On the contrary, it con-
stitutes the last part of the whole Article 5, or would have constituted
a separate paragraph as in the Nuremberg Charter, thus, in either
case, clearly relating to all the three major crimes preceding which are
Crimes against Peace, Conventional War Crimes and Crimes against
Humanity, as proved by the words “any of the foregoing crimes.”
….

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International Criminal Law 399

8. This intention of the Charter to provide for a common plan or con-

spiracy not only in Crimes against Peace, but also in Conventional
War Crimes and Crimes against Humanity, is in complete conso-
nance with the terms of the Cairo Conference, Potsdam Declaration
and Term of Surrender in which the Allied Powers have’ clearly
expressed their intention to bring to justice the “irresponsible” “self-​
willed militaristic advisers” and leaders of Japan who permitted the
violations of laws or customs of war and the perpetration of crimes
against humanity, and whom the allies have called “brutal enemies”
and “war criminals.” Certainly, these advisers and leaders, “brutal
enemies” and “war criminals” referred to by the Allied Powers are
those of the defendants in this case and possibly still others who,
pursuant to a common plan or conspiracy, formulated and directed
the Japanese policies for an aggressive war. The Potsdam Declaration
states that “stern justice shall be meted out to all War criminals includ-
ing those who have visited cruelties upon our prisoners.” This provision
clearly distinguishes those who executed the cruelties and those who
ordered or permitted them.

counts on planning, preparation and initiation of wars of

aggression disregarded
We have agreed that the Tribunal has jurisdiction only over the offenses set
out in the Charter. This being the case, why should we abstain from consider-
ing the Counts on planning and preparation (Counts 6 to 17) and the Counts
on initiation (Counts 18 to 26) which are specifically set out in the Charter as
separate crimes against peace? To do so is to overlook Article 5 of the Charter
which provides for such planning, preparation and initiation as separate
offenses. The Charter makes it a clear duty of the Tribunal to pass judgment
upon these offenses of planning, preparation and initiation. When the Charter
provided that “the following acts or any of them are crimes coming within the
jurisdiction of the Tribunal” and that “the Tribunal shall have the power to try
and punish Far Eastern war criminals who are charged with “the said offenses,
it means that the Tribunal shall try and punish the defendants for the said
offenses with which they are charged, as covered by the Charter.
The conclusion arrived at by the majority implies that all the defendants
guilty of conspiracy in the waging of a war of aggression are necessarily also
guilty of planning, preparing and initiating it. This is correct if all said defen-
dants planned, prepared, initiated and waged it. It is incorrect, however, if
there are defendants guilty only of planning and preparation and/​or initia-
tion. Shall the Tribunal therefore abstain from finding a defendant guilty, if he

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400  Chapter 10

is, of planning and preparation only because he is not guilty of waging war?
Furthermore, a defendant who had participated in the planning and prepara-
tion for war might have initiated it also or only waged it. Initiation and waging
do not mean the same thing. Waging may, but does not necessarily, include ini-
tiation and initiation may be waging but is much more limited than the wag-
ing. Besides, initiation, like waging, does not necessarily involve planning and
preparation for war, for a defendant might have taken part only in the actual
initiation or waging of the war but not in the previous planning and prepara-
tion made for that purpose by some of the conspirators.
….
counts on murder and other atrocities
While rejecting a common plan or conspiracy in murder, and therefore disre-
garding the corresponding Counts 39 to 53 (except 44), the Tribunal, realizing
either its importance or its relation to murder, holds that murder is involved
in the war of aggression. These conclusions—​that conspiracy is not applicable
to murder and that murder is involved in the war of aggression—​are inconsis-
tent. If murder is involved in the war of aggression, and there being, in the war
of aggression, planning or conspiracy, then necessarily there was also planning
or conspiracy in the murder. It is hard to understand how one who conspired
to wage a war did not also conspire to commit murder which, as held, was
involved in the plan or conspiracy to wage that war.
But the crime of murder contemplated in the Charter is clearly not that ordi-
narily involved in a war, for if that is the case, what was then the need for the
Charter to define murder and the other Crimes against Humanity as separate
offenses coming within the jurisdiction of the Tribunal? This can only mean
that the Crimes against Humanity, as thus defined, are distinct crimes under
the jurisdiction of the Tribunal, apart from the killings ordinarily involved in
a war, and upon which, as charged in the Indictment, the Tribunal is directed
under the Charter to pass judgment.
The position taken on this point has the effect of nullifying this very import-
ant provision of the Charter and, together with it, the resolute intention of the
Allied Powers, which have created this Tribunal, to bring to justice the “brutal
enemies” and the “war criminals” not only for their wars of aggression, but also
for their shocking “Crimes against Humanity.”
The opinion further holds that if the war was lawful, then the charge of
murder will necessarily fall, for a lawful war does not involve unlawful kill-
ings. That appears to be a very dangerous pronouncement. The leaders of a
nation who wage a lawful war may then, with impunity, commit, or permit to be
committed, murder and other crimes against humanity at will and without any
discrimination. I cannot subscribe to such a theory which will shock mankind

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International Criminal Law 401

everywhere and at any time. It should be clear that a lawful war cannot justify
the commission of crimes and atrocities, such as those contemplated in the
Charter and proved in this case, which, perpetrated in cold blood and with
so much lust and hatred, were entirely and definitely outside the necessity of
warfare, lawful or unlawful.
conspiracy with germany and italy
Our opinion holds “that although some of the conspirators clearly desired the
achievement of these grandiose objects, nevertheless there is not sufficient
evidence to justify a finding that the conspiracy charged in Count 5 has been
proved.” On the other hand, we have also held that “the conspirators brought
about Japan’s alliance with Germany and Italy, whose policies were as aggres-
sive as their own, and whose support they desired both in the diplomatic and
military fields.” Parenthetically, it should be observed that the Tripartite Pact
between Japan, Germany and Italy contemplated cooperation also in the polit-
ical and economic fields.
Our latter holding is amply supported by the evidence and it is therefore not
correct to find that the conspiracy charged in Count 5 has not been proved.
Count 5, it should be noted, does not charge joint actual waging of the war
by Japan, Germany and Italy. It only charges a common plan or conspiracy
between Japan, on the one hand, and Germany and Italy, on the other, the
object of which was to secure the “domination of the whole world each having
special domination in its own sphere … and for that purpose” to “mutually assist
one another to wage …wars of aggression …against any country which might
oppose that purpose, and particularly against the United States of America,
the British Commonwealth of Nations, the Republic of France, the Kingdom of
the Netherlands, the Republic of China, the Republic of Portugal, the Kingdom
of Thailand, the Commonwealth of the Philippines, and the Union of Soviet
Socialist Republics.”
Now there can be no question that, as we have held, Japan and its leaders
“brought about Japan’s alliance with Germany and Italy”, for the said purposes.
The very Tripartite Pact between Japan, Germany and Italy and the relations
between them thereafter, as thoroughly discussed in our judgment, conclu-
sively prove this conspiracy. The whole world knows and the evidence is over-
whelming that Japan, Germany and Italy entered into said alliance in order
to enable them, with their combined power and resources, to establish their
respective spheres, Germany and Italy in Europe and Africa, and Japan in the
Ear East. This alliance was entered into when Germany and Italy were already
engaged in their wars of aggression. The evidence has clearly established that
Germany and Italy, during the war, helped Japan at least by restraining the
Allied Powers in the Pacific; and that Japan, before and during the Pacific War,

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similarly helped Germany and Italy at least by restraining the Allied Powers
in the Western Sphere. The fact that the parties to this alliance were unable,
beyond the limits of their resources, to assist each other in a more effective
manner cannot alter the existence and validity of their common plan and con-
spiracy and the purposes they sought to achieve pursuant thereto, which is all
that is alleged in Count 5.
objection to the tribunal
It has been argued, that the members of this Tribunal, being representatives
of the victorious nations which defeated Japan, cannot administer justice
and that the accused are denied a fair and impartial trial. As previously stated
herein, the Potsdam Declaration and the Instrument of Surrender provided for
this trial.
The Supreme Commander for the Allied Powers is duly authorized by the
Instrument of Surrender to create and appoint a tribunal for the trial of the
war criminal suspects, and that was exactly what has been implemented by the
Supreme Commander in creating the Tribunal. Not only that, he established
an International Military Tribunal composed of eleven members from eleven
different Allied nations, carefully chosen as to their qualifications, fairness and
impartiality. ….
….
Even without such Instrument, noted writers and authors of international
law are agreed that a victor nation has the power and the right to apprehend,
try and punish war criminals of the defeated state. An army which captures a
war criminal who has violated the rules of war has the full power and right to
prosecute and try the offender whether he is an enemy subject or not. Thus an
army commander in the field creates a trial court or commission for the said
purpose, appoints the members or judges thereof and the prosecutors from
among his own officers who have fought with the enemy, and executes their
judgment. The victorious army in the field does not appoint an enemy member
to sit in its tribunal or military commission to try war criminals, and there is no
such requirement anywhere either in national or international law.
….
The Supreme Commander for the Allied Powers could have followed this
same procedure, but in order to afford the top A war criminal suspects of Japan
the greatest measure of a fair and impartial trial, he created, not a one-​nation
military commission, but an eleven-​nation International Tribunal, appointed
qualified and impartial members from their respective nations, and provided
the Tribunal with a charter that has assured the application of democratic prac-
tices and guarantees as enjoyed by the foremost nations of the world. Can it be

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International Criminal Law 403

validly contended that this Tribunal, thus composed of highly qualified men
and created pursuant to an agreement among the Allied powers end to Japan’s
acceptance, has less power or is less independent and impartial than a one-​
nation military commission or a lone army commander to try and punish the
said war criminal suspects pursuant to the said agreement and Japan’s accep-
tance? Certainly what one nation can, in accordance with international law,
do in said cases, a number of nations acting under a common agreement can
likewise do with more reason. The fairness and impartiality of the members of
the Tribunal are proven by the fact that the Tribunal has absolved the defen-
dants of various charges and have differed on certain issues, and by the further
fact that a member has rendered an opinion of acquittal although he belongs
to one of the victorious nations. Having taken this position, the distinguished
member from India who has discussed, argued and deliberated this case with
his brethren in the Tribunal, has found no fault with their moral integrity,
independence of character and rectitude of judgment in the discharge of their
functions, and has therefore voted to overrule the defense challenge to the fair-
ness and impartiality of the Tribunal.
….
Furthermore, victorious states have the right to try war criminals pending
the signing of the peace treaty, such as in the present case. Even granting that
such a treaty has already been executed, unless otherwise provided, it will not
in any way be an impediment to the carrying out of the Potsdam Declaration or
the Instrument of Surrender, which do not impose any limitation or condition
whatever under which the trial of the supposed war criminals can or should be
carried out. No provision of any kind in international law which would impede
the trial of criminal suspects as here has been cited.
the maxim nullum crimen, sine lege, nulla poena sine lege
Arguments have been adduced to the effect that the Charter of this Tribunal
defined war crimes and contains provisions for the trial of war criminals, which
cannot be held retroactive. Citing the maxim of nullum crimen, sine lege, nulla
poena sine lege, it is claimed that the offenders cannot be fairly punished for an
act which at the time of its commission was not an offense and that the same
offender must have had advanced notice that the act was a crime and that a
penalty was attached to it. It is true that as a general principle of law a new
enactment may not apply to previous acts already committed because it may
then be considered as ex post facto law. I believe that this cannot be well sus-
tained in this case because we are not dealing with national laws of a country
or a national violator of its laws, but we are concerned with international law
and the violators of the same as the authors of international crimes.

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Assuming the lack of domestic legislation or any other legislation on the

subject, it does not follow that an international court cannot justifiably punish
acts universally accepted as contrary to the law of nations. I am quite certain
that this International Military Tribunal, created as an international court by
the Allied Powers, may legally try and punish individuals who have violated the
laws and customs of war which laws and customs of war are considered as part
of the law of nations. There is no denying that this war is the most hideous,
hateful and destructive wherein such untold atrocities have been perpetrated
and committed. Shall we overlook and let calmly the international criminal
acts go unnoticed and unpunished? The offenders of international law are cit-
izens of the world and as such are subject to international law whether or not
that law has been made part of the law of the land.
….
on individual responsibility
The principle of individual responsibility is recognized in our Charter, which
provides that:

Article 6. Responsibility of Accused. Neither the official position, at any

time, of an accused, nor the fact that an accused acted pursuant to the
order of his government or of a superior shall, of itself, be sufficient to free
such accused from responsibility for any crime with which he is charged,
but such circumstances may be considered in mitigation of punishment
if the Tribunal determines that justice so requires.

The theory therefore that the state should be held liable, instead of the individ-
ual, is contrary to the above provision of the Charter. The idea that a state or
a corporation commits crimes may now be considered as fiction. The accused
cannot shield themselves in superior orders or in the fact that their acts were
acts of a state. Neither can the accused of lower ranks protect themselves
against the liability by order of their superiors, alleged as acts of state. Frankly
speaking, crimes are always committed by persons, whether the act be that of
the state.
It is true that international law deals with and obligates the family of
nations, but there are instances in which it is very apparent that the subject
matter is both reasonable and necessary to effective enforcement and that
individual persons should uniformly be held accountable for violations. Such
action will prevent peoples from taking advantage both in victory and defeat
for the reason that they may feel certain of ultimate victory and they will
commit unrestrained atrocities if these would be considered unpunishable;

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or when defeat impends, they may anticipate immunity and will commit
unbridled atrocities on the theory that international law has not previously
made them punishable.
With reference to individual responsibility, Professor Philip C. Jessup, in his
hook entitled A Modern law of Nations (1948), although he seems to indicate
that there is no settled law on personal and individual responsibility, states
that there is a general acceptance that international law directly applies to
individuals as well as to states:

There is a considerable literature on the question whether this funda-

mental basis of the traditional law as a law between states only, is jurid-
ically and philosophically sound. It is frequently asserted that the prin-
ciple is not an absolute one, since it admits of exceptions, notably in
the case of piracy, where the pirate is said to be hostis humani generis,
punishable by any state that apprehends him. The trials of war criminals
have elicited learned discussions along the same lines. It is not intended
here to continue such debates concerning the existing law. It is rather
the purpose to take as a hypothesis the general acceptance of the thesis
that international law does apply directly the individual, that it does or can
bind him as well as states directly and in the light of that hypothesis to
re-​examine the existing law as it has developed through the centuries to
see what changes, what modifications would need to be made to fit the
law to the new basis. (pp. 9, 10).

On this point Dr. Jessup states further:

The net result of the war trials, however, particularly in the light of the
discussions attending them, must lead to the conclusion that the wag-
ing of aggressive war is considered an international crime regardless of
whether the anthropomorphic fiction of the state or the flesh-​and-​blood
cabinet or military officer is held liable to punishment. Under the tradi-
tional law the full acceptance of the illegality of war would have led to the
conclusion that the state which waged war would be guilty of an illegal
act; under the current development it is the individual who is held to have
committed an internationally criminal act. The traditional system would
have put the burden on the state to restrain the individual, whereas the
precedent of the war trials suggests that pressure in the form of fear of
punishment would be put on individuals to restrain the state. As inter-
national organization develops and is perfected, it may be assumed that

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collective force will be used in case of necessity to restrain states or other

groups in advance, but that punishment after the event will be visited on
individuals and not on the group (pp. 160–​2).

The United States Supreme Court, in the recent case of Ex Parte Quirin (1942,
317 U.S. 1), reiterated this individual liability in the conduct of wars in these
emphatic terms:

From the very beginning of its history this Court has applied the law of
war as including that part of the law of nations which prescribes for the
conduct of wars, the status, rights and duties of enemy nations as well as
enemy individuals.

It has been argued that the proceedings, trial and decision of the Nuremberg
International Military Tribunal should not be considered as a precedent. The
United Nations, however, has not only so considered it, but has also supple-
mented the provisions of the Nuremberg Charter, as stated by Dr. Jessup:

With respect to the central problem of war itself, the United Nations
has already taken an important step to supplement the provisions of
the Charter. On December 13, 1546, the General Assembly unanimously
adopted a resolution in which it affirmed “the principles of international
law recognized by the Charter of the Nuremberg Tribunal and the judg-
ment of the Tribunal.”
The General Assembly took note of the fact that “similar principles
have been adopted in the Charter of the International Military Tribunal
for the trial of the major war criminals in the Far East ….” [citation
omitted]

We cannot overlook the decision in the Nuremberg case which may now be
considered as a precedent. But granting for the sake of argument that it is not,
it should be unquestionably clear that a precedent in accordance with law and
justice is laid down where there exists none. “The attainment of justice is the
fundamental aim of the courts; in the absence of statutory inhibition, they may
take such steps, regarding matters properly before then, as will promote the
administration of justice, and in exercising jurisdiction they should not permit
irrelevant and immaterial matters to obstruct, delay, or defeat its administra-
tion.” [citation omitted] Citing Chief Justice Stone as pointing out that “the
problem … of jurisprudence in the modern world is the reconciliation of the

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International Criminal Law 407

demands …that law shall at once have continuity with the past and adaptabil-
ity to the present and the future … Dr. Jessup again observes that “Ignorance of
the progress already achieved in the development of international law over the
past three centuries and blindness to the still primitive character of the inter-
national legal system are equally inimical to the future progress which must be
made if all civilization is not to go the way of Hiroshima and Nagasaki.” (p. 14).
atomic bomb
It has also “been argued that the atomic ‘bomb should not have been used by
the Allies in the war against Japan, because it was inhuman and unwarranted.
The purpose of the arguments, as I can see, was to minimize the responsibility
of the defendants in this case for the atrocities and inhuman acts committed
during the war. It may be pertinent to consider that World War ii being an
all-​out war, the first global war of its kind, each and every inhabitant in the
country at war constituted an element to win the war. The country itself was
the main base of its army and was, therefore, subject to attack and destruction
as such a base.
It is also pertinent to consider that whether a small firearm, a small dem-
olition bomb, or the biggest caliber of artillery is employed in the course of
an attack, regardless of its scale or usage, not only the civilian population or
non-​combatants located near the objectives or near the combatants may be
killed, but also private homes and property within the range of battle may be
destroyed. These are inevitable incidents of battle, and such non-​combatants
and private property are therefore inevitably as much exposed to the same
danger of destruction in the dropping of an atomic bomb, only on a large scale.
….
May it, therefore, be alleged that Japan would not have used the atomic
bomb, if she had had it, in her war against the Allied Powers? Moreover, when
the atomic bomb was used on Japan, she had not as yet surrendered. While she
was weakened because of her reverses and of the defeat of her allies in Europe,
she was still occupying extensive portions of the Far East because her claws
were still stretched out to Java, Singapore, the Philippines, Manchuria and oth-
ers as a result of her aggression.
If a means is justified by an end, the use of the atomic bomb was justified, for
it brought Japan to her knees and ended the horrible war. If the war had gone
on longer, without the use of the atomic bomb, how many more thousands and
thousands of helpless men, women and children would have needlessly died
and suffered, and how such more destruction, and devastation, hardly irrepa-
rable, would have been wrought?

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C Yamashita v. Styer (Philippine Supreme Court, 1945)36

Tomoyuki Yamashita, erstwhile commanding general of the 14th army group
of the Japanese Imperial Army in the Philippines, and now charged before an
American Military Commission with the most monstrous crimes ever com-
mitted against the American and Filipino peoples, comes to this Court with a
petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer,
Commanding General of the United States Army Forces, Western Pacific. It is
alleged therein that petitioner after his surrender became a prisoner of war
of the United States of America but was later removed from such status and
placed in confinement as an accused war criminal charged before an American
Military Commission constituted by respondent Lieutenant General Styer; and
he now asks that he be reinstated to his former status as prisoner of war, and
that the Military Commission be prohibited from further trying him ….
….
True that the rule was made applicable in time of war, and there is a conflict
of opinion as to whether war has already terminated. War is not ended simply
because hostilities have ceased. After cessation of armed hostilities, incidents
of war may remain pending which should be disposed of as in time of war.
“An important incident to a conduct of war is the adoption of measures by the
military command not only to repel and defeat the enemies but to seize and
subject to disciplinary measures those enemies who in their attempt to thwart
or impede our military effort have violated the law of war.” (Ex parte Quirin,
317 U. S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a Military Commission
for the trial and punishment of war criminals is an aspect of waging war. And,
in the language of a writer, a Military Commission “has jurisdiction so long as
a technical state of war continues. This includes the period of an armistice,
or military occupation, up to the effective date of a treaty of peace, and may
extend beyond, by treaty agreement.” [citation omitted]
….
The Commission has been validly constituted by Lieutenant General Styer
by order duly issued by General Douglas MacArthur, Commander in Chief,
United States Army Forces, Pacific, in accordance with authority vested in him
and with radio communications from the Joint Chiefs of Staff …. This is upon
the theory that since the power to create a Military Commission is an aspect
of waging war, Military Commanders have that power unless expressly with-
drawn from them.

36 g.r. No. L-​129, 19 December 1945.

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The Military Commission thus duly constituted has jurisdiction both over
the person of the petitioner and over the offenses with which he is charged.
It has jurisdiction over the person of the petitioner by reason of his having
fallen into the hands of the United States Army Forces. Under paragraph 347
of the Rules of Land Warfare, “the commanders ordering the commission of
such acts, or under whose authority they are committed by their troops, may
be punished by the belligerent into whose hands they may fall.”
….
Petitioner is charged before the Military Commission sitting at Manila with
having permitted members of his command “to commit brutal atrocities and
other high crimes against the people of the United States and of its allies and
dependencies, particularly the Philippines,” crimes and atrocities which in the
bills of particulars, are described as massacre and extermination of thousands
and thousands of unarmed noncombatant civilians by cruel and brutal means,
including bayoneting of children and raping of young girls, as well as devas-
tation and destruction of public, private, and religious property for no other
motive than pillage and hatred. These are offenses against the laws of war as
described in paragraph 347 of the Rules of Land Warfare.

D Yamashita v. Styer, Perfecto, J., Concurring and Dissenting Opinion

(Philippine Supreme Court, 1945)37
Many of the basic ideas which prevail today in the customs and usages of nations
and became part of the international law emerged from the human mind cen-
turies before the Christian Era. Such is the idea that prisoners of war are enti-
tled to humane treatment, that treasons of war should be discountenanced,
and that belligerents must abstain from causing harm to non-​combatants.
….
Under these principles, petitioner General Tomoyuki Yamashita is entitled
to be accorded all the guarantees, protections, and defenses that all prisoners
should have, according to the customs and usages, conventions and treaties,
judicial decisions and executive pronouncements, and generally accepted
opinions of thinkers, legal philosophers and other expounders of just rules and
principles of international law. The seriousness or unfathomable gravity of the
charges against him, the unthinkable magnitude of the wholesale murders,
rapes, and destructions for which he is called to answer, the beastly massacres
and horrors by which he was thrown from the pedestal of military glory as the
“Tiger of Malaya” into the bottom of perversity of a human monster, must not

37 Yamashita v. Styer, g.r. No. L-​129, 19 December 1945.

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be taken into consideration, must all be forgotten, in order that true justice
may be administered in this case.
….
From all the foregoing, with regards to the petition for a writ of habeas cor-
pus, we conclude:
(1) That petitioner Yamashita, if he is responsible for the acts imputed
to him in the charges filed before the Military Commission, can
properly and justly be prosecuted and punished for them.
(2) That the fact that he was the Commander in Chief of a belligerent
army does not exempt him from criminal liability either for viola-
tions of international law or for the commission of crimes defined
and punishable under the laws of the country where committed.
(3) That his rights and privileges as a prisoner of war, under the Geneva
Convention, are not incompatible with nor are violated by his
prosecution for the international and domestic crimes committed
by him.
(4) That under the principles of natural law, all persons guilty of such
crimes are amenable to be arraigned before a court of justice
and, after a fair trial, if found guilty, should bear the full weight of
the law.
(5) That petitioner Yamashita can be prosecuted before the Philippine
civil courts in the like manner as a common criminal and be pun-
ished under the provisions of the Philippine Penal Code.
(6) That the Military Commission set up to try him possesses a juris-
diction which is concurrent with that of the Philippine civil courts,
and the choice of the competent tribunal where he should be tried,
which is a mere procedural technicality, is left to the wise discretion
of the officials in charge of the prosecution.
(7) That in violation of the law of nations, the offended party is the
people of the whole world, and the case against petitioner could be
properly entitled as Humanity versus Tomoyuki Yamashita, and no
person in position to prosecute the violators can honestly shirk the
responsibility of relentlessly prosecuting them, lest he be branded
with the stigma of complicity.
(8) That the absence of a codified International Penal Code or of a
criminal law adopted by the comity of nations, with specific penal-
ties for specific and well-​defined international crimes, is not a bar
to the prosecution of war criminals, as all civilized nations have pro-
vided in their laws the necessary punishment for war crimes which,
for their very nature, cease to be lawful acts of war, and become

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ordinary crimes with the extraordinary character of having been

committed in connection with war, which should be considered as
an aggravating circumstance.

….
13. Collective Responsibility
Although we maintain that the Military Commission here in question has
jurisdiction to try the case for war crimes against petitioner Yamashita, in the
regulations governing the trial of war criminals, Exhibit F, there are several
features which should not be left unchallenged [, specifically this section:]
“Any military or naval unit or any official or unofficial group or organization,
whether or not still in existence, may be charged with criminal acts or complic-
ity therein and tried by a Military Commission.”
This provision, undoubtedly, advances the principle of collective respon-
sibility in contradistinction to the principle of individualized criminal
responsibility.
Under the principle of individualized criminal responsibility, no person may
be convicted of any offense without due process of law and without proving in
said process, in which he should also enjoy the guarantee of equal protection
of the laws, that he is personally guilty of the offense.
Under the principle of collective criminal responsibility, any member of
any social group or organization may be convicted without any hearing if, in
a process where he did not have his day in court, the social group or any other
member thereof is found guilty of an offense.
During the Japanese regime, when a member of a family was found by the
military police, with or without ground, as responsible for an alleged offense or
being a member of a guerrilla unit, the remaining members of his family were
also made to suffer.
….
We are of opinion that said principle violates the constitutional guarantee
of due process of law and, therefore, we should have issued a writ of prohibi-
tion enjoining the Military Commission from exercising the unconstitutional
jurisdiction granted in section 4-​b of Exhibit F.
….
16. Fundamental Rights Guaranteed to Everybody
No matter who the petitioner is, we are of opinion that he is entitled to all the
safeguards of a fair trial.
The fundamental rights and freedoms guaranteed in the Charter of the
United Nations are guaranteed to all human beings, without exception.
….

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17. Needed Service to the Moral and Cultural Purposes of Humanity

If petitioner is tried and convicted under a process in which some of the
recognized essential guarantees for a fair trial are violated, it would produce a
result opposite that expected by those who are following up the trials of all war
criminals; the arousing of a deep-​rooted universal conviction that law must
be supreme and that justice should be equally administered to each and every
member of humanity.
The peoples of all nations who are keenly watching the prosecution of
Yamashita should be convinced, by conclusive evidence, that said prosecution
is not a mere parody of the administration of justice, devised to disguise the
primitive impulses of vengeance and retaliation, the instinctive urge to crush
at all costs, no matter what the means, a hated fallen enemy.
The prosecution, trial, and conviction of Yamashita must impress all the
peoples of the world that the principle of law is paramount, and supersedes
and wipes out all other considerations in dealing with war or common crimi-
nals. ….
…
So, even the shameful exploits in the Philippines with which Yamashita inglo-
riously crowned his military career, at its peak when he conquered Malaya and
Singapore, and descended from the pedestal of the greatest Nippon military
hero in all her history to the moral abyss of that abominable monstrous figure,
the greatest war criminal in Asia and in the Pacific, cannot but render some
service to the cultural purposes of humanity if, by his due trial in accordance
with the elemental rules in criminal procedure, the sense of law and justice
is further developed in the conscience of the present and future generations.

E Kuroda v. Jalandoni (1949)38

Shigenori Kuroda, formerly a Lieutenant-​General of the Japanese Imperial
Army and Commanding General of the Japanese Imperial Forces in the
Philippines during a period covering 1943 and 1944, who is now charged before
a Military Commission convened by the Chief of Staff of the Armed Forces of
the Philippines, with having unlawfully disregarded and failed “to discharge
his duties as such commander to control the operations of members of his
command, permitting them to commit brutal atrocities and other high crimes
against noncombatant civilians and prisoners of the Imperial Japanese Forces,
in violation of the laws and customs of war”—​comes before this Court seek-
ing to establish the illegality of Executive Order No. 68 of the President of the

38 Kuroda v. Jalandoni, g.r. No. L-​2662, 26 March 1949.

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Philippines; …. and to permanently prohibit respondents from proceeding

with the case of petitioner.
….
Executive Order No. 68, establishing a National War Crimes Office and pre-
scribing rules and regulations governing the trial of accused war criminals,
was issued by the President of the Philippines on the 29th day of July, 1947.
This Court holds that this order is valid and constitutional. Article 2 of our
Constitution provides in its section 3, that—​

The Philippines renounces war as an instrument of national policy, and

adopts the generally accepted principles of international law as part of
the law of the nation.

In accordance with the generally accepted principles of international law of

the present day, including the Hague Convention, the Geneva Convention
and significant precedents of international jurisprudence established by the
United Nations, all those persons, military or civilian, who have been guilty of
planning, preparing or waging a war of aggression and of the commission of
crimes and offenses consequential and incidental thereto, in violation of the
laws and customs of war, of humanity and civilization, are held accountable
therefor. Consequently, in the promulgation and enforcement of Executive
Order No. 68, the President of the Philippines has acted in conformity with the
generally accepted principles and policies of international law which are part
of our Constitution.
….
Petitioner argues that respondent Military Commission has no jurisdiction
to try petitioner for acts committed in violation of the Hague Convention and
the Geneva Convention because the Philippines is not a signatory to the first
and signed the second only in 1947. It cannot be denied that the rules and reg-
ulations of the Hague and Geneva conventions form part of and are wholly
based on the generally accepted principles of international law. In fact, these
rules and principles were accepted by the two belligerent nations, the United
States and Japan, who were signatories to the two Conventions. Such rules 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.
Furthermore, when the crimes charged against petitioner were allegedly
committed, the Philippines was under the sovereignty of the United States, and

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thus we were equally bound together with the United States and with Japan,
to the rights and obligations contained in the treaties between the belligerent
countries. These rights and obligations were not erased by our assumption of
full sovereignty. If at all, our emergence as a free state entitles us to enforce
the right, on our own, of trying and punishing those who committed crimes
against our people. ….
….
By the same token, war crimes committed against our people and our gov-
ernment while we were a Commonwealth, are triable and punishable by our
present Republic.

F Vinuya v. Romulo (Comfort Women) (2010)39

[Petitioners are former “comfort women” who were detained for the purpose
of being raped by the Japanese military forces in the Philippines during World
War ii.]
Petitioners narrate that during the Second World War, the Japanese army
attacked villages and systematically raped the women as part of the destruc-
tion of the village. Their communities were bombed, houses were looted and
burned, and civilians were publicly tortured, mutilated, and slaughtered.
Japanese soldiers forcibly seized the women and held them in houses or cells,
where they were repeatedly raped, beaten, and abused by Japanese soldiers. As
a result of the actions of their Japanese tormentors, the petitioners have spent
their lives in misery, having endured physical injuries, pain and disability, and
mental and emotional suffering.
Petitioners claim that since 1998, they have approached the Executive
Department … requesting assistance in filing a claim against the Japanese
officials and military officers who ordered the establishment of the “com-
fort women” stations in the Philippines. However, 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.
Issues
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 human-
ity and war crimes committed against them; and (b) compel the respondents

39 Vinuya v. Romulo, g.r. No. 162230, 28 April 2010.

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International Criminal Law 415

to espouse their claims for official apology and other forms of reparations
against Japan before the International Court of Justice (icj) and other inter-
national tribunals.
Petitioners’ arguments
Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the
comfort women system established by Japan, and the brutal rape and enslave-
ment of petitioners constituted a crime against humanity, sexual slavery, and
torture. They allege that the prohibition against these international crimes is
jus cogens norms from which no derogation is possible; as such, in waiving
the claims of Filipina comfort women and failing to espouse their complaints
against Japan, the Philippine government is in breach of its legal obligation
not to afford impunity for crimes against humanity. Finally, petitioners assert
that the Philippine government’s acceptance of the “apologies” made by Japan
as well as funds from the Asian Women’s Fund (awf) were contrary to inter-
national law.
Respondents’ Arguments
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.
….
In addition, respondents argue that the apologies made by Japan have been
satisfactory, and that Japan had addressed the individual claims of the women
through the atonement money paid by the Asian Women’s Fund [, established
by the Japanese government to “offer [] monetary compensation to victims of
the comfort women system.”]
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking.
In December 1937, Japanese military forces captured the city of Nanking
in China and began a “barbaric campaign of terror” known as the Rape of
Nanking, which included the rapes and murders of an estimated 20,000
to 80,000 Chinese women, including young girls, pregnant mothers, and
elderly women.
In reaction to international outcry over the incident, the Japanese govern-
ment sought ways to end international condemnation by establishing the
“comfort women” system. Under this system, the military could simultane-
ously appease soldiers’ sexual appetites and contain soldiers’ activities within
a regulated environment. Comfort stations would also prevent the spread of
venereal disease among soldiers and discourage soldiers from raping inhabi-
tants of occupied territories.

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Daily life as a comfort woman was “unmitigated misery.” The military forced
victims into barracks-​style stations divided into tiny cubicles where they were
forced to live, sleep, and have sex with as many 30 soldiers per day. The 30 min-
utes allotted for sexual relations with each soldier were 30-​minute increments
of unimaginable horror for the women. Disease was rampant. Military doctors
regularly examined the women, but these checks were carried out to prevent
the spread of venereal diseases; little notice was taken of the frequent cigarette
burns, bruises, bayonet stabs and even broken bones inflicted on the women
by soldiers.
Fewer than 30% of the women survived the war. Their agony continued in
having to suffer with the residual physical, psychological, and emotional scars
from their former lives. Some returned home and were ostracized by their fam-
ilies. Some committed suicide. Others, out of shame, never returned home.
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept
legal responsibility and pay compensatory damages for the comfort women
system were through a series of lawsuits, discussion at the United Nations
(UN), resolutions by various nations, and the Women’s International Criminal
Tribunal. The Japanese government, in turn, responded through a series of
public apologies and the creation of the awf.
…
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners’
claims for official apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners’ claims against Japan.
….
To be sure, not all cases implicating foreign relations present political ques-
tions, and courts certainly possess the authority to construe or invalidate trea-
ties and executive agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a foreign govern-
ment 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.
….

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In any event, it cannot reasonably be maintained that the Philippine gov-

ernment was without authority to negotiate the Treaty of Peace with Japan.
And it is equally true that, since time immemorial, when negotiating peace
accords and settling international claims:

[g]‌overnments have dealt with … private claims as their own, treating

them as national assets, and as counters, ‘chips’, in international bargain-
ing. Settlement agreements have lumped, or linked, claims deriving from
private debts with others that were intergovernmental in origin, and con-
cessions in regard to one category of claims might be set off against con-
cessions in the other, or against larger political considerations unrelated
to debts.

Indeed, except as an agreement might otherwise provide, international settle-

ments generally wipe out the underlying private claims, thereby terminating
any recourse under domestic law. ….
….
Respondents explain that the Allied Powers concluded the Peace Treaty
with Japan not necessarily for the complete atonement of the suffering caused
by Japanese aggression during the war, not for the payment of adequate rep-
arations, but for security purposes. The treaty sought to prevent the spread
of communism in Japan, which occupied a strategic position in the Far East.
Thus, the Peace Treaty compromised individual claims in the collective inter-
est of the free world.
….
The Philippines is not under any international obligation to espouse petition-
ers’ claims.
In the international sphere, traditionally, the only means available for indi-
viduals 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 individ-
ual’s behalf. Even then, it is not the individual’s rights that are being asserted,
but rather, the state’s own rights. Nowhere is this position more clearly reflected
than in the dictum of the Permanent Court of International Justice (pcij) in
the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplo-

matic action or international judicial proceedings on his behalf, a State
is in reality asserting its own right to ensure, in the person of its sub-
jects, respect for the rules of international law. The question, therefore,
whether the present dispute originates in an injury to a private interest,

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which in point of fact is the case in many international disputes, is irrel-

evant from this standpoint. Once a State has taken up a case on behalf
of one of its subjects before an international tribunal, in the eyes of the
latter the State is sole claimant.

Since the exercise of diplomatic protection is the right of the State, reliance on
the right is within the absolute discretion of states, and the decision whether
to exercise the discretion may invariably be influenced by political consider-
ations other than the legal merits of the particular claim. As clearly stated by
the icj in Barcelona Traction:

The Court would here observe that, within the limits prescribed by inter-
national 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 fathering their cause or obtaining
redress. The municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the national a right
to demand the performance of that obligation, and clothe the right with
corresponding sanctions. However, all these questions remain within the
province of municipal law and do not affect the position internationally.
[Emphasis added]

The State, therefore, is the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when will it cease. It retains, in this
respect, a discretionary power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the particular case.
The International Law Commission’s (ilc’s) Draft Articles on Diplomatic
Protection fully support this traditional view. They (i) state that “the right of
diplomatic protection belongs to or vests in the State,” (ii) affirm its discretion-
ary nature by clarifying that diplomatic protection is a “sovereign prerogative”
of the State; and (iii) stress that the state “has the right to exercise diplomatic
protection on behalf of a national. It is under no duty or obligation to do so.”
It has been argued, as petitioners argue now, that the State has a duty to pro-
tect its nationals and act on his/​her behalf when rights are injured. However,
at present, there is no sufficient evidence to establish a general international
obligation for States to exercise diplomatic protection of their own nationals
abroad. Though, perhaps desirable, neither state practice nor opinio juris has

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evolved in such a direction. If it is a duty internationally, it is only a moral and

not a legal duty, and there is no means of enforcing its fulfillment.
We fully agree that rape, sexual slavery, torture, and sexual violence are mor-
ally reprehensible as well as legally prohibited under contemporary interna-
tional law. However, petitioners take quite a theoretical leap in claiming that
these proscriptions automatically imply that the Philippines is under a non-​
derogable obligation to prosecute international crimes, particularly since peti-
tioners do not demand the imputation of individual criminal liability, but seek
to recover monetary reparations from the state of Japan. Absent the consent of
states, an applicable treaty regime, or a directive by the Security Council, there
is no non-​derogable duty to institute proceedings against Japan. Indeed, pre-
cisely because of states’ reluctance to directly prosecute claims against another
state, recent developments support the modern trend to empower individuals
to directly participate in suits against perpetrators of international crimes.

iii Command Responsibility

A Yamashita v. Styer (U.S. Supreme Court, 1946)40

The charge, so far as now relevant, is that petitioner, between October 9, 1944
and September 2, 1945, in the Philippine Islands, “while commander of armed
forces of Japan at war with the United States of America and its allies, unlaw-
fully disregarded and failed to discharge his duty as commander to control the
operations of the members of his command, permitting them to commit bru-
tal atrocities and other high crimes against people of the United States and
of its allies and dependencies, particularly the Philippines; and he … thereby
violated the laws of war.”
Bills of particulars, filed by the prosecution by order of the commission,
allege a series of acts, one hundred and twenty-​three in number, committed by
members of the forces under petitioner’s command, during the period men-
tioned. The first item specifies the execution of a ‘a deliberate plan and purpose
to massacre and exterminate a large part of the civilian population of Batangas
Province, and to devastate and destroy public, private and religious property
therein, as a result of which more than 25,000 men, women and children, all
unarmed noncombatant civilians, were brutally mistreated and killed, without
cause or trial, and entire settlements were devastated and destroyed wantonly
and without military necessity.’ Other items specify acts of violence, cruelty

40 Yamashita v. Styer, 327 U.S. 1 (1946) [emphasis added].

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and homicide inflicted upon the civilian population and prisoners of war, acts
of wholesale pillage and the wanton destruction of religious monuments.
It is not denied that such acts directed against the civilian population of an
occupied country and against prisoners of war are recognized in international
law as violations of the law of war. …. But it is urged that the charge does not
allege that petitioner has either committed or directed the commission of such
acts, and consequently that no violation is charged as against him. But this
overlooks the fact that the gist of the charge is an unlawful breach of duty by
petitioner as an army commander to control the operations of the members of
his command by “permitting them to commit” the extensive and widespread
atrocities specified. The question then is whether the law of war imposes on an
army commander a duty to take such appropriate measures as are within his
power to control the troops under his command for the prevention of the spec-
ified acts which are violations of the law of war and which are likely to attend
the occupation of hostile territory by an uncontrolled soldiery, and whether he
may be charged with personal responsibility for his failure to take such mea-
sures when violations result. That this was the precise issue to be tried was
made clear by the statement of the prosecution at the opening of the trial.
It is evident that the conduct of military operations by troops whose excesses
are unrestrained by the orders or efforts of their commander would almost cer-
tainly result in violations which it is the purpose of the law of war to prevent.
Its purpose to protect civilian populations and prisoners of war from brutality
would largely be defeated if the commander of an invading army could with
impunity neglect to take reasonable measures for their protection. Hence the
law of war presupposes that its violation is to be avoided through the control
of the operations of war by commanders who are to some extent responsible
for their subordinates.
This is recognized by the Annex to Fourth Hague Convention of 1907,
respecting the laws and customs of war on land. Article i lays down as a con-
dition which an armed force must fulfill in order to be accorded the rights of
lawful belligerents, that it must be ‘commanded by a person responsible for his
subordinates.’ 36 Stat. 2295. Similarly Article 19 of the Tenth Hague Convention,
relating to bombardment by naval vessels, provides that commanders in chief
of the belligerent vessels ‘must see that the above Articles are properly carried
out.’ 36 Stat. 2389. And Article 26 of the Geneva Red Cross Convention of 1929,
47 Stat. 2074, 2092, for the amelioration of the condition of the wounded and
sick in armies in the field, makes it ‘the duty of the commanders-​in-​chief of the
belligerent armies to provide for the details of execution of the foregoing arti-
cles (of the convention), as well as for unforeseen cases.’ And, finally, Article
43 of the Annex of the Fourth Hague Convention, 36 Stat. 2306, requires that

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the commander of a force occupying enemy territory, as was petitioner, ‘shall

take all the measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws
in force in the country.’
These provisions plainly imposed on petitioner, who at the time spec-
ified was military governor of the Philippines, as well as commander of the
Japanese forces, an affirmative duty to take such measures as were within his
power and appropriate in the circumstances to protect prisoners of war and
the civilian population. This duty of a commanding officer has heretofore been
recognized, and its breach penalized by our own military tribunals. ….

B Yamashita v. Styer, Murphy, J., Dissenting Opinion (U.S. Supreme

Court, 1946)41
The significance of the issue facing the Court today cannot be overempha-
sized. An American military commission has been established to try a fallen
military commander of a conquered nation for an alleged war crime. …. The
grave issue raised by this case is whether a military commission so established
and so authorized may disregard the procedural rights of an accused person
as guaranteed by the Constitution, especially by the due process clause of the
Fifth Amendment.
The answer is plain. The Fifth Amendment guarantee of due process of law
applies to “any person” who is accused of a crime by the Federal Government
or any of its agencies. No exception is made as to those who are accused of war
crimes or as to those who possess the status of an enemy belligerent. Indeed,
such an exception would be contrary to the whole philosophy of human
rights which makes the Constitution the great living document that it is. The
immutable rights of the individual, including those secured by the due process
clause of the Fifth Amendment, belong not alone to the members of those
nations that excel on the battlefield or that subscribe to the democratic ideol-
ogy. They belong to every person in the world, victor or vanquished, whatever
may be his race, color or beliefs.
….
Yet petitioner was rushed to trial under an improper charge, given insuffi-
cient time to prepare an adequate defense, deprived of the benefits of some of
the most elementary rules of evidence and summarily sentenced to be hanged.
In all this needless and unseemly haste there was no serious attempt to charge
or to prove that he committed a recognized violation of the laws of war. He

41 Yamashita v. Styer, 327 U.S. 1 (1946).

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was not charged with personally participating in the acts of atrocity or with
ordering or condoning their commission. Not even knowledge of these crimes
was attributed to him. It was simply alleged that he unlawfully disregarded
and failed to discharge his duty as commander to control the operations of the
members of his command, permitting them to commit the acts of atrocity. The
recorded annals of warfare and the established principles of international law
afford not the slightest precedent for such a charge. ….
….
In my opinion, such a procedure is unworthy of the traditions of our peo-
ple or of the immense sacrifices that they have made to advance the common
ideals of mankind. The high feelings of the moment doubtless will be satis-
fied. But in the sober afterglow will come the realization of the boundless and
dangerous implications of the procedure sanctioned today. No one in a posi-
tion of command in an army, from sergeant to general, can escape those future
Indeed, the fate of some future President of the United States and his chiefs
of staff and military advisers may well have been sealed by this decision. But
even more significant will be the hatred and ill-​will growing out of the appli-
cation of this unprecedented procedure. That has been the inevitable effect of
every method of punishment disregarding the element of personal culpability.
The effect in this instance, unfortunately, will be magnified infinitely for here
we are dealing with the rights of man on an international level. To subject an
enemy belligerent to an unfair trial, to charge him with an unrecognized crime,
or to vent on him our retributive emotions only antagonizes the enemy nation
and hinders the reconciliation necessary to a peaceful world.
That there were brutal atrocities inflicted upon the helpless Filipino peo-
ple, to whom tyranny is no stranger, by Japanese armed forces under the peti-
tioner’s command is undeniable. Starvation, execution or massacre without
trial, torture, rape, murder and wanton destruction of property were foremost
among the outright violations of the laws of war and of the conscience of a
civilized world. That just punishment should be meted out to all those respon-
sible for criminal acts of this nature is also beyond dispute. But these factors do
not answer the problem in this case. They do not justify the abandonment of
our devotion to justice in dealing with a fallen enemy commander. To conclude
otherwise is to admit that the enemy has lost the battle but has destroyed our
ideals.
….
As the military commission here noted, ‘The Defense established the diffi-
culties faced by the Accused with respect not only to the swift and overpow-
ering advance of American forces, but also to the errors of his predecessors,
weaknesses in organization, equipment, supply with especial reference to food

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and gasoline, training, communication, discipline and morale of his troops.

It was alleged that the sudden assignment of Naval and Air Forces to his tac-
tical command presented almost insurmountable difficulties. This situation
was followed, the Defense contended, by failure to obey his orders to withdraw
troops from Manila, and the subsequent massacre of unarmed civilians, partic-
ularly by Naval forces. Prior to the Luzon Campaign, Naval forces had reported
to a separate ministry in the Japanese Government and Naval Commanders
may not have been receptive or experienced in this instance with respect to a
joint land operation under a single commander who was designated from the
Army Service.”
….
The petitioner was accused of having “unlawfully disregarded and failed to
discharge his duty as commander to control the operations of the members
of his command, permitting them to commit brutal atrocities and other high
crimes.” The bills of particulars further alleged that specific acts of atrocity were
committed by “members of the armed forces of Japan under the command of
the accused.” Nowhere was it alleged that the petitioner personally committed
any of the atrocities, or that he ordered their commission, or that he had any
knowledge of the commission thereof by members of his command.
The findings of the military commission bear out this absence of any
direct personal charge against the petitioner. The commission merely found
that atrocities and other high crimes “have been committed by members of
the Japanese armed forces under your command … that they were not spo-
radic in nature but in many cases were methodically supervised by Japanese
officers and noncommissioned officers; … That during the period in question
you failed to provide effective control of your troops as was required by the
circumstances.”
In other words, read against the background of military events in the
Philippines subsequent to October 9, 1944, these charges amount to this: “We,
the victorious American forces, have done everything possible to destroy and
disorganize your lines of communication, your effective control of your per-
sonnel, your ability to wage war. In those respects we have succeeded. We
have defeated and crushed your forces. And now we charge and condemn you
for having been inefficient in maintaining control of your troops during the
period when we were so effectively besieging and eliminating your forces and
blocking your ability to maintain effective control. Many terrible atrocities
were committed by your disorganized troops. Because these atrocities were so
widespread we will not bother to charge or prove that you committed, ordered
or condoned any of them. We will assume that they must have resulted from
your inefficiency and negligence as a commander. In short, we charge you with

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the crime of inefficiency in controlling your troops. We will judge the discharge
of your duties by the disorganization which we ourselves created in large part.
Our standards of judgment are whatever we wish to make them.”
Nothing in all history or in international law, at least as far as I am aware,
justifies such a charge against a fallen commander of a defeated force. To use
the very inefficiency and disorganization created by the victorious forces as the
primary basis for condemning officers of the defeated armies bears no resem-
blance to justice or to military reality.
International law makes no attempt to define the duties of a commander of
an army under constant and overwhelming assault; nor does it impose liability
under such circumstances for failure to meet the ordinary responsibilities of
command. The omission is understandable. Duties, as well as ability to control
troops, vary according to the nature and intensity of the particular battle. To
find an unlawful deviation from duty under battle conditions requires difficult
and speculative calculations. Such calculations become highly untrustworthy
when they are made by the victor in relation to the actions of a vanquished
commander. Objective and realistic norms of conduct are then extremely
unlikely to be used in forming a judgment as to deviations from duty. The prob-
ability that vengeance will form the major part of the victor’s judgment is an
unfortunate but inescapable fact. So great is that probability that international
law refuses to recognize such a judgment as a basis for a war crime, however
fair the judgment may be in a particular instance. It is this consideration that
undermines the charge against the petitioner in this case. The indictment per-
mits, indeed compels, the military commission of a victorious nation to sit in
judgment upon the military strategy and actions of the defeated enemy and
to use its conclusions to determine the criminal liability of an enemy com-
mander. Life and liberty are made to depend upon the biased will of the victor
rather than upon objective standards of conduct.

C Hilao v. Estate of Marcos (U.S. Court of Appeals, Ninth Circuit,

1996)42
[The Marcos Estate appealed the award in the human rights class action suit,
supra, Ch. 7. The award held the Estate liable if:
(1) Marcos directed, ordered, conspired with, or aided the military in
torture, summary execution, and “disappearance” or (2) if Marcos
knew of such conduct by the military and failed to use his power to
prevent it.

42 103 F.3d 767 (9th Cir. 1996).

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Citing In Re Yamashita43; Additional Protocol i to the Geneva Conventions44;

the Statute of the International Criminal Tribunal for Yugoslavia45; and the
Torture Victim Protection Act,46 the court applied the principle of command
responsibility to “torture that occurs in peacetime.”]
The United States has moved toward recognizing similar “command respon-
sibility” for torture that occurs in peacetime, perhaps because the goal of inter-
national law regarding the treatment of noncombatants in wartime—​”to pro-
tect civilian populations and prisoners … from brutality” is similar to the goal
of international human-​rights law. This move is evidenced in the legislative
history of the tvpa:

[A]‌higher official need not have personally performed or ordered the

abuses in order to be held liable. [R]esponsibility for torture, summary
execution, or disappearances extends beyond the person who actually
committed those acts—​anyone with higher authority who authorized,
tolerated or knowingly ignored those acts is liable for them.

D Rubrico v. Macapagal-​Arroyo (2010)47

[Petitioner Rubrico chaired a militant activist group. She was taken by armed
men and brought to an air force base where she was interrogated by hooded
men. Upon release, she was placed under surveillance, and she and her daugh-
ters were subjected to continuing harassment. They asked for a writ of amparo
ordering the Army and the Police chiefs to “desist from performing any threat-
ening act against the[ir] security.”]
As explained by the ca [Court of Appeals], Gen. Esperon [the Armed Forces
Chief] and P/​Dir. Gen. Razon [Philippine National Police chief] were included
in the case on the theory that they, as commanders, were responsible for the
unlawful acts allegedly committed by their subordinates against petitioners.
To the appellate court, “the privilege of the writ of amparo must be denied as
against Gen. Esperon and P/​Dir. Gen. Razon for the simple reason that petition-
ers have not presented evidence showing that those who allegedly abducted

43 In re Yamashita, 327 U.S. 1 (1946).

44 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol i), of 8 June 1977 (Article
86.2—​Failure to act).
45 Statute of the International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia, 32 i.l.m. 1159, 1192–​94 (1993), art. 7 (3).
46 28 u.s.c. § 1350 (1948).
47 g.r. No. 183871, 18 February 2010.

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and illegally detained Lourdes and later threatened her and her family were,
in fact, members of the military or the police force.” The two generals, the ca’s
holding broadly hinted, would have been accountable for the abduction and
threats if the actual malefactors were members of the afp or pnp.
…
While in a qualified sense tenable, the dismissal by the ca of the case as
against Gen. Esperon and P/​Dir. Gen. Razon is incorrect if viewed against the
backdrop of the stated rationale underpinning the assailed decision vis-​à-​vis
the two generals, i.e., command responsibility. The Court assumes the latter
stance owing to the fact that command responsibility, as a concept defined,
developed, and applied under international law, has little, if at all, bearing in
amparo proceedings.
The evolution of the command responsibility doctrine finds its context in
the development of laws of war and armed combats. According to Fr. Bernas,
“command responsibility,” in its simplest terms, means the “responsibility of
commanders for crimes committed by subordinate members of the armed
forces or other persons subject to their control in international wars or
domestic conflict.” In this sense, command responsibility is properly a form
of criminal complicity. The Hague Conventions of 1907 adopted the doctrine
of command responsibility, foreshadowing the present-​day precept of hold-
ing a superior accountable for the atrocities committed by his subordinates
should he be remiss in his duty of control over them. As then formulated,
command responsibility is “an omission mode of individual criminal liabil-
ity,” whereby the superior is made responsible for crimes committed by his
subordinates for failing to prevent or punish the perpetrators (as opposed to
crimes he ordered).
The doctrine has recently been codified in the Rome Statute of the
International Criminal Court (icc) to which the Philippines is signatory. Sec.
28 of the Statute imposes individual responsibility on military commanders
for crimes committed by forces under their control. The country is, however,
not yet formally bound by the terms and provisions embodied in this treaty-​
statute, since the Senate has yet to extend concurrence in its ratification.
While there are several pending bills on command responsibility, there is
still no Philippine law that provides for criminal liability under that doctrine.
It may plausibly be contended that command responsibility, as legal basis
to hold military/​police commanders liable for extra-​legal killings, enforced dis-
appearances, or threats, may be made applicable to this jurisdiction on the
theory that the command responsibility doctrine now constitutes a principle
of international law or customary international law in accordance with the
incorporation clause of the Constitution. Still, it would be inappropriate to

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apply to these proceedings the doctrine of command responsibility, as the ca

seemed to have done, as a form of criminal complicity through omission, for
individual respondents’ criminal liability, if there be any, is beyond the reach
of amparo. In other words, the Court does not rule in such proceedings on
any issue of criminal culpability, even if incidentally a crime or an infraction
of an administrative rule may have been committed. As the Court stressed in
Secretary of National Defense v. Manalo (Manalo), the writ of amparo was con-
ceived to provide expeditious and effective procedural relief against violations
or threats of violation of the basic rights to life, liberty, and security of persons;
the corresponding amparo suit, however, “is not an action to determine crimi-
nal guilt requiring proof beyond reasonable doubt … or administrative liability
requiring substantial evidence that will require full and exhaustive proceed-
ings.” Of the same tenor, and by way of expounding on the nature and role of
amparo, is what the Court said in Razon v. Tagitis:

It does not determine guilt nor pinpoint criminal culpability for the
disappearance [threats thereof or extra-​judicial killings]; it determines
responsibility, or at least accountability, for the enforced disappearance
[threats thereof or extra-​judicial killings] for purposes of imposing the
appropriate remedies to address the disappearance [or extra-​judicial
killings].
….
As the law now stands, extra-​judicial killings and enforced disap-
pearances in this jurisdiction are not crimes penalized separately from
the component criminal acts undertaken to carry out these killings and
enforced disappearances and are now penalized under the Revised Penal
Code and special laws. The simple reason is that the Legislature has not
spoken on the matter; the determination of what acts are criminal … are
matters of substantive law that only the Legislature has the power to
enact. …

If command responsibility were to be invoked and applied to these proceed-

ings, it should, at most, be only to determine the author who, at the first
instance, is accountable for, and has the duty to address, the disappearance
and harassments complained of, so as to enable the Court to devise remedial
measures that may be appropriate under the premises to protect rights cov-
ered by the writ of amparo. As intimated earlier, however, the determination
should not be pursued to fix criminal liability on respondents preparatory to
criminal prosecution, or as a prelude to administrative disciplinary proceed-
ings under existing administrative issuances, if there be any.

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E Rubrico v. Macapagal-​Arroyo, Carpio-​Morales, J., Separate Opinion

(2010)48
I concur with the ponencia in all respects, except its treatment of the doctrine
of command responsibility.
The ponencia’s ambivalence on the applicability of the doctrine of com-
mand responsibility overlooks its general acceptance in public international
law, which warrants its incorporation into Philippine law via the incorporation
clause of the Constitution.
Under Article ii, Section 2 of the Constitution, the Philippines adopts the
generally accepted principles of international law as part of the law of the land.
Based on the clarification provided by then Commissioner Adolfo Azcuna, now
a retired member of this Court, during the deliberations of the Constitutional
Commission, the import of this provision is that the incorporated law would
have the force of a statute.
The most authoritative enumeration of the sources of international law,
Article 38 of the Statute of the International Court of Justice (icj Statute), does
not specifically include “generally accepted principles of international law.” To
be sure, it is not quite the same as the “general principles of law” recognized
under Article 38 (1) (c) of the icj Statute. Renowned publicist Ian Brownlie
suggested, however, that “general principles of international law” may refer to
rules of customary law, to general principles of law as in Article 38 (1) (c), or to
logical propositions resulting from judicial reasoning on the basis of existing
international law and municipal analogies.
….
The Court thus subsumes within the rubric of “generally accepted princi-
ples of international law” both “international custom” and “general principles
of law,” two distinct sources of international law recognized by the icj Statute.
Respecting the doctrine of command responsibility, a careful scrutiny of its
origin and development shows that it is a widely accepted general principle of
law if not, also, an international custom.
The doctrine of command responsibilitytraces its roots to the laws of war
and armed combat espoused by ancient civilizations. In a 1439 declaration of
Charles vii of Orleans, for instance, he proclaimed in his Ordinances for the
Armies:

[T]‌he King orders each captain or lieutenant be held responsible for the
abuses, ills, and offences committed by members of his company, and

48 g.r. No. 183871, 18 February 2010.

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that as soon as he receives any complaint concerning any such misdeed

or abuse, he bring the offender to justice so that the said offender be pun-
ished in a manner commensurate with his offence, according to these
Ordinances. If he fails to do so or covers up the misdeed or delays taking
action, or if, because of his negligence or otherwise, the offender escapes
and thus evades punishment, the captain shall be deemed responsible for
the offence, as if he has committed it . … [emphasis added]

The first treaty codification of the doctrine of command responsibility was in

the Hague Convention iv of 1907. A provision therein held belligerent nations
responsible for the acts of their armed forces, prefiguring the modern precept
of holding superiors accountable for the crimes of subordinates if they fail in
their duties of control, which is anchored firmly in customary international law.
The development of the command responsibility doctrine is largely attrib-
utable to the cases related to World War ii and subsequent events.
One prominent case is the German High Command Case tried by the
Nuremberg Tribunal, wherein German officers were indicted for atrocities
allegedly committed in the European war. Among the accused was General
Wilhelm Von Leeb, who was charged with implementing Hitler’s Commissar
and Barbarossa Orders, which respectively directed the murder of Russian
political officers and maltreatment of Russian civilians. Rejecting the thesis
that a superior is automatically responsible for atrocities perpetrated by his
subordinates, the tribunal acquitted Von Leeb. It acknowledged, however, that
a superior’s negligence may provide a proper basis for his accountability even
absent direct participation in the commission of the crimes. Thus:

[C]‌riminality does not attach to every individual in this chain of com-

mand from that fact alone. There must be a personal dereliction. That
can occur only where the act is directly traceable to him or where his fail-
ure to properly supervise his subordinates constitutes criminal negligence
on his part. [emphasis added in the original]

In In re Yamashita, the issue was framed in this wise:

The question then is whether the law of war imposes on an army com-
mander a duty to take such appropriate measures as are within his power
to control the troops under his command for the prevention of the speci-
fied acts which are violations of the law of war and which are likely to
attend the occupation of hostile territory by an uncontrolled soldiery,
and whether he may be charged with personal responsibility for his failure

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to take such measures when violations result. [emphasis added in the

original]

Resolving the issue in the affirmative, the Court found General Tomoyuki
Yamashita guilty of failing to control the members of his command who com-
mitted war crimes, even without any direct evidence of instruction or knowl-
edge on his part.
The post-​World War ii formulation of the doctrine of command respon-
sibility then came in Protocol i of 1977, Additional Protocol to the Geneva
Conventions of 1949, Article 86 of which provides:
1. The High Contracting Parties and the Parties to the conflict shall
repress grave breaches, and take measures necessary to suppress all
other breaches, of the Conventions or of this Protocol which result
from a failure to act when under a duty to do so.
2. The fact that a breach of the Conventions or of this Protocol was
committed by a subordinate does not absolve his superiors from penal
or disciplinary responsibility, as the case may be, if they knew, or had
information that should have enabled them to conclude in the circum-
stances at the time, that he was committing or was going to commit
such a breach and if they did not take all feasible measures within
their power to prevent or repress the breach. [emphases added in the
original]

The doctrine of command responsibility has since been invariably applied by

ad hoc tribunals created by the United Nations for the prosecution of interna-
tional crimes, and it remains codified in the statutes of all major international
tribunals.
From the foregoing, it is abundantly clear that there is a long-​standing adher-
ence by the international community to the doctrine of command responsibil-
ity, which makes it a general principle of law recognized by civilized nations.
As such, it should be incorporated into Philippine law as a generally accepted
principle of international law.
While the exact formulation of the doctrine of command responsibility
varies in different international legal instruments, the variance is more appar-
ent than real. The Court should take judicial notice of the core element that
permeates these formulations—​a commander’s negligence in preventing or
repressing his subordinates’ commission of the crime, or in bringing them to
justice thereafter. Such judicial notice is but a necessary consequence of the
application of the incorporation clause vis-​à-​vis the rule on mandatory judicial
notice of international law.

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That proceedings under the Rule on the Writ of Amparo do not determine
criminal, civil or administrative liability should not abate the applicability of
the doctrine of command responsibility [to Amparo cases].

iv The International Criminal Court

A The Philippines under the Rome Statute

1 Rome Statute of the International Criminal Court (1998)
The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their cultures
pieced together in a shared heritage, and concerned that this delicate mosaic
may be shattered at any time,
Mindful that during this century millions of children, women and men have
been victims of unimaginable atrocities that deeply shock the conscience of
humanity,
Recognizing that such grave crimes threaten the peace, security and well-​
being of the world,
Affirming that the most serious crimes of concern to the international com-
munity as a whole must not go unpunished and that their effective prosecu-
tion must be ensured by taking measures at the national level and by enhanc-
ing international cooperation,
Determined to put an end to impunity for the perpetrators of these crimes
and thus to contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal jurisdiction
over those responsible for international crimes,
….
Emphasizing in this connection that nothing in this Statute shall be taken as
authorizing any State Party to intervene in an armed conflict or in the internal
affairs of any State,
Determined to these ends and for the sake of present and future genera-
tions, to establish an independent permanent International Criminal Court in
relationship with the United Nations system, with jurisdiction over the most
serious crimes of concern to the international community as a whole,
Emphasizing that the International Criminal Court established under this
Statute shall be complementary to national criminal jurisdictions,
….
Have agreed as follows ….
article 1
the court

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An International Criminal Court (“the Court”) is hereby established. It shall

be a permanent institution and shall have the power to exercise its jurisdiction
over persons for the most serious crimes of international concern, as referred
to in this Statute, and shall be complementary to national criminal jurisdic-
tions. The jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute.
article 5
crimes within the jurisdiction of the court
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.
article 12
preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the juris-
diction of the Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise
its jurisdiction if one or more of the following States are Parties to this
Statute or have accepted the jurisdiction of the Court in accordance with
paragraph 3:
(a) The State on the territory of which the conduct in question
occurred or, if the crime was committed on board a vessel or air-
craft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required
under paragraph 2, that State may, by declaration lodged with the
Registrar, accept the exercise of jurisdiction by the Court with respect to
the crime in question. The accepting State shall cooperate with the Court
without any delay or exception in accordance with Part 9.
article 13
exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in
article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by a State Party in accordance
with article 14;

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(b) A situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by the Security Council acting
under Chapter vii of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime
in accordance with article 15.
….
article 17
issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the Court
shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has
jurisdiction over it, unless the State is unwilling or unable genu-
inely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction
over it and the State has decided not to prosecute the person con-
cerned, unless the decision resulted from the unwillingness or
inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which
is the subject of the complaint, and a trial by the Court is not per-
mitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by
the Court.
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 con-
cerned from criminal responsibility for crimes within the jurisdic-
tion 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 per-
son concerned to justice;
(c) The proceedings were not or are not being conducted inde-
pendently 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 con-
sider whether, due to a total or substantial collapse or unavailability of
its national judicial system, the State is unable to obtain the accused or

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the necessary evidence and testimony or otherwise unable to carry out

its proceedings.
article 18
preliminary rulings regarding admissibility
1. When a situation has been referred to the Court pursuant to article 13
(a) and the Prosecutor has determined that there would be a reason-
able basis to commence an investigation, or the Prosecutor initiates an
investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify
all States Parties and those States which, taking into account the infor-
mation available, would normally exercise jurisdiction over the crimes
concerned. The Prosecutor may notify such States on a confidential basis
and, where the Prosecutor believes it necessary to protect persons, pre-
vent destruction of evidence or prevent the absconding of persons, may
limit the scope of the information provided to States.
….
article 25
individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to this
Statute.
2. A person who commits a crime within the jurisdiction of the Court shall
be individually responsible and liable for punishment in accordance
with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible
and liable for punishment for a crime within the jurisdiction of the Court
if that person:
(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

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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 com-
mences its execution by means of a substantial step, but the crime
does not occur because of circumstances independent of the per-
son’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 vol-
untarily gave up the criminal purpose.
4. No provision in this Statute relating to individual criminal responsibility
shall affect the responsibility of States under international law.
….
article 27
irrelevance of official capacity
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 28
responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute for
crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military com-
mander shall be criminally responsible for crimes within the jurisdic-
tion of the Court committed by forces under his or her effective com-
mand and control, or effective authority and control as the case may
be, as a result of his or her failure to exercise control properly over such
forces, where:

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(i) That military commander or person either knew or, owing to

the circumstances at the time, should have known that the
forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary
and reasonable measures within his or her power to prevent or
repress their commission or to submit the matter to the compe-
tent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described
in paragraph (a), a superior shall be criminally responsible for crimes
within the jurisdiction of the Court committed by subordinates under
his or her effective authority and control, as a result of his or her failure
to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded informa-
tion which clearly indicated, that the subordinates were com-
mitting or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective
responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable mea-
sures within his or her power to prevent or repress their com-
mission or to submit the matter to the competent authorities
for investigation and prosecution.
article 29
non-​a pplicability of statute of limitations
The crimes within the jurisdiction of the Court shall not be subject to any stat-
ute of limitations.
….
article 33
superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the Court has been com-
mitted by a person pursuant to an order of a Government or of a supe-
rior, whether military or civilian, shall not relieve that person of criminal
responsibility unless:
(a) The person was under a legal obligation to obey orders of the
Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes
against humanity are manifestly unlawful.
….

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article 126
entry into force
1. This Statute shall enter into force on the first day of the month after the
60th day following the date of the deposit of the 60th instrument of rati-
fication, acceptance, approval or accession with the Secretary-​General of
the United Nations.
….
article 127
withdrawal
1. A State Party may, by written notification addressed to the Secretary-​
General of the United Nations, withdraw from this Statute. The with-
drawal shall take effect one year after the date of receipt of the notifica-
tion, 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 with-
drawal 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.

2 Statement of the Prosecutor of the International Criminal Court,

Fatou Bensouda Concerning the Situation in the Republic of the
Philippines (2016)49
My Office is aware of worrying reported extra-​judicial killings of alleged drug
dealers and users in the Philippines, which may have led to over 3,000 deaths
in the past three months. I am deeply concerned about these alleged kill-
ings and the fact that public statements of high officials of the Republic of
the Philippines seem to condone such killings and further seem to encourage
State forces and civilians alike to continue targeting these individuals with
lethal force.
Extra-​judicial killings may fall under the jurisdiction of the International
Criminal Court (“icc” or “Court”) if they are committed as part of a widespread

49 13 October 2016, available at: https://​www.icc-​cpi.int/​Pages/​item.aspx?name=161013-​otp

-​stat-​php.

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or systematic attack against a civilian population pursuant to a State policy to

commit such an attack.
The Republic of the Philippines is a State Party to the icc and as such, the
Court has jurisdiction over genocide, crimes against humanity and war crimes
committed on the territory or by nationals of the Philippines since 1 November
2011, the date when the Statute entered into force in the Philippines.
Let me be clear: any person in the Philippines who incites or engages in acts
of mass violence including by ordering, requesting, encouraging or contribut-
ing, in any other manner, to the commission of crimes within the jurisdiction
of the icc is potentially liable to prosecution before the Court.
My Office, in accordance with its mandate under the Rome Statute, will be
closely following developments in the Philippines in the weeks to come and
record any instance of incitement or resort to violence with a view to assessing
whether a preliminary examination into the situation of the Philippines needs
to be opened.

3 Statement of the Prosecutor of the International Criminal Court,

Fatou Bensouda, on Opening Preliminary Examinations into the
Situations in the Philippines and in Venezuela (2018)50
Since 2016, I have closely followed the situations in the Republic of the
Philippines (“the Philippines”) and in the Bolivarian Republic of Venezuela
(“Venezuela”). Both countries are States Parties to the Rome Statute.
Following a careful, independent and impartial review of a number of
communications and reports documenting alleged crimes potentially fall-
ing within the jurisdiction of the International Criminal Court (“icc” or “the
Court”), I have decided to open a preliminary examination into each situation.
The preliminary examination of the situation in the Philippines will anal-
yse crimes allegedly committed in this State Party since at least 1 July 2016, in
the context of the “war on drugs” campaign launched by the Government of
the Philippines. Specifically, it has been alleged that since 1 July 2016, thou-
sands of persons have been killed for reasons related to their alleged involve-
ment in illegal drug use or dealing. While some of such killings have reportedly
occurred in the context of clashes between or within gangs, it is alleged that
many of the reported incidents involved extra-​judicial killings in the course of
police anti-​drug operations.
….

50 08 February 2018, available at: https://​www.icc-​cpi.int/​Pages/​item.aspx?name=180208

-​otp-​stat.

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International Criminal Law 439

Under the Rome Statute, national jurisdictions have the primary responsi-
bility to investigate and prosecute those responsible for international crimes.
I emphasise that a preliminary examination is not an investigation but a pro-
cess of examining the information available in order to reach a fully informed
determination on whether there is a reasonable basis to proceed with an inves-
tigation pursuant to the criteria established by the Rome Statute. Specifically,
under article 53(1) of the Rome Statute, I, as Prosecutor, must consider issues
of jurisdiction, admissibility and the interests of justice in making this
determination.
In conformity with the complementarity principle, which is a cornerstone
of the Rome Statute legal system, and within the framework of each prelim-
inary examination, my Office will be engaging with the national authorities
concerned with a view to discussing and assessing any relevant investigation
and prosecution at the national level.
In the independent and impartial exercise of its mandate, my Office will
also give consideration to all submissions and views conveyed to it during the
course of each preliminary examination, strictly guided by the requirements
of the Rome Statute.
There are no statutory timelines on the length of a preliminary examination.
Depending on the facts and circumstances of each situation, I will decide
whether to initiate an investigation, subject to judicial review as appropriate;
continue to collect information to establish a sufficient factual and legal basis
to render a determination; or decline to initiate an investigation if there is no
reasonable basis to proceed.

4 Philippine Withdrawal from the Rome Statute (2018)51

The Government of the Republic of the Philippines has the honor to inform
the Secretary-​General, in his capacity as depositary of the Rome Statute of
the International Criminal Court, of its decision to withdraw from the Rome
Statute of the International Criminal Court in accordance with the relevant
provisions of the Statute.
The Philippines assures the community of nations that the Philippine
Government continues to be guided by the rule of law embodied in its
Constitution, which also enshrines the country’s long-​standing tradition of
upholding human rights.

51 Depositary Notification c.n.530.2011.treaties-​

3 of 30 August 2011 (Ratification:
Philippines) (17 March 2018).

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The Government affirms its commitment to fight against impunity for atroc-
ity crimes, notwithstanding its withdrawal from the Rome Statute, especially
since the Philippines has a national legislation punishing atrocity crimes. The
Government remains resolute in effecting its principal responsibility to ensure
the long-​term safety of the nation in order to promote inclusive national devel-
opment and secure a decent and dignified life for all.
The decision to withdraw is the Philippines’ principled stand against those
who politicize and weaponize human rights, even as its independent and well-​
functioning organs and agencies continue to exercise jurisdiction over com-
plaints, issues, problems and concerns arising from its efforts to protect its
people.
….
The action shall take effect for the Philippines on 17 March 2019 in accor-
dance with article 127 (1) which reads as follows:

A State Party may, by written notification addressed to the Secretary-​

General of the United Nations, withdraw from this Statute. The with-
drawal shall take effect one year after the date of receipt of the notifica-
tion, unless the notification specifies a later date.

5 icc Statement on The Philippines’ Notice of Withdrawal: State

Participation in Rome Statute System Essential to International
Rule of Law (2018)52
Yesterday evening, 19 March 2018, the International Criminal Court (“icc” or
“Court”) was officially notified by the United Nations that the Republic of the
Philippines had on 17 March 2018 deposited a written notification of with-
drawal from the Rome Statute, the Court’s founding treaty, with the United
Nations Secretary-​General as the depositary of the Statute. The Court regrets
this development and encourages the Philippines to remain part of the icc
family.
Withdrawing from the Rome Statute is a sovereign decision, which is sub-
ject to the provisions of article 127 of that Statute. A withdrawal becomes effec-
tive one year after the deposit of notice of withdrawal to the United Nations
Secretary-​General. A withdrawal has no impact on on-​going proceedings or
any matter which was already under consideration by the Court prior to the
date on which the withdrawal became effective; nor on the status of any judge
already serving at the Court.

52 20 March 2018, available at: https://​www.icc-​cpi.int/​Pages/​item.aspx?name=pr1371.

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As indicated recently in the icc Pre-​trial Chamber decision authorising

the opening of an investigation in relation to the situation in Burundi, the icc
retains its jurisdiction over crimes committed during the time in which the
State was party to the Statute and may exercise this jurisdiction over these
crimes even after the withdrawal becomes effective.
The Court wishes to reaffirm that the participation of States in the Rome
Statute and their continued support for the icc in the discharge of its indepen-
dent and impartial mandate is essential to global efforts to ensure accountabil-
ity and strengthen the international rule of law.
….
Should, at the conclusion of the preliminary examination process, the
Prosecutor decide to proceed with an investigation, authorisation from a Pre-​
Trial Chamber of the Court would be required. The Court’s judges would then
make an independent assessment as to whether the statutory criteria for the
opening of an investigation are met.

6 icc Prosecutor’s Request for Authorization to Investigate the

Situation in the Philippines53
1. Pursuant to article 15(3) of the Rome Statute (“Statute”), the Prosecution
hereby requests authorisation to open an investigation into the Situation in
the Republic of the Philippines (“Philippines”) between 1 November 2011 and
16 March 2019.
2. The Prosecution submits that there is a reasonable basis to believe that
the Crime Against Humanity of Murder was committed from at least 1 July 2016
to 16 March 2019 in the context of the Philippine government’s “war on drugs”
(“WoD”) campaign. Information obtained by the Prosecution suggests that
state actors, primarily members of the Philippine security forces, killed thou-
sands of suspected drug users and other civilians during official law enforce-
ment operations. Markedly similar crimes were committed outside official
police operations, reportedly by so-​called “vigilantes”, although information
suggests that some vigilantes were in fact police officers, while others were
private citizens recruited, coordinated, and paid by police to kill civilians. The
total number of civilians killed in connection with the WoD between July 2016
and March 2019 appears to be between 12,000 and 30,000.
3. These extrajudicial killings, perpetrated across the Philippines, appear
to have been committed pursuant to an official State policy of the Philippine

53 Situation in the Republic of the Philippines, Public redacted version of “Request for authori-
sation of an investigation pursuant to article 15(3)”, 24 May 2021, icc-​01/​21-​7-​s ecret-​Exp, at
https://​www.icc-​cpi.int/​Pages/​record.aspx?docNo=ICC-​01/​21-​7-​Red.

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government. Police and other government officials planned, ordered, and

sometimes directly perpetrated extrajudicial killings. They paid police officers
and vigilantes bounties for extrajudicial killings. State officials at the highest
levels of government also spoke publicly and repeatedly in support of extra-
judicial killings, and created a culture of impunity for those who commit-
ted them.
4. The same types of actors also allegedly committed strikingly similar
crimes in the city and region of Davao (“Davao”), starting in 1988 and continu-
ing through 2016. Given the similarities between those killings and the nation-
wide WoD killings from July 2016 to March 2019, and the overlap of individu-
als involved during both periods, the Prosecution requests that the 2011-​2016
events in Davao be included within the requested investigation.
5. The Court has jurisdiction over these crimes. While the Philippines’ with-
drawal from the Statute took effect on 17 March 2019, the Court retains juris-
diction with respect to alleged crimes that occurred on the territory of the
Philippines while it was a State Party, from 1 November 2011 up to and includ-
ing 16 March 2019.
….

iii There Is a Reasonable Basis to Believe That Crimes within the

Jurisdiction of the Court Have Been Committed

C Places, Time Period, and Persons or Groups Involved

….

2 Time Period of Alleged Crimes

79. The alleged crimes on which the Prosecution has focused its analysis began
around 1 July 2016, immediately after President Duterte took power and pub-
licly stated that he would kill suspected drug dealers and addicts, when the
pnp issued cmc No. 16-​2016, launching Project “Double Barrel” and the WoD
campaign. The alleged crimes continued through (and beyond) 16 March 2019.
80. These alleged crimes fall within the Court’s jurisdiction ratione temporis,
because the Philippines deposited its instrument of ratification of the Rome
Statute on 30 August 2011, and the Statute entered into force for the Philippines
on 1 November 2011, in accordance with article 126(1) of the Statute. On 17
March 2018, the Government of the Philippines deposited a written noti-
fication of withdrawal from the Statute with the UN Secretary-​General, and
in accordance with article 127, the withdrawal took effect on 17 March 2019.

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While the relevant crimes appear to have continued after this date, the alleged
crimes identified in this Request are limited to those during the period when
the Philippines was a State Party to the Statute.
81. In the Burundi situation, Pre-​Trial Chamber iii held that a State Party’s
withdrawal from the Rome Statute does not affect the Court’s exercise of juris-
diction over crimes committed prior to the effective date of the withdrawal.
This conclusion was recently confirmed by Pre-​Trial Chamber ii in the Abd-​
Al-​Rahman case. The Court’s exercise of such jurisdiction, moreover, is not
subject to any time limit, particularly since the preliminary examination here
commenced prior to the Philippines’ withdrawal.
….

D Contextual Elements of Murder as a Crime against Humanity

88. There is a reasonable basis to believe that the alleged conduct was commit-
ted as part of a widespread and systematic attack directed against a civilian
population pursuant to or in furtherance of a State policy.
….

3 Pursuant to or in Furtherance of a State or Organisational Policy

93. The requirement of a “State or organisational policy” ensures that an attack
against the civilian population has a “collective” dimension. A policy may con-
sist of a pre-​established design or plan, but may also crystallise and develop
only as actions are undertaken by the perpetrators. It need not be bureaucratic,
formalised, or precise, and may be implicit. In general, it may be inferred from
the manner in which relevant acts occur.
94. The information available to the Prosecution provides a reasonable
basis to believe that the killings described above were carried out pursuant
to a State policy to kill suspected drug users and sellers and to instigate mem-
bers of the public to carry out such killings (“WoD policy”). While WoD oper-
ations involved various legitimate activities (such as arrests), they have also
reportedly encompassed the intentional extrajudicial killings of thousands of
people.
….
99. Following the launch of the WoD campaign with cmc No. 16-​2016, there
was a marked increase in killings of alleged drug personalities. There also
appears to be a correlation between the points when the WoD campaign was
suspended and recommenced and the peaks of killings throughout the period
examined.

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100. Finally, there is a clear pattern of violence directed at the targeted

population, with a general modus operandi and an apparent pattern of seek-
ing to conceal the unlawful nature of the killing (for example, by planting
evidence and falsifying reports). These commonalities exclude the probabil-
ity that violence inflicted on suspected drug users and dealers occurred ran-
domly or was perpetrated by isolated or uncoordinated individuals acting on
their own.

b Public Statements by President Duterte and Other High-​Level Officials

101. The plethora of public statements made by Duterte and other Philippine
government officials encouraging, supporting and, in certain instances, urging
the public to kill suspected drug users and dealers also indicate a State policy
to attack civilians.
102. Duterte already used a distinctive rhetoric as Mayor of Davao City (1988-​
1998, 2001-​2010, and 2013-​2016), declaring criminals to be “legitimate target(s)
of assassination” and announcing that he maintained order in Davao by killing
criminals: “Kill ‘em all”. He ran his presidential campaign on an anti-​drugs and
crime platform, drawing on his reputation for having been “tough” on drugs
and crime as Mayor of Davao and telling reporters he had killed “around 1,700”
people. Duterte warned that, should he become President, the number of
criminal suspects killed “will become 100,000”.
103. Duterte promised to empower security forces to “shoot to kill” those who
resisted arrest. During a presidential debate in February 2016, Duterte report-
edly said, “If I become president, it would be bloody because we’ll order the
killing of all criminals”. At a campaign rally in March 2016, he said: “Kill them
all” [...] “When I become president, I’ll order the police and the military to find
these people and kill them”. Duterte also reportedly outlined his plan to news
media: “I say let’s kill five criminals every week, so they will be eliminated.”
104. As President-​elect (from 9 May to 30 June 2016), Duterte continued
to threaten to “kill” those involved in the illegal drug trade: He vowed to wipe
out crime in six months by killing criminals and drug dealers and promised
to allow police to shoot people involved in organised crime. In a nationally
televised speech on 4 June 2016, Duterte reportedly urged citizens with guns
to shoot and kill drug dealers who resist arrest or fight back: “Please feel free to
call us, the police, or do it yourself if you have the gun –​you have my support”.
Duterte warned, “If you’re still into drugs, I will kill you, don’t take this as a joke.
I'm not trying to make you laugh, son of a bitch, I will really kill you”.
105. Other individuals who would go on to become high-​level officials in
the Duterte regime made similar comments prior to Duterte taking office, sug-
gesting planning of the WoD policy. Before being announced as the Duterte

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administration’s first National Police Chief, Dela Rosa explained the “focus” of
the forthcoming WoD policy “will be killing those involved in drugs. There will
be deaths in illegal drug trade. So the drug lords out there, watch out, because
I am going after you”. After he was announced as the incoming pnp Chief, Dela
Rosa threatened that police involved in the distribution of illegal drugs “will
be killed”.
106. Immediately after taking office, Duterte made public statements outlin-
ing his policy to suppress or stop the sale and use of drugs in the Philippines,
including through the elimination of those suspected of being involved in the
illegal drug trade. In a speech on the very first day of his presidency, Duterte
urged the crowd: “If you know of any addicts, go ahead and kill them your-
self as getting their parents to do it would be too painful”. On 29 September
2016, Duterte told reporters that “[t]‌here are 3 million drug addicts (in the
Philippines). I’d be happy to slaughter them”. Duterte reportedly said, “If
Germany had Hitler, the Philippines would have...” and pointed to himself. In
2017, speaking about drugs and “narcopoliticians”, Duterte said, “Do not f***
with me. I will kill you.”
107. As President, Duterte has made speeches to police and military per-
sonnel encouraging them to kill suspected criminals, clarifying that, “When
I said that you go and destroy the drug industry, destroying means destroying
including human life”. Duterte also announced that he had issued “shoot-​to-​
kill” orders for a list of publicly identified politicians alleged to be involved
in illegal drug activities. Other senior members of the Duterte administration
have employed similar rhetoric in apparent attempts to incite violence against
those involved with drugs, including referring to drug users and dealers as ani-
mals, fish food, or slaves in apparent attempts to dehumanise them. For exam-
ple, former Justice Secretary Vitaliano Aguirre ii told reporters that, “[t]‌he
criminals, the drug lords, drug pushers, they are not humanity”.
…

c Financial Incentives and Pressure on Physical Perpetrators to

Commit Killings
109. The available information indicates that state officials have offered and
granted incentives such as cash payments, promotions, or awards for WoD-​
related killings, and applied other forms of pressure to encourage perpetrators
to carry out killings.
110. As early as his presidential victory party, Duterte was reported to have
offered bounties to police and military for bringing in drug lords “dead or
alive”, promising more for a dead than a live drug lord. In August 2018, Duterte
announced a 5 million Philippine peso bounty per head for any police officer

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involved in the drug trade or other illegal activities, again promising a higher
amount for a killing than an arrest and signalling a policy which encompasses
killings.
….

d Failure to Take Steps to Investigate or Prosecute and Promises of

Immunity
114. The existence of this policy can be further inferred from the apparent
approval by Philippine authorities of alleged WoD killings. The Duterte admin-
istration has listed certain WoD killings under its official “accomplishments”,
and officials have publically described the WoD as “successful”. After 32 drug
personalities were killed during a police operation in Bulacan, Duterte stated,
“They say that people died a while ago in Bulacan, 32, in a massive raid. That's
good. If we can just kill about another 32 everyday then maybe we can reduce
the —​what ails this country” ”
115. The official endorsement of WoD killings can be inferred from reported
promises to shield perpetrators from accountability. In a 2016 speech, Duterte
said that where police are involved in a shoot-​out, “I have to believe the story of
the police, for simply, they are my subordinates and I am ultimately responsible
for their deeds [...] if you do your duty, do not worry about cases, I will protect
you, believe me [...] if there’s somebody who will go to jail, it’s me. I will assume
full, legal responsibility”. In a speech to the 10th Infantry Division, Duterte
announced that, “Massacre 100 people, I’ll pardon all of you [...] plus a promo-
tion to boot” [...] “For as long as I am president, nobody but nobody –​no mili-
tary man or policeman will go to prison because they performed their duties”.
….
117. This rhetoric is reflected in the Philippine authorities’ failure to take
meaningful steps to investigate or prosecute perpetrators of WoD killings. It
appears that only a handful of “token” cases –​focused on low-​level, physical
perpetrators –​have proceeded to trial. Only one case, concerning the noto-
rious murder of Kian Delos Santos, has proceeded to judgment. There is no
information to indicate that any individual has been investigated for ordering,
planning, or instigating any killings. Senior or commanding officers impli-
cated in killings have been only temporarily relieved of duty and later moved
or even promoted. ngo s have reported that overall a “climate of impunity”
has prevailed. ohchr similarly found that “[d]‌espite credible allegations of
widespread and systematic extrajudicial killings in the context of the cam-
paign against illegal drugs, there has been near impunity for such violations.”
118. The minimal prospects for accountability in the Philippines for alleged
WoD crimes are underscored by the two Senate Committee hearings on

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International Criminal Law 447

the WoD concluding “with accusations of whitewashing”, as well as Duterte

refusing access to the territory of the Philippines for investigations by the UN
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. On 30
June 2020, in the context of the opening of the fourty-​fourth session of the UN
Human Rights Council, Justice Secretary Menardo Guevarra announced the
creation of an inter-​agency committee, purportedly established to review over
5,000 anti-​drug operations which resulted in killings, but little information is
available regarding its actual work or output. On 24 February 2021, Guevarra
announced that the committee’s initial findings confirm irregularities in the
police’s handling of WoD killings, including failures to observe standard pro-
cedures for handling crime scene evidence. The panel has reportedly referred
cases for disciplinary action and criminal investigation; however, to date there
appear to have been no further criminal prosecutions as a result.
….

4 Widespread and Systematic Nature of the Attack

120. The available information provides a reasonable basis to believe that the
attack was carried out on a large scale and frequent basis, targeting and victi-
mising a significant number of civilians in regions throughout the Philippines
over a protracted period of time. According to available information, from 1 July
2016 until 16 March 2019, between 12,000 and at least 20,000 killings were com-
mitted in connection with the WoD campaign, of which over 5,300 are directly
attributable to state actors. The crimes occurred over a large geographic area,
with all 17 regions of the country affected to varying extents. Moreover, the
commission of the acts –​particularly in certain periods –​took place with a
high intensity. For example, during the first one hundred days in which the
WoD campaign was implemented, according to some accounts, more than
3,000 individuals were killed in connection with the campaign. Similarly, it
was reported that in the first two years of the WoD campaign an average of 33
people were killed daily, according to figures provided by the pnp itself.

…
7 Office of the Prosecutor, Report on Preliminary Examination
Activities, Republic of the Philippines (2019); Re South China Sea54
44. In early 2019, the Office received a communication alleging that Chinese
officials have committed crimes against humanity within the Court’s

54 05 December 2019, at 14–​ 16, available at: https://​www.icc-​cpi.int/​Pages/​item

.aspx?name=191205-​rep-​otp-​PE.

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448  Chapter 10

jurisdiction in connection with certain activities committed in particu-

lar areas of the South China Sea. The communication alleged that China
has (i) intentionally and forcibly excluded Philippine nationals from
making use of the resources in certain relevant areas of the sea (such
as blocking Filipino fishermen’s access to traditional fishing grounds at
Scarborough Shoal); (ii) engaged in massive illegal reclamation and arti-
ficial island-​building in the Spratly Islands, causing significant damage
to the marine life in the area; and (iii) tolerated and actively supported
illegal and harmful fishing practices by Chinese nationals, which like-
wise has caused serious environmental damage. The communication
alleged that such conduct not only violates the law of sea but gives rise
to crimes against humanity, namely other inhumane acts and persecu-
tion under articles 7(1)(k) and 7(1)(h) of the Statute. The communica-
tion alleged that the crimes fall within the Court’s territorial jurisdiction
as they occurred in particular within Philippines’ exclusive economic
zone (“eez”) and continental shelf, including in Scarborough Shoal and
the Kalayaan Island Group, and that the acts occurred within the period
when the Philippines was a State Party to the Statute.
45. With respect to these allegations, the focus of the Office’s analysis pri-
marily turned on an initial threshold issue of whether the precondi-
tions to the exercise of the Court’s jurisdiction are met: i.e. whether a
State’s eez falls within the scope of its territory under article 12(2)(a) of
the Statute.
46. The crimes referred to in the communication were allegedly committed
by Chinese nationals in the territory of the Philippines. China is not a
State Party to the Rome Statute. Accordingly, the Court lacks personal
jurisdiction. However, the Court may exercise territorial jurisdiction
over the alleged crimes to the extent that they may have been commit-
ted in Philippine territory during the period when the Philippines was
a State Party, namely 1 November 2011 until 16 March 2019. The informa-
tion available confirms that the alleged conduct in question occurred in
areas that are outside of the Philippines’ territorial sea (i.e., in areas far-
ther than 12 nautical miles from its coast), but nonetheless within areas
that may be considered to fall within its declared eez. In this context,
the Office’s analysis has been conducted ad arguendo without taking a
position on the different disputed claims with respect to these areas.
However, the Office has concluded that a State’s eez (and continental
shelf) cannot be considered to comprise part of its ‘territory’ for the
purpose of article 12(2)(a) of the Statute.

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International Criminal Law 449

47. Article 12(2)(a) of the Statute provides that the Court may exercise its
jurisdiction in two circumstances: (i) if the “State on the territory of
which the conduct in question occurred” is a State Party to the Statute,
or (ii) if the “crime was committed” on board a vessel or aircraft regis-
tered in a State Party. In the present situation, only the first scenario is
potentially applicable. While the Statute does not provide a definition
of the term, it can be concluded that the ‘territory’ of a State, as used in
article 12(2)(a), includes those areas under the sovereignty of the State,
namely its land mass, internal waters, territorial sea, and the airspace
above such areas. Such interpretation of the notion of territory is con-
sistent with the meaning of the term under international law.
48. Notably, maritime zones beyond the territorial sea, such as the eez and
continental shelf, are not considered to comprise part of a State’s terri-
tory under international law. This follows from the consideration that
under international law, State territory refers to geographic areas under
the sovereign power of a State—​i.e., the areas over which a State exer-
cises exclusive and complete authority. As expressed in the Island of
Palmas case, “sovereignty in relation to a portion of the surface of the
globe is the legal condition necessary for the inclusion of such portion
in the territory of any particular state.” Coastal States, however, do not
have sovereignty over maritime zones beyond the territorial sea, which
essentially marks the seaward frontier of States. Instead, Coastal States
may possess only a more limited set of ‘sovereign rights’ in respect of
certain maritime areas beyond the territorial sea, such as the eez and
continental shelf.
49. Under the law of the sea, a distinction is made in this regard between
‘sovereignty’ and ‘sovereign rights’, in terms of what powers a State may
exercise in a particular maritime zone. In the context of the law of the
sea, the sovereignty of a State implies its exclusive legal authority over
all its internal waters and territorial sea (and where applicable, the
archipelagic waters). By contrast, in maritime zones beyond the terri-
torial sea (areas sometimes referred to as ‘international waters’), inter-
national law confers certain prerogatives on a Coastal State (and to the
exclusion of others), such as fiscal, immigration, sanitary and customs
enforcement rights in the contiguous zone and natural resource-​related
rights in the eez and the continental shelf. Such ‘sovereign rights’ are
limited to specific purposes, as enumerated in UN Convention on the
Law of the Sea (“unclos”), but do not permit the State to exercise full
powers over such areas, as sovereignty might allow.

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450  Chapter 10

50. Overall, in the Office’s view, the eez (and continental shelf) cannot be
equated to territory of a State within the meaning of article 12 of the
Statute, given that the term ‘territory’ of a State in this provision should
be interpreted as being limited to the geographical space over which a
State enjoys territorial sovereignty (i.e., its landmass, internal waters, ter-
ritorial sea and the airspace above such areas). Criminal conduct which
takes place in the eez and continental shelf is thus in principle outside
of the territory of a Coastal State and as such, is not encompassed under
article 12(2)(a) of the Statute (unless such conduct otherwise was com-
mitted on board a vessel registered in a State Party). This circumstance
is not altered by the fact that certain rights of the Coastal State are rec-
ognised in these areas. While unclos confers functional jurisdiction to
the State for particular purposes in such areas, this conferral does not
have the effect of extending the scope of the relevant State’s territory
but instead only enables the State to exercise its authority outside its
territory (i.e., extraterritorially) in certain defined circumstances.
51. In the present situation, the conduct alleged in the communication
received did not occur in the territory of the Philippines, but rather in
areas outside its territory, purportedly in its eez and continental shelf.
Further, while article 12(2)(a) also extends the Court’s jurisdiction to
crimes committed on board vessels registered in a State Party, this condi-
tion likewise is not met, given that the alleged crimes were purportedly
committed on board Chinese registered vessels. Finally, as previously
highlighted, the remaining basis for the exercise jurisdiction (active
personality) under article 12(2)(b) is also not met, given the Chinese
nationality of the alleged perpetrators in question. Accordingly, the
Office concluded that the crimes allegedly committed do not fall within
the territorial or otherwise personal jurisdiction of the Court.

B The Rome Statute before the Philippine Supreme Court

1 Pimentel v. Executive Secretary (2005)55
This is a petition for mandamus filed by petitioners to compel the Office of
the Executive Secretary and the Department of Foreign Affairs to transmit the
signed copy of the Rome Statute of the International Criminal Court to the
Senate of the Philippines for its concurrence in accordance with Section 21,
Article vii of the 1987 Constitution.
…

55 g.r. No. 158088, 06 July 2005.

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International Criminal Law 451

It is the theory of the petitioners that ratification of a treaty, under both

domestic law and international law, is a function of the Senate. Hence, it is
the duty of the executive department to transmit the signed copy of the Rome
Statute to the Senate to allow it to exercise its discretion with respect to rat-
ification of treaties. Moreover, petitioners submit that the Philippines has a
ministerial duty to ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the Law of
Treaties enjoining the states to refrain from acts which would defeat the object
and purpose of a treaty when they have signed the treaty prior to ratification
unless they have made their intention clear not to become parties to the treaty.
…
The core issue in this petition for mandamus is whether the Executive
Secretary and the Department of Foreign Affairs have a ministerial duty to
transmit to the Senate the copy of the Rome Statute signed by a member of
the Philippine Mission to the United Nations even without the signature of the
President.
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 coun-
try’s sole representative with foreign nations. As the chief architect of foreign
policy, the President acts as the country’s mouthpiece with respect to inter-
national 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
…
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 rat-
ification 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 bur-
dened 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

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452  Chapter 10

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 justi-
fied in taking offense.

2 Bayan Muna v. Romulo (2011) 56

This petition for certiorari, mandamus and prohibition under Rule 65 assails
and seeks to nullify the Non-​Surrender Agreement concluded by and between
the Republic of the Philippines (rp) and the United States of America (USA).
…
Having a key determinative bearing on this case is the Rome Statute estab-
lishing the International Criminal Court (icc) with “the power to exercise its
jurisdiction over persons for the most serious crimes of international concern …
and shall be complementary to the national criminal jurisdictions.” The serious
crimes adverted to cover those considered grave under international law, such
as genocide, crimes against humanity, war crimes, and crimes of aggression.
….
rp-​u s non-​s urrender agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy
Note No. 0470 to the Department of Foreign Affairs (dfa) proposing the terms
of the non-​surrender bilateral agreement (Agreement, hereinafter) between
the USA and the rp.
Via Exchange of Notes No. bfo-​028-​03 dated May 13, 2003 [citation omit-
ted], the rp, represented by then dfa Secretary Ople, agreed with and accepted
the US proposals embodied under the US Embassy Note adverted to and put
in effect the Agreement with the US government. In esse, the Agreement aims
to protect what it refers to and defines as “persons” of the rp and US from
frivolous and harassment suits that might be brought against them in interna-
tional tribunals. It is reflective of the increasing pace of the strategic security
and defense partnership between the two countries. As of May 2, 2003, similar
bilateral agreements have been effected by and between the US and 33 other
countries.

56 g.r. No. 159618, 01 February 2011.

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International Criminal Law 453

The Agreement pertinently provides as follows:

…
2. Persons of one Party present in the territory of the other shall not, absent
the express consent of the first Party,
(a) be surrendered or transferred by any means to any international
tribunal for any purpose, unless such tribunal has been estab-
lished by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity
or third country, or expelled to a third country, for the purpose of
surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.
….
4. When the [Philippines] extradites, surrenders, or otherwise transfers a
person of the [U.S.] to a third country, the [Philippines] will not agree
to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of
the [US].
…
In response to a query of then Solicitor General Alfredo L. Benipayo on
the status of the non-​surrender agreement [under U.S. law], Ambassador
Ricciardone replied in his letter of October 28, 2003 that the exchange of dip-
lomatic notes constituted a legally binding agreement under international law;
and that, under U.S. law, the said agreement did not require the advice and
consent of the US Senate.
…
the agreement not in contravention of the rome statute
It is the petitioner’s next contention that the Agreement undermines the
establishment of the icc and is null and void insofar as it unduly restricts
the icc’s jurisdiction and infringes upon the effectivity of the Rome Statute.
Petitioner posits that the Agreement was constituted solely for the purpose of
providing individuals or groups of individuals with immunity from the juris-
diction of the icc; and such grant of immunity through non-​surrender agree-
ments allegedly does not legitimately fall within the scope of Art. 98 of the
Rome Statute. It concludes that state parties with non-​surrender agreements
are prevented from meeting their obligations under the Rome Statute, thereby
constituting a breach of Arts. 27, 86, 89 and 90 thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute
is to ensure that those responsible for the worst possible crimes are brought to
justice in all cases, primarily by states, but as a last resort, by the icc; thus, any

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agreement—​like the non-​surrender agreement—​that precludes the icc from

exercising its complementary function of acting when a state is unable to or
unwilling to do so, defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the dfa Secretary, as represen-
tatives of a signatory of the Rome Statute, are obliged by the imperatives of
good faith to refrain from performing acts that substantially devalue the pur-
pose and object of the Statute, as signed. Adding a nullifying ingredient to the
Agreement, according to petitioner, is the fact that it has an immoral purpose
or is otherwise at variance with a priorly executed treaty.
Contrary to petitioner’s pretense, 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. As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the icc is to “be
complementary to national criminal jurisdictions [of the signatory states].” ….
….
Significantly, the sixth preambular paragraph of the Rome Statute declares
that “it is the duty of every State to exercise its criminal jurisdiction over
those responsible for international crimes.” This provision indicates that pri-
mary jurisdiction over the so-​called international crimes rests, at the first
instance, with the state where the crime was committed; secondarily, with
the icc in appropriate situations contemplated under Art. 17, par. 1 of the
Rome Statute.
Of particular note is the application of the principle of ne bis in idem under
par. 3 of Art. 20, Rome Statute, which again underscores the primacy of the
jurisdiction of a state vis-​a-​vis that of the icc. As far as relevant, the provi-
sion states that “no person who has been tried by another court for conduct …
[constituting crimes within its jurisdiction] shall be tried by the [International
Criminal] Court with respect to the same conduct . …”
The foregoing provisions of the Rome Statute, taken collectively, argue
against the idea of jurisdictional conflict between the Philippines, as party to
the non-​surrender agreement, and the icc; or the idea of the Agreement sub-
stantially impairing the value of the rp’s undertaking under the Rome Statute.
Ignoring for a while the fact that the rp signed the Rome Statute ahead of the
Agreement, it is abundantly clear to us that the Rome Statute expressly recog-
nizes the primary jurisdiction of states, like the rp, over serious crimes com-
mitted within their respective borders, the complementary jurisdiction of the
icc coming into play only when the signatory states are unwilling or unable to
prosecute.

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International Criminal Law 455

Given the above consideration, petitioner’s suggestion—​that the rp, by

entering into the Agreement, violated its duty required by the imperatives
of good faith and breached its commitment under the Vienna Convention to
refrain from performing any act tending to impair the value of a treaty, e.g., the
Rome Statute—​has to be rejected outright. For nothing in the provisions of
the Agreement, in relation to the Rome Statute, tends to diminish the efficacy
of the Statute, let alone defeats the purpose of the icc. Lest it be overlooked,
the Rome Statute contains a proviso that enjoins the icc from seeking the sur-
render of an erring person, should the process require the requested state to
perform an act that would violate some international agreement it has entered
into. We refer to Art. 98 (2) of the Rome Statute, which reads:

article 98
Cooperation with respect to waiver of immunity and consent to
surrender
….

2. The Court may not proceed with a request for surrender which would
require the requested State to act inconsistently with its obligations
under international agreements pursuant to which the consent of a
sending State is required to surrender a person of that State to the
Court, unless the Court can first obtain the cooperation of the send-
ing State for the giving of consent for the surrender.
Moreover, 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; whereas a State-​Party, on the
other hand, is legally obliged to follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that 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.
….
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic
Act No. (ra) 9851, otherwise known as the “Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity.” Sec. 17 of ra 9851, particularly the second paragraph thereof,
provides:

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Section 17. Jurisdiction.—​…

In the interest of justice, the relevant Philippine authorities may dis-
pense with the investigation or prosecution of a crime punishable under
this Act if another court or international tribunal is already conducting
the investigation or undertaking the prosecution of such crime. Instead,
the authorities may surrender or extradite suspected or accused persons in
the Philippines to the appropriate international court, if any, or to another
State pursuant to the applicable extradition laws and treaties.

A view is advanced that the Agreement amends existing municipal laws on

the State’s obligation in relation to grave crimes against the law of nations,
i.e., genocide, crimes against humanity and war crimes. Relying on the above-​
quoted statutory proviso, the view posits that the Philippine is required to sur-
render to the proper international tribunal those persons accused of the grave
crimes defined under ra 9851, if it does not exercise its primary jurisdiction to
prosecute them.
…
Posing the situation of a US national under prosecution by an interna-
tional tribunal for any crime under ra 9851, the Philippines has the option
to surrender such US national to the international tribunal if it decides not
to prosecute such US national here. The view asserts that this option of the
Philippines under Sec. 17 of ra 9851 is not subject to the consent of the US,
and any derogation of Sec. 17 of ra 9851, such as requiring the consent of the
US before the Philippines can exercise such option, requires an amendatory
law. In line with this scenario, the view strongly argues that the Agreement
prevents the Philippines—​without the consent of the US—​from surrendering
to any international tribunal US nationals accused of crimes covered by ra
9851, and, thus, in effect amends Sec. 17 of ra 9851. Consequently, the view is
strongly impressed that the Agreement cannot be embodied in a simple exec-
utive agreement in the form of an exchange of notes but must be implemented
through an extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. ii of the
Constitution, where the Philippines adopts, as a national policy, the “gener-
ally accepted principles of international law as part of the law of the land,”
the Court is further impressed to perceive the Rome Statute as declaratory of
customary international law. In other words, the Statute embodies principles
of law which constitute customary international law or custom and for which
reason it assumes the status of an enforceable domestic law in the context
of the aforecited constitutional provision. As a corollary, it is argued that any
derogation from the Rome Statute principles cannot be undertaken via a mere

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executive agreement, which, as an exclusive act of the executive branch, can

only implement, but cannot amend or repeal, an existing law. The Agreement,
so the argument goes, seeks to frustrate the objects of the principles of law or
alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced consid-
ers the Agreement inefficacious, unless it is embodied in a treaty duly ratified
with the concurrence of the Senate, the theory being that a Senate-​ratified
treaty partakes of the nature of a municipal law that can amend or supersede
another law, in this instance Sec. 17 of ra 9851 and the status of the Rome
Statute as constitutive of enforceable domestic law under Sec. 2, Art. ii of the
Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to ra 9851. For another, the
view does not clearly state what precise principles of law, if any, the Agreement
alters. And for a third, it does not demonstrate in the concrete how the
Agreement seeks to frustrate the objectives of the principles of law subsumed
in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the
Rome Statute as the former merely reinforces the primacy of the national juris-
diction of the US and the Philippines in prosecuting criminal offenses com-
mitted by their respective citizens and military personnel, among others. The
jurisdiction of the icc pursuant to the Rome Statute over high crimes indi-
cated thereat is clearly and unmistakably complementary to the national crim-
inal jurisdiction of the signatory states.

3 Bayan Muna v. Romulo, Carpio, J., Dissenting Opinion (2011)57

The rp-​u s Non-​Surrender Agreement [] violates existing municipal laws on
the Philippine State’s obligation to prosecute persons responsible for any of
the international crimes of genocide, war crimes and other crimes against
humanity. Being a mere executive agreement that is indisputably inferior
to municipal law, the Agreement cannot prevail over a prior or subsequent
municipal law inconsistent with it.
First, under existing municipal laws arising from the incorporation doctrine
in Section 2, Article ii of the Philippine Constitution, the State is required to
surrender to the proper international tribunal persons accused of grave inter-
national crimes, if the State itself does not exercise its primary jurisdiction to
prosecute such persons.

57 g.r. No. 159618, 01 February 2011.

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Second, and more importantly, Republic Act No. 9851 or the [ihl Law, infra
Ch. 10.D] requires that the rp-​u s Non-​Surrender Agreement, which is in der-
ogation of the duty of the Philippines to prosecute those accused of grave
international crimes, should be ratified as a treaty by the Senate before the
Agreement can take effect.
Section 2 of ra 9851 adopts as a State policy the following:
…

(e) The most serious crimes of concern to the international community

as a whole must not go unpunished and their effective prosecution must
be ensured by taking measures at the national level, in order to put an
end to impunity for the perpetrators of these crimes and thus contribute
to the prevention of such crimes, it being the duty of every State to exercise
its criminal jurisdiction over those responsible for international crimes.

To implement this State policy, Section 17 of ra 9851 provides:

Section 17. Jurisdiction.—​The State shall exercise jurisdiction over per-

sons, whether military or civilian, suspected or accused of a crime defined
and penalized in this Act, regardless of where the crime is committed,
provided, any one of the following conditions is met:
(a) The accused is a Filipino citizen;
(b) The accused, regardless of citizenship or residence, is present in the
Philippines; or
(c) The accused has committed the said crime against a Filipino citizen.

In the interest of justice, the relevant Philippine authorities may dis-

pense with the investigation or prosecution of a crime punishable under
this Act if another court or international tribunal is already conducting
the investigation or undertaking the prosecution of such crime. Instead,
the authorities may surrender or extradite suspected or accused persons in
the Philippines to the appropriate international court, if any, or to another
State pursuant to the applicable extradition laws and treaties.

[These] impose on the Philippines the “duty” to prosecute a person present in

the Philippines, “regardless of citizenship or residence” of such person, who is
accused of committing a crime under ra 9851 “regardless of where the crime
is committed.” The Philippines is expressly mandated by law to prosecute the
accused before its own courts.

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If the Philippines decides not to prosecute such accused, the Philippines

has only two options. First, it may surrender the accused to the “appropriate
international court” such as the International Criminal Court (icc). Or sec-
ond, it may surrender the accused to another State if such surrender is “pur-
suant to the applicable extradition laws and treaties.” Under the second option,
the Philippines must have an applicable extradition law with the other State,
or both the Philippines and the other State must be signatories to an appli-
cable treaty. Such applicable extradition law or treaty must not frustrate the
Philippine State policy, which embodies a generally accepted principle of
international law, that it is “the duty of every State to exercise its criminal juris-
diction over those responsible for international crimes.”
In any case, the Philippines can exercise either option only if “another court
or international tribunal is already conducting the investigation or undertaking
the prosecution of such crime.” In short, the Philippines should surrender the
accused to another State only if there is assurance or guarantee by the other
State that the accused will be prosecuted under the other State’s criminal jus-
tice system. This assurance or guarantee springs from the principle of inter-
national law that it is “the duty of every State to exercise its criminal jurisdiction
over those responsible for international crimes.”
There is at present no “applicable” extradition law or treaty allowing the sur-
render to the United States of U.S. nationals accused of crimes under ra 9851,
specifically, Crimes against International Humanitarian Law or War Crimes,
Genocide, and Other Crimes against Humanity.
The rp-​u s Extradition Treaty cannot be considered an applicable extradi-
tion law or treaty. Paragraph 1, Article 2 of the rp-​u s Extradition Treaty pro-
vides: “An offense shall be an extraditable offense if it is punishable under the
laws in both Contracting Parties . …”
[The Dissenting Opinion proceeds to discuss why the double criminality
principle in extradition law cannot be satisfied by the bia.]
The United States has not ratified the Rome Statute of International Criminal
Court (Rome Statute). While the Philippines has also not ratified the Rome
Statute, it has criminalized under ra 9851 all the acts defined in the Rome
Statute as Genocide, War Crimes and Other Crimes against Humanity. There is
no similar legislation in the United States.
….
The [bia] amends existing Philippine State policy as embodied in municipal
law arising from generally accepted principles of international law which form
part of the law of the land. The Agreement also runs counter to ra 9851 which
criminalized wholesale all acts defined as international crimes in the Rome
Statute, an international treaty which the Philippines has signed but has still

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to ratify. The Agreement frustrates the objectives of generally accepted prin-

ciples of international law embodied in the Rome Statute. Thus, considering
its nature, the Agreement should be embodied not in an executive agreement,
but in a treaty which, under the Philippine Constitution, shall be valid and
effective only if concurred in by at least two-​thirds of all the members of the
Senate.
[The Dissenting Opinion proceeds to discuss how the Rome Statute can give
rise to customary international law.]
Some customary international laws have been affirmed and embodied in
treaties and conventions. A treaty constitutes evidence of customary law if it
is declaratory of customary law, or if it is intended to codify customary law. ….
….
The Rome Statute of the International Criminal Court was adopted by 120
members of the United Nations (UN) on 17 July 1998. It entered into force on
1 July 2002, after 60 States became party to the Statute through ratification
or accession. The adoption of the Rome Statute fulfilled the international
community’s long-​time dream of creating a permanent international tribunal
to try serious international crimes. The Rome Statute, which established an
international criminal court and formally declared genocide, war crimes and
other crimes against humanity as serious international crimes, codified gener-
ally accepted principles of international law, including customary international
laws. The principles of law embodied in the Rome Statute were already gener-
ally accepted principles of international law even prior to the adoption of the
Statute. Subsequently, the Rome Statute itself has been widely accepted and,
as of November 2010, it has been ratified by 114 states, 113 of which are mem-
bers of the UN.
There are at present 192 members of the UN. Since 113 member states have
already ratified the Rome Statute, more than a majority of all the UN mem-
bers have now adopted the Rome Statute as part of their municipal laws. Thus,
the Rome Statute itself is generally accepted by the community of nations as
constituting a body of generally accepted principles of international law. The
principles of law found in the Rome Statute constitute generally accepted prin-
ciples of international law enforceable in the Philippines under the Philippine
Constitution. The principles of law embodied in the Rome Statute are binding
on the Philippines even if the Statute has yet to be ratified by the Philippine
Senate. In short, the principles of law enunciated in the Rome Statute are now
part of Philippine domestic law pursuant to Section 2, Article ii of the 1987
Philippine Constitution.
….

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International Criminal Law 461

It is a principle of international law that a person accused of genocide, war

crimes and other crimes against humanity shall be prosecuted by the interna-
tional community. A State where such a person may be found has the primary
jurisdiction to prosecute such person, regardless of nationality and where the
crime was committed. However, if a State does not exercise such primary juris-
diction, then such State has the obligation to turn over the accused to the interna-
tional tribunal vested with jurisdiction to try such person. This principle has been
codified in Section 2 (e) and Section 17 of ra 9851.
Moreover, Section 15 of ra 9851 has expressly adopted “[r]‌elevant and appli-
cable international human rights instruments” as sources of international law
in the application and interpretation of ra 9851, thus:

Section 15. Applicability of International Law.—​In the application and

interpretation of this Act, Philippine courts shall be guided by the fol-
lowing sources:
…

(e) The rules and principles of customary international law;

….
(g) Relevant and applicable international human rights instruments;
(h) Other relevant international treaties and conventions ratified or
acceded to by the Republic of the Philippines; ….

The Rome Statute is the most relevant and applicable international human
rights instrument in the application and interpretation of ra 9851. Section
15 (g) of ra 9851 authorizes the use of the Rome Statute as a source of inter-
national law even though the Philippines is not a party to the Rome Statute.
Section 15 (g) does not require ratification by the Philippines to such relevant
and applicable international human rights instruments. International human
rights instruments to which the Philippines is a party are governed by Section
15 (h), referring to treaties or conventions “ratified or acceded to” by the
Philippines, which constitute a different category of sources of international
law under Section 15 of ra 9851. Thus, Section 15 (g) and Section 15 (h) refer to
different instruments, the former to international human rights instruments
to which the Philippines is not a party, and the latter to international human
rights instruments to which the Philippines is a party. By mandate of Section
15 of ra 9851, both categories of instruments are sources of international law
in the application and interpretation of ra 9851.
…

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Clearly, the Agreement is in derogation of Article 89 (1) [Surrender of Persons

to the Court] of the Rome Statute. While Article 98 (2) …. allows for derogation
of Article 89 (1) if there is an international agreement between States allow-
ing such derogation, such international agreement, being in derogation of an
existing municipal law insofar as the Philippines is concerned, must be embod-
ied in a treaty and ratified by the Philippine Senate. Article 98 (2) does not ipso
facto allow a derogation of Article 89 (1), but requires a further act, that is, the
execution of an international agreement. Since such international agreement
is in derogation of Article 89 (1) of the Rome Statute and Section 17 of ra 8951,
such international agreement must be ratified by the Senate to become valid and
effective.
Incidentally, the rp-​u s Non-​Surrender Agreement allows the Philippines to
surrender, even without U.S. consent, a U.S. national accused of a crime under ra
9851 provided that the surrender is made to an “international tribunal … estab-
lished by the UN Security Council.” The United States agrees to this because it
has a veto power in the UN Security Council, a blocking power which it does
not have, and cannot have, in the International Criminal Court.
The International Criminal Court created under the Rome Statute was
designed to complement the efforts of states to prosecute their own citizens
domestically while ensuring that those who violate international law would
be brought to justice. A state is given a chance to exercise complementarity by
informing the icc of its choice to investigate and prosecute its own nationals
through its own domestic courts. Thus, the State has the primary jurisdiction to
investigate and prosecute its own nationals in its custody who may have com-
mitted the grave international crimes specified in the Rome Statute. Under the
same precept, Article 98 (2) of the Rome Statute allows the State of the accused
to act consistently with its obligations under international agreements, and
the icc “may not proceed with a request for surrender” which would require
such State to act otherwise. The icc steps in and assumes jurisdiction only if
the State having primary jurisdiction and custody of the accused refuses to ful-
fill its international duty to prosecute those responsible for grave international
crimes.

4 Pangilinan v. Cayetano58
[The Philippines withdrew from the Rome Statute after the icc Prosecutor
opened a preliminary examination of extrajudicial killings in the “war on

58 G.R. No. 238875/​G.R. No. 239483/​G.R. No. 240954 (dated 16 March 2021 but released on 21
July 2021), at https://​sc.judiciary.gov.ph/​20238/​.

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International Criminal Law 463

drugs” under President Rodrigo Roa Duterte. Petitioners argue that the
President needs Senate approval for both treaty ratification, as required by the
Constitution, and treaty withdrawal, on which the Constitution is silent.]
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 for-
eign policy may manifest our national interest.
Absent a clear and convincing showing of a breach of the Constitution or a
law, brought through an actual, live controversy and by a party that presents
direct, material, and substantial injury as a result of such breach, this Court
will stay its hand in declaring a diplomatic act as unconstitutional.
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 communica-
tion the following day, March 17, 2018.
Through these actions, the Philippines completed the requisite acts of with-
drawal. 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 acknowl-
edged 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. 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.
….
The Petitions are moot. They fail to present a persisting case or controversy
that impels this Court's review. In resolving constitutional issues, there must
be an “existing case or controversy that is appropriate or ripe for determina-
tion, not conjectural or anticipatory.”
….
Petitioners harp on the withdrawal's effectivity, which was one year from
the United Nations Secretary-​General's receipt of the notification. However,
this one-​year period only pertains to the effectivity, or when exactly the legal
consequences of the withdrawal takes effect. It neither concerns approval
nor finality of the withdrawal. Parenthetically, this one-​year period does not
undermine or diminish the International Criminal Court's jurisdiction and
power to continue a probe that it has commenced while a state was a party to
the Rome Statute.

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Here, the withdrawal has been communicated and accepted, and there are
no means to retract it. This Court cannot extend the reliefs that petitioners
seek. The Philippines's withdrawal from the Rome Statute has been properly
received and acknowledged by the United Nations Secretary-​General, and has
taken effect. These are all that the Rome Statute entails, and these are all that
the international community would require for a valid withdrawal. Having
been consummated, these actions bind the Philippines.

v The Application of International Law to Armed Rebel Groups in

the Philippines

A People v. Hernandez (1956)59

[The defendant was convicted of “rebellion complexed with murders, arsons
and robberies”, the “common crimes” having been “necessary means to com-
mit the crime of rebellion.” In the Revised Penal Code,60 Article 134 (Rebellion
or Insurrection.—​How Committed), rebellion is committed by “rising publicly
and taking arms against the Government.” In sentencing the defendant to life
imprisonment, the lower court applied Article 48 [Penalty for Complex Crimes]
which states that “when an offense is a necessary means for committing the
other, the penalty for the most serious crime shall be imposed, the same to
be applied in its maximum period.” On the other hand, Article 135 (Penalty
for Rebellion or Insurrection) prescribes a lower penalty of prisión mayor [6–​
12 years] and a fine.]
One of the means by which rebellion may be committed, in the words of
said Article 135 is by “engaging in war against the forces of the government” and
“committing serious violence” in the prosecution of said “war.” These expres-
sions imply everything that war connotes, namely; resort to arms, requisition
of property and services, collection of taxes and contributions, restraint of
liberty, damage to property, physical injuries and loss of life, and the hunger,
illness and unhappiness that war leaves in its wake—​except that, very often, it
is worse than war in the international sense, for it involves internal struggle, a
fight between brothers, with a bitterness and passion or ruthlessness seldom
found in a contest between strangers. Being within the purview of “engaging in
war” and “committing serious violence”, said resort to arms, with the resulting
impairment or destruction of life and property, constitutes not two or more
offense, but only one crime—​that of rebellion plain and simple. Thus, for

59 g.r. No. L-​6025, 18 July 1956.

60 Revised Penal Code (1930).

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instance, it has been held that “the crime of treason may be committed ‘by
executing either a single or similar intentional overt acts, different or similar
but distinct, and for that reason, it may be considered one single continuous
offense. [citations omitted].
Inasmuch as the acts specified in said Article 135 constitute, we repeat,
one single crime, it follows necessarily that said acts offer no occasion for the
application of Article 48, which requires therefor the commission of, at least,
two crimes. Hence, this court has never in the past, convicted any person of
the “complex crime of rebellion with murder.” What is more, it appears that
in every one of the cases of rebellion published in the Philippine Reports, the
defendants were convicted of simple rebellion, although they had killed sev-
eral persons, sometimes peace officers [citations omitted].
…
In short, political crimes are those directly aimed against the political order,
as well as such common crimes as may be committed to achieve a political
purpose. The decisive factor is the intent or motive. If a crime usually regarded
as common like homicide, is perpetrated for the purpose of removing from the
allegiance “to the Government the territory of the Philippines Islands or any
part thereof,” then said offense becomes stripped of its “common” complex-
ion, inasmuch as, being part and parcel of the crime of rebellion, the former
acquires the political character of the latter.
….
Thus, national, as well as international, laws and jurisprudence overwhelm-
ingly favor the proposition that common crimes, perpetrated in furtherance of a
political offense, are divested of their character as “common” offenses and assume
the political complexion of the main crime of which they are mere ingredients,
and, consequently, cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty.
.…
It is evident to us that the policy of our statutes on rebellion is to consider all
acts committed in furtherance thereof—​as specified in Articles 134 and 135 of
the Revised: Penal Code—​as constituting only one crime, punishable with one
single penalty—​namely, that prescribed in said Article 135.

B Philippine Act on Crimes against International Humanitarian Law,

Genocide, and Other Crimes Against Humanity (2009)61
Section 2. Declaration of Principles and State Policies.
….

61 Rep. Act No. 9851 (2009).

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(d) The state adopts the generally accepted principles of international law,
including the Hague Conventions of 1907, the Geneva Conventions on
the protection of victims of war and international humanitarian law, as
part of the law of our nation;
(e) The most serious crimes of concern to the international community as
a whole must not go unpunished and their effective prosecution must
be ensured by taking measures at the national level, in order to put an
end to impunity for the perpetrators of these crimes and thus contrib-
ute to the prevention of such crimes, it being the duty of every State
to exercise its criminal jurisdiction over those responsible for interna-
tional crimes;
….
(g) The State recognizes that the application of the provisions of this Act
shall not affect the legal status of the parties to a conflict, nor give an
implied recognition of the status of belligerency.
….
Section 3. For purposes of this Act, the term:
(c) “Armed conflict” means any use of force or armed violence between
States or a protracted armed violence between governmental author-
ities and organized armed groups or between such groups within that
State: Provided, That such force or armed violence gives rise, or may
give rise, to a situation to which the Geneva Conventions of 12 August
1949, including their common Article 3, apply. Armed conflict may be
international, that is, between two (2) or more States, including bellig-
erent occupation; or non-​international, that is, between governmental
authorities and organized armed groups or between such groups within
a state. It does not cover internal disturbances or tensions such as riots,
isolated and sporadic acts of violence or other acts of a similar nature.
(d) “Armed forces” means all organized armed forces, groups and units that
belong to a party to an armed conflict which are under a command
responsible to that party for the conduct of its subordinates. Such
armed forces shall be subject to an internal disciplinary system which
enforces compliance with International Humanitarian Law.
….
(f) “Effective command and control” or “effective authority and control”
means having the material ability to prevent and punish the commis-
sion of offenses by subordinates.
(g) “Enforced or involuntary disappearance of persons” means the arrest,
detention, or abduction of persons by, or with the authorization sup-
port or acquiescence of, a State or a political organization followed by a

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refusal to acknowledge that deprivation of freedom or to give informa-

tion on the fate or whereabouts of those persons, with the intention of
removing from the protection of the law for a prolonged period of time.
….
chapter iiI
crimes against international humanitarian law, genocide and
other crimes against humanity
Section 4. War Crimes. -​For the purpose of this Act, “war crimes” or “crimes
against International Human Humanitarian Law” means:
(a) In case of an international armed conflict, grave breaches of the Geneva
Conventions of 12 August 1949, namely, any of the following acts against
persons or property protected under provisions of the relevant Geneva
Convention ….
(b) In case of a non-​international armed conflict, serious violations of com-
mon Article 3 to the four (4) Geneva Conventions of 12 August 1949,
namely, any of the following acts committed against persons taking no
active part in the hostilities, including member of the armed forces who
have laid down their arms and those placed hors de combat by sickness,
wounds, detention or any other cause;
(c) Other serious violations of the laws and customs applicable in armed
conflict, within the established framework of international law, ….
Section 5. Genocide -​(a) For the purpose of this Act, “genocide” means any of
the following acts with intent to destroy, in whole or in part, a national, eth-
nic, racial, religious, social or any other similar stable and permanent group as
such: ….
Section 6. Other Crimes Against Humanity. -​For the purpose of this act, “other
crimes against humanity” means any of the following acts when committed as
part of a widespread or systematic attack directed against any civilian popula-
tion, with knowledge of the attack:
(a) Willful killing;
(b) Extermination;
(c) Enslavement;
(d) Arbitrary deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in viola-
tion of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender, sexual orientation or

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other grounds that are universally recognized as impermissible under

international law, in connection with any act referred to in this para-
graph or any crime defined in this Act;
(i) Enforced or involuntary disappearance of persons;
(j) Apartheid; and
(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
….
chapter vii
applicability of international law and other laws
Section 15. Applicability of International Law. In the application and interpre-
tation of this Act, Philippine courts shall be guided by the following sources:
(a) The 1948 Genocide Convention;
(b) The 1949 Geneva Conventions i-​i v, their 1977 Additional Protocols i
and ii and their 2005 Additional Protocol iii;
(c) The 1954 Hague Convention for the Protection of Cultural Property
in the Event of Armed Conflict, its First Protocol and its 1999 Second
Protocol;
(d) The 1989 Convention on the Rights of the Child and its 2000 Optional
Protocol on the Involvement of Children in Armed Conflict;
(e) The rules and principles of customary international law;
(f) The judicial decisions of international courts and tribunals;
(g) Relevant and applicable international human rights instruments;
(h) Other relevant international treaties and conventions ratified or
acceded to by the Republic of the Philippines; and
(i) Teachings of the most highly qualified publicists and authoritative
commentaries on the foregoing sources as subsidiary means for the
determination of rules of international law.
….
chapter vii
jurisdiction
Section 17. Jurisdiction. The State shall exercise jurisdiction over persons,
whether military or civilian, suspected or accused of a crime defined and
penalized in this Act, regardless of where the crime is committed, provided,
any one of the following conditions is met:
(a) The accused is a Filipino citizen;
(b) The accused, regardless of citizenship or residence, is present in the
Philippines; or
(c) The accused has committed the said crime against a Filipino citizen.

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International Criminal Law 469

In the interest of justice, the relevant Philippine authorities may dispense

with the investigation or prosecution of a crime punishable under this Act if
another court or international tribunal is already conducting the investiga-
tion or undertaking the prosecution of such crime. Instead, the authorities
may surrender or extradite suspected or accused persons in the Philippines to
the appropriate international court, if any, or to another State pursuant to the
applicable extradition laws and treaties.
….

C People v. Junaid Macauyag Awal (2019)62

[The accused, a member of an armed group in Marawi City, Mindanao Island,
that aims to establish an Islamic State, took the victim, female and 16 years
old, as hostage. As stated by the Court, “[d]‌uring her detention, he made her
his “sabaya” (wife or slave).” He was charged under the following provision of
the ihl Law:

section 6. Other Crimes Against Humanity.—​For the purpose of this

Act, “other crimes against humanity” means any of the following acts
when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:
….

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy,

enforced sterilization, or any other form of sexual violence of com-
parable gravity; 63 ….]
The [charge] reads, as follows:

That on or about October 21, 2017 and for sometime prior thereto, in the
City of Marawi, Philippines, and within the jurisdiction of this Honorable
court, the above named accused who is an active member of an orga-
nized armed group known as the Maute–​i sis local terrorist group con-
sisting more or less 500 members under the leadership and command
of its leaders … all of them armed with high caliber weapons and explo-
sives including the herein accused wage an armed conflict against gov-
ernment authorities in Marawi City and in the course of the said violent

62 Crim. Case Nos. 1448 & 1449 [for Rebellion and Violations of ihl Law (rtc-​Branch 70,
Taguig City, 15 March 2019).
63 Rep. Act No. 9851 (2009). Philippine Act on Crimes Against International Humanitarian
Law, Genocide, and Other Crimes Against Humanity.

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armed conflict, the said accused as part of a widespread or systematic

attack directed against the civilian population of Marawi City and with
knowledge of the attack willfully, unlawfully and feloniously did then
and there cause[] one of their captive[s]‌, Marry Jia Decenilla y Tampos, a
minor, 16 years of age, a civilian and non-​combatant[,]through threats and
intimidation[] to be his slave in the concept of owning the person of Marry
Jia Decenilla and by reason thereof succeeded in having carnal knowledge/​
sexual abuse [with] the said minor child on several [occasions] against her
will and consent. [emphasis added]

[The Court cites the following provisions of the ihl Law, r.a. 9851, supra,
namely: §3.c definition of armed conflict; §3.q, protected persons; §4.b.c, war
crime of taking of hostages; §4.b.19, sexual offenses including rape, sexual slav-
ery and any other form of sexual violence.]
In this case, applying the above-​quoted provisions of R. A. 9851, we can
make the following assessment as to the situation during the Marawi Siege
under International humanitarian law (ihl).
First, the use of force or armed violence between the Philippine government
troops and the organized armed group of Maute/​i sis group which started last
May, 2017 is considered a non-​international armed conflict (niac). The degree
of the internal disturbances and tensions during the Marawi siege which is
very close to the level of a full-​blown civil war is undoubtedly a niac. Further,
the Marawi siege reached a certain level of intensity and the group involved
(Maute-​i sis group) is sufficiently organized;
Second, since the Marawi conflict is a niac, the private complainant for
violation of the ihl is a protected person for having been deprived of liberty
for reasons, due to the armed conflict; and
Third, taking the private complainant as a hostage using her for sexual slav-
ery by the accused, are clear violations of the ihl during the niac.
The Prosecution heavily relied on the clear and straightforward testimonies
of the private complainant and her mother that Marry Jia was forcibly made
as “sabaya” or wife by the accused during the siege. The private complainant,
Marry Jia bravely revealed to the court the several occasions wherein she
agreed to have sexual intercourse with the accused out of fear for her life.
….
Marry Jia’s foregoing testimony bears the hallmark of truth. She testified in
a straightforward, candid and convincing manner, leaving no room for doubts
that, during several occasions while in captivity as a hostage during the Marawi
siege, she was forcibly made as sabaya, meaning alila [servant] or asawa [wife].
….

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International Criminal Law 471

The private complainant who was a minor and a hostage is a protected per-
son under the ihl. But the accused instead of giving her the required treat-
ment and protection during this niac, consummated his bestial act of making
Marry Jia his sexual slave. ….
[The accused was found guilty and convicted for violating the ihl Law
§6.g and sentenced to life imprisonment (technically, forty years) and a fine
of Pesos 500,000 (or US$10,000). The §7 Penalties provide for the heaviest
penalty of reclusion perpetua “[w]‌hen justified by the extreme gravity of the
crime.”]

D ndfp Declaration of Adherence to International Humanitarian Law

(1991)64
As a party to the 22-​year-​long civil war in the Philippines, the National
Democratic Front of the Philippines (ndf) hereby formally declares its adher-
ence to international humanitarian law, especially Article 3 common to the
Geneva Conventions as well as Protocol ii Additional to said conventions, in
the conduct of the armed conflict in the Philippines.
As a national liberation organization and movement committed to uphold
the interests of the Filipino people against foreign domination (especially
that of the United States) and local oppression, the ndf has always adhered
to the principle of according full respect for innocent human life in the con-
duct of its struggle against the ruling elite in the Philippines and its foreign
backers.
From the time of the peace talks with the Government of the Republic of
the Philippines (grp) in 1986–​1987, the ndf has reinforced this commitment
by publicly declaring on various occasions its voluntary adherence to Protocol
ii of the Geneva Conventions and to international humanitarian law in gen-
eral. It has also taken concrete steps to ensure its observance by its forces oper-
ating in 63 provinces (out of a total 75) throughout the country.
In the current peace process in the Philippines, the ndf has proposed to
the grp the conclusion of an agreement on human rights and international
humanitarian law as an objective even before talks and agreement on the
other substantive issues take place. The aim of such an agreement would be to
ensure the mutual observance of international humanitarian law by the par-
ties which would thereby serve to reduce the human and material costs of the
conflict.

64 15 August 1991, See also Ocampo v. Abando, Leonen, J., Concurring Opinion, infra note 68.

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472  Chapter 10

Through this formal declaration, the ndf affirms to the Filipino people and
the international community its commitment to humanize the conflict as part
of its firm pursuit of a just, enduring and liberating peace in the Philippines.

E Hague Joint Declaration and Its Aide Memoire (1992)65

Joint Declaration
1. Formal peace negotiations between the grp [Government of the
Republic of the Philippines] and the ndf shall be held to resolve the
armed conflict.
2. The common goal of the aforesaid negotiations shall be the attainment
of a just and lasting peace.
….
5. Preparatory to the formal peace negotiations, we have agreed to recom-
mend the following:
….
b. The substantive agenda of the formal peace negotiations shall
include human rights and international humanitarian law, socio-​
economic reforms, political and constitutional reforms, end of hos-
tilities and disposition of forces.

Aide Memoire
….
The Hague Joint Declaration envisioned the peace negotiations as a venue
for consensus building … to eliminate the root causes of the armed conflict.
Thus, the Hague Joint Declaration enjoined the two sides to find mutually
acceptable principles … such as national sovereignty, democracy and social
justice …. The Hague Joint Declaration did not define these terms ….
Obviously too, the Joint Declaration evaded the issues relating to the politi-
cal character or legal status of any of the Parties to the peace negotiations and
put off discussions on the grp Constitution until the formal peace negotia-
tions ….
Accordingly, if the issue of political status and the issue of the grp
Constitution are once again at the center of the negotiations, it cannot be
truthfully asserted that these issues have been settled by the Hague Joint
Declaration. Now may well be the opportune time to confront these conten-
tious issues.

65 The Hague Joint Declaration, 01 September 1992, available at https://​peace.gov.ph/​2016/​

11/​hague-​joint-​declaration-​gph-​cppnpandf-​sept-​1-​1992/​.

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International Criminal Law 473

F ndfp Declaration of Undertaking to Apply the Geneva Conventions

of 1949 and Protocol i of 1977 (1996)66
In accordance with Article 96, paragraph 3 of Protocol i, we, the National
Democratic Front of the Philippines, hereby address ourselves to the Federal
Council of the Swiss Government as official depositary of the Geneva
Conventions of 1949 and the 1977 Protocol i additional thereto.
We are the political authority representing the Filipino people and organized
political forces that are waging an armed revolutionary struggle for national
liberation and democracy, in the exercise of the right of self-​determination
within the purview of Article 1, paragraph 4, of Protocol i against the persistent
factors and elements of colonial domination and against national oppression,
including chauvinism and racism, victimizing the entire Filipino nation and
particular minorities in the Philippines.
….
[The] revolutionary forces have been engaged in a civil war for a protracted
period of time since March 29, 1969 against the Government of the Republic
of the Philippines (grp) , a High Contracting Party to the Geneva Conventions
and Protocol ii. The great intensity of the civil war has been made mani-
fest by the grp’s brutal use of the regular forces of the Armed Forces of the
Philippines (afp), the imposition of martial rule on the people from 1972 to
1986, the great magnitude of US military involvement in the form of military
funds, materiel and personnel, and the continuing brutal campaigns of sup-
pression under a policy of total war against the aforesaid revolutionary people
and forces.
…
It has deployed the New People’s Army in accordance with the civilized
rules of warfare and has informed and trained it accordingly. Even before this
declaration, it has complied with the rules of war under international law.
It has consciously followed international humanitarian law, like Common
Article 3 of the Geneva Conventions and Protocol ii. It has declared accession
to Protocol ii since 15 August 1991 (cf.: Annex D) and is now resolved to assume
in good faith rights and responsibilities under the Geneva Conventions and
Protocol i. The instruments of international humanitarian law must apply on
the armed conflict between the grp and the ndfp for the protection of the

66 05 July 1996, available at: http://​www.ndfpmc.com/​gob/​sites/​default/​files/​publications/​

Booklet%206.pdf. See also Sandesh Sivakumaran, Lessons for the law of armed conflict
from commitments of armed groups: identification of legitimate targets and prisoners of
war, 93 Intl. Rev. of the Red Cross 882 (2011).

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474  Chapter 10

civilian population and combatants hors de combat because the ndfp has
proven itself as a belligerent force and does not accept as applicable the grp
constitution and laws inasmuch as the grp does not accept as applicable to
itself the constitution and laws of the revolutionary movement.
In their ongoing peace negotiations, the grp and the ndfp have acknowl-
edged by mutual agreement since 25 June 1996 that the prolonged armed con-
flict in the Philippines necessitates the application of the principles of human
rights and principles of international humanitarian law. […]
Being a party to the armed conflict, civil war or war of national liberation
and authorized by the revolutionary people and forces to represent them in
diplomatic and other international relations and in the ongoing peace negotia-
tions with the grp, we the National Democratic Front of the Philippines hereby
solemnly declare in good faith to undertake to apply the Geneva Conventions
and Protocol i to the armed conflict in accordance with Article 96, paragraph
3 in relation to Article 1, paragraph 4 of Protocol i.
The ndfp is rightfully and dutifully cognizant that this declaration, upon
receipt by the Federal Council of the Swiss Government, shall have in relation
to the armed conflict with the grp the following effects:
1. the Geneva Conventions and Protocol i are brought into force for the
ndfp as a Party to the conflict with immediate effect;
2. the ndfp assumes the same rights and obligations as those which have
been assumed by a High Contracting Party to the Geneva Conventions
and Protocol i; and
3. the Geneva Conventions and this Protocol are equally binding upon all
Parties to the conflict.
….
The ndfp undertakes to respect the provisions of the four Geneva
Conventions of 1949 and Protocol i of 1977, regarding the conduct of hostilities
and the protection of the civilian population and the combatants hors de com-
bat in the armed conflict with the grp and to regard its obligations under the
aforesaid instruments of international humanitarian law as having the force of
law among its forces and in the areas under its control.
The ndfp and the forces it herein represents accept the principle of com-
mand responsibility for the system of discipline to ensure respect for the rules
of international humanitarian law and punish those who break them.
….
The ndfp will treat any captured personnel of the military, police and para-
military forces of the grp as prisoners of war and demands that the grp like-
wise treat as prisoners of war any captured personnel of the npa and other
forces represented herein by the ndfp.

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G Comprehensive Agreement on Respect for Human Rights and

International Humanitarian Law between the Government of the
Republic of the Philippines and the National Democratic Front of the
Philippines (carhrihl) (1998)67
The Government of the Republic of the Philippines, including the executive
department and its agencies, hereinafter referred to as the grp
and
The National Democratic Front of the Philippines, including the Communist
Party of the Philippines (cpp) and the New People’s Army (npa), hereinafter
referred to as the ndfp
Hereinafter referred to as “the Parties”
preamble
Recognizing that respect for human rights and international humanitarian law
is of crucial importance and urgent necessity in laying the ground for a just and
lasting peace,
Considering that a comprehensive agreement on respect for human rights
and international humanitarian law should take into account the current
human rights situation in the Philippines and the historical experience of the
Filipino people,
Affirming that the principles of human rights and the principles of interna-
tional humanitarian law are universally applicable,
Acknowledging that the prolonged armed conflict in the Philippines neces-
sitates the application of the principles of human rights and the principles of
international humanitarian law,
…
part ii
basis, scope and applicability
….
Article 4
It is understood that the universally applicable principles and standards
of human rights and of international humanitarian law contemplated in
this Agreement include those embodied in the instruments signed by the
Philippines and deemed to be mutually applicable to and acceptable by both
Parties.
Article 5
This Agreement shall be applicable in all cases involving violations of human
rights and the principles of international humanitarian law committed against

67 16 March 1998, available at: http://​www.incore.ulst.ac.uk/​services/​cds/​agreements/​pdf/​

phil8.pdf.

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476  Chapter 10

persons, families and groups affiliated with either Party and all civilians and
persons not directly taking part in the hostilities, including persons deprived
of their liberty for reasons related to the armed conflict. It shall likewise be
applicable to all persons affected by the armed conflict, without distinction of
any kind based on sex, race, language, religion or conviction, political or other
opinion, national, ethnic or social origin, age, economic position, property,
marital status, birth or any other similar condition or status.
part iii
respect for human rights
….
Article 4
The persons liable for violations and abuses of human rights shall be subject
to investigation and, if evidence warrants, to prosecution and trial. The victims
or their survivors shall be indemnified. All necessary measures shall be under-
taken to remove the conditions for violations and abuses of human rights and
to render justice to and indemnify the victims.
Article 5
The Parties hereby respect and support the rights of the victims of human
rights violations during the Marcos regime, taking into consideration the
final judgment of the United States Federal Court System in the Human
Rights Litigation Against Marcos; Senate Resolution 1640; Swiss Supreme
Court Decision of 10 December 1997; and pertinent provisions of the U.N.
Covenant on Civil and Political Rights and the 1984 U.N. Convention Against
Torture.
Should there be any settlement, the grp shall also execute with the duly
authorized representatives of the victims a written instrument to implement
this Article and guide the satisfaction of the claims of said victims, with regard
to the amount and mode of compensation, which shall be the most direct and
quickest possible to every victim or heir in accordance with the relevant Swiss
Supreme Court decisions.
In case of any settlement outside of U.S. jurisdiction, all or the majority of
said victims shall determine their representation by power of attorney.
Article 6
The grp shall abide by its doctrine laid down in People vs. Hernandez [cita-
tion omitted] as further elaborated in People vs. Geronimo [citation omitted],
and shall forthwith review the cases of all prisoners or detainees who have
been charged, detained, or convicted contrary to this doctrine, and shall imme-
diately release them.
….

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International Criminal Law 477

part iv
respect for international humanitarian law
Article 1
In the exercise of their inherent rights, the Parties to the armed conflict shall
adhere to and be bound by the generally accepted principles and standards of
international humanitarian law.
Article 2
These principles and standards apply to the following persons:
1. civilians or those taking no active part in the hostilities;
2. members of armed forces who have surrendered or laid down their arms;
3. those placed hors de combat by sickness, wounds of any other cause;
4. persons deprived of their liberty for reasons related to the armed con-
flict; and,
5. relatives and duly authorized representatives of above-​named persons.
….
Article 6
The persons liable for violations of the principles of international humanitar-
ian law shall be subject to investigation and, if evidence warrants, to prosecu-
tion and trial. The victims or their survivors shall be indemnified. All necessary
measures shall be undertaken to remove the conditions for such violations and
to render justice to and indemnify the victims.
part vi
final provisions
….
Article 3. Nothing in the provisions of this Agreement nor in its applica-
tion shall affect the political and legal status of the Parties in accordance with
the Hague Joint Declaration. Subsequently, this Agreement shall be subject
to the Comprehensive Agreements on Political and Constitutional Reforms
and on End of Hostilities and Disposition of Forces. Any reference to the trea-
ties signed by the grp and to its laws and legal processes in this Agreement
shall not in any manner prejudice the political and organizational integrity of
the ndfp.

H Ocampo v. Abando (2014)68

On 26 August 2006, a mass grave was discovered by elements of the 43rd
Infantry Brigade of the Philippine Army at Sitio Sapang Daco, Barangay
Kaulisihan, Inopacan, Leyte.

68 g.r. No. 176830, 11 February 2014.

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478  Chapter 10

The mass grave contained skeletal remains of individuals believed to be

victims of “Operation Venereal Disease” (Operation vd) launched by mem-
bers of the Communist Party of the Philippines/​New People’s Army/​National
Democratic Front of the Philippines (cpp/​n pa/​n dfp) to purge their ranks of
suspected military informers.
[A Philippine National Police officer and a Staff Judge Advocate officer
of the Philippine Army] sent 12 undated letters to the Provincial Prosecutor
of Leyte …. The letters requested appropriate legal action on 12 complaint-​
affidavits attached therewith accusing 71 named members of the Communist
Party of the Philippines/​New People’s Army/​National Democratic Front of the
Philippines (cpp/​n pa/​n dfp) of murder, including petitioners herein along
with several other unnamed members.
….
From 1985 to 1992, at least 100 people had been abducted, hog-​tied, tortured
and executed by members of the cpp/​n pa/​n dfp pursuant to Operation vd.
On the basis of the 12 letters and their attachments, Prosecutor Vivero
issued a subpoena requiring, among others, petitioners to submit their
counter-​affidavits and those of their witnesses. Petitioner Ocampo submitted
his counter-​affidavit. Petitioners Echanis and Baylosis did not file counter-​
affidavits because they were allegedly not served the copy of the complaint
and the attached documents or evidence. Counsel of petitioner Ladlad made a
formal entry of appearance on 8 December 2006 during the preliminary inves-
tigation. However, petitioner Ladlad did not file a counter-​affidavit because he
was allegedly not served a subpoena.
….
On 6 March 2007, Judge Abando issued an Order finding probable cause “in
the commission by all mentioned accused of the crime charged.” He ordered
the issuance of warrants of arrest against them with no recommended bail for
their temporary liberty.
On 16 March 2007, petitioner Ocampo filed before us this special civil action
[annul that] Order of Judge Abando …. The petition prayed for the uncondi-
tional release of petitioner Ocampo [and an order] to restrain the conduct of
further proceedings during the pendency of the petition.
…. Putting forward the political offense doctrine, petitioner Ocampo argues
that common crimes, such as murder in this case, are already absorbed by the
crime of rebellion when committed as a necessary means, in connection with
and in furtherance of rebellion.
….
The political offense doctrine is not a ground to dismiss the charge against
petitioners prior to a determination by the trial court that the murders were
committed in furtherance of rebellion.

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International Criminal Law 479

Under the political offense doctrine, “common crimes, perpetrated in fur-

therance of a political offense, are divested of their character as “common”
offenses and assume the political complexion of the main crime of which they
are mere ingredients, and, consequently, cannot be punished separately from
the principal offense, or complexed with the same, to justify the imposition of
a graver penalty.”
Any ordinary act assumes a different nature by being absorbed in the crime
of rebellion. Thus, when a killing is committed in furtherance of rebellion, the
killing is not homicide or murder. Rather, the killing assumes the political com-
plexion of rebellion as its mere ingredient and must be prosecuted and pun-
ished as rebellion alone.
However, this is not to say that public prosecutors are obliged to consistently
charge respondents with simple rebellion instead of common crimes. No one
disputes the well-​entrenched principle in criminal procedure that the institu-
tion of criminal charges, including whom and what to charge, is addressed to
the sound discretion of the public prosecutor.
….
But when the political offense doctrine is asserted as a defense in the trial
court, it becomes crucial for the court to determine whether the act of killing
was done in furtherance of a political end, and for the political motive of the
act to be conclusively demonstrated.
Petitioners aver that the records show that the alleged murders were com-
mitted in furtherance of the cpp/​n pa/​n dfp rebellion, and that the political
motivation behind the alleged murders can be clearly seen from the charge
against the alleged top leaders of the cpp/​n pa/​n dfp as co-​conspirators.
We had already ruled that the burden of demonstrating political motivation
must be discharged by the defense, since motive is a state of mind which only
the accused knows. The proof showing political motivation is adduced during
trial where the accused is assured an opportunity to present evidence support-
ing his defense. It is not for this Court to determine this factual matter in the
instant petitions.

I Ocampo v. Abando, Leonen, J., Concurring Opinion (2014)69

I concur with the Chief Justice that this case should be remanded so that the
court can properly examine the evidence raised by the defense. I write this sep-
arate opinion in the interest of judicial economy. Should it be shown that there
are acts committed in violation of Republic Act No. 9851, otherwise known as
the Philippine Act on Crimes Against International Humanitarian Law, Genocide

69 Id.

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480  Chapter 10

and Other Crimes Against Humanity, these acts could not be absorbed in the
crime of rebellion.
…
Acts committed in violation of Republic Act No. 9851, even in the context
of armed conflicts of a non-​international character and in view of the declara-
tions of the Communist Party of the Philippines and the National Democratic
Front, cannot be deemed to be acts in connection with or in furtherance of
rebellion.
…
International humanitarian law (ihl) is the body of international law that
regulates the conduct of armed conflicts, whether of an international or non-​
international character. This body of law seeks to limit the effects of the con-
flict on individuals. The 1949 Geneva Conventions and its Additional Protocols
are the main instruments that govern ihl. Nevertheless, ihl and the rules and
principles contained in the Geneva Conventions are largely regarded in the
international sphere as having the character of general or customary interna-
tional law given the fundamental nature of the rules and “because they consti-
tute intransgressible principles of international customary law.”
In the Philippines, Republic Act No. 9851 was enacted in view of its policy to
“ [renounce] war …, [adopt] the generally accepted principles of international
law as part of the law of the land and [adhere] to a policy of peace, equality,
justice, freedom cooperation and amity with all nations.” Accordingly, “[t]‌he
most serious crimes of concern to the international community as a whole
must not go unpunished and their effective prosecution must be ensured by
taking measures at the national level, in order to put an end to impunity for
the perpetrators of these crimes and thus contribute to the prevention of such
crimes, it being the duty of every State to exercise its criminal jurisdiction over
those responsible for international crimes.”
….
Article 3 common to the 1949 Geneva Conventions and Additional Protocol
ii are the foundation of the applicable rules in a non-​international or internal
armed conflict. Common Article 3, which has attained a customary law char-
acter, prescribes a minimum standard to be applied to persons who are not
actively taking part in an internal armed conflict. ….
[Common Article 3] is substantially reproduced in Section 4, paragraph
(b) of Republic Act No. 9851 [the ihl Law as it pertains to non-​international
armed conflict].
…
Additional Protocol ii supplements Common Article 3 in terms of the rules
applicable to internal armed conflict. Additional Protocol ii specifies: 1) the

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International Criminal Law 481

guarantees afforded to persons involved in the internal armed conflict; and

2) the obligations of the parties to the internal armed conflict. ….
…
Furthermore, protection for the civilian population is expressly provided for
in Additional Protocol ii ….
….
Some have asserted that Common Article 3 of the Geneva Conventions
belongs to the body of jus cogens norms. Jus cogens norms under the Vienna
Convention of Law of the Treaties are “norm[s]‌accepted and recognized by
the international community of States as a whole as [norms] from which no
derogation is permitted and which can be modified only by a subsequent norm
of general international law having the same character.”
The principles embedded in Common Article 3 have been held to apply
even to international armed conflict, thus, depicting a universal character.
….
Hence, non-​observance of the minimum standard provided for in Common
Article 3 triggers a violation of well-​accepted principles of international law.
….
Rep. Act No. 9851 defines and provides for the penalties of crimes against
humanity, serious violations of ihl, genocide, and other crimes against
humanity. This law provides for the non-​prescription of the prosecution of and
execution of sentences imposed with regard to the crimes defined in the Act.
It also provides for the jurisdiction of the Regional Trial Court over the crimes
defined in the Act.
These crimes are, therefore, separate from or independent from the crime of
rebellion even if they occur on the occasion of or argued to be connected with
the armed uprisings.
Not only does the statute exist. Relevant to these cases are the Declarations
made by the Communist Party of the Philippines/​New People’s Army/​National
Democratic Front or cpp/​n pa/​n df invoking the Geneva Conventions and its
1977 Additional Protocols.
One of these documents is the Declaration of Adherence to International
Humanitarian Law dated August 15, 1991 [supra], whereby the National
Democratic Front “formally declare[d]‌its adherence to international human-
itarian law, especially Article 3 common to the Geneva Conventions as well as
Protocol ii additional to said conventions, in the conduct of armed conflict in
the Philippines.”
…
In addition, in the context of peace negotiations, it appears that there is a
Comprehensive Agreement on Respect for Human Rights and International

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482  Chapter 10

Humanitarian Law (carhrihl) executed by the Government of the Republic

of the Philippines (grp) and the cpp/​n pa/​n df [supra]. This agreement estab-
lishes the recognition of the existence, protection, and application of human
rights and principles of international humanitarian law as well as provides the
following rights and protections to individuals by the cpp/​n pa/​n df. ….

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Index

Abaya v. Ebdane (2007) 229 Arigo v. Swift (2014) 328

Abbas v. COMELEC (1989) 76, 128 armed conflict
ADB. See Asian Development Bank (ADB) between GRP and NDFP 474
Adolfo v. Court of First Instance (1970) 238 definition 466
Agoncillo, Felipe 6, 22 in the Philippines 390
Aguinaldo, Baldomero 10 on Hague Joint Declaration 472
Aguinaldo, Emilio, 1869-​1964 5 war of national liberation 4
capture in 1901 8 with Muslim seccesionist rebels 391
manifesto of sovereignty (1899) 25 armed forces
promulgation of the republic 6, 9, 12 definition 466
protests against Spain 6, 10 Arroyo, Gloria Macapagal-​, 1947-​
return to Manila 6 extra-​judicial killings 380
subordinates 68 on ancestral domain agreement
Aguirre, Vitaliano II 445 (2008) 392
Agustin v. Edu (1979) 235 on crimes against IHL 455
AIIB. See Asian Infrastructure Investment on the Rome Statute 383
Bank (AIIB) Rubrico v. Macapagal-​Arroyo (2010) 425
Alien Tort Claims Act 263, 268, 278–​279 Asian Development Bank (ADB) 313, 335
Alston, Philip 380 Asian Infrastructure Investment Bank
report on extrajudicial executions in the (AIIB) 364
Philippines (2009) 381 Australia v. France. See Nuclear Tests Case
amnesty Autonomous Region in Muslim Mindanao
during Aguinaldo’s term 5 (Philippines) 76
during Philippine-​American war 8, 36 Azcuna, Adolfo 176, 428
purpose 72 Azio Foundation, 445. See also Verso
Amnesty Proclamation (1902) 27 Foundation
offenses 69
Annex to Fourth Hague Convention Baer v. Tizon (1974) 318
(1907) 420 Bagong Alyansang Makabayan 260
Anti-​Enforced or Involuntary Disappearance Balangiga Massacre 33, 35
Act (2012) 301 Balikatan exercises 250–​251
Aquino, Benigno Simeon Cojuangco Bangsamoro Basic Law 76
on Bangsamoro 392 Bank of Taiwan 182
on West Philippine sea dispute 91 Baselines Law (2009) 77, 91
ratification of AIIB agreement Basic Principles and Guidelines (UN General
(2016) 239 Assembly) 193–​194
Aquino, Corazon Cojuangco Battle of Manila Bay 5
during transitional period 194 Bayan Muna v. Romulo (2011) 217, 452
first executive order 296 Bayan Muna v. Romulo, Carpio, J., Dissenting
on 1976 Tripoli Agreement 76 Opinion (2011) 457
prohibiting Marcos’ return 193, 267 Bayan v. Zamora (2000) 201, 205, 223, 246
archipelagic waters (maritime territory) 77 Beck, Ivo 298
legal status 112 belligerent 183
under UNCLOS 112 Benedicto, Roberto 297
Arelma S.A. (corporation) 265, 292 benevolent assimilation 6, 18

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484 Index

Bengzon, César 141 CLCS. See United Nations. Commission on

Benham Rise 92 the Limits of the Continental Shelf
Benipayo, Alfredo 453 colonial protectorate 104
Bensouda, Fatou 385, 437 comfort women 204, 378
Bertheau, Theo 297 government system 415
Bilateral Immunity Agreement (BIA) 384 historical background 415
Bilibid Prison (Manila, Philippines) 199 narratives 414
Blanco, Ramón 5, 9 petitioners 415
Bonifacio, Andres, 1863-​1897 5 Vinuya v. Executive Secretary (2010) 179
Borovsky v. Commissioner of Immigration Commission on the Limits of the Continental
(1951) 198 Shelf (CLCS). See United Nations.
Borovsky, Victor 199 Commission on the Limits of the
Brion, Arturo 193 Continental Shelf
Brown, Preston 35, 50 Commissioner of Customs v. Eastern Sea
Brownell, Cornelius 56 Trading (1961) 210
Bureau of Internal Revenue (BIR). See common crimes (Amnesty Proclamation)
Philippines. Bureau of Internal as a crime of rebellion 464
Revenue as a political offense 479
Burkina Faso v. Mali. See Case Concerning Commonwealth of the Philippines (1936–​
the Frontier Dispute 1946) 29, 245
Communist Party of the Philippines
Cameroon v. Nigeria (1999) 152 (1930–) 390
capital punishment (Philippines) 348 mass grave in Leyte (2006) 478
CARHRIHL. See Comprehensive on CARHRIHL 475
Agreement on Respect for Human Compañia Tabacalera (corporation) 185
Rights and International Humanitarian Compilation of Laws of the Indies 133
Law between the Government of the Comprehensive Agreement on Respect for
Republic of the Philippines and the Human Rights and International
National Democratic Front of the Humanitarian Law between the
Philippines (1998) Government of the Republic of
Cariño v. Insular Government of the Philippine the Philippines and the National
Islands (1909) 75, 130 Democratic Front of the Philippines
Carpio, Antonio T. 329 (1998) 475, 482
on foreign warships 330 Comprehensive Agreement on the
Carpio-​Morales, Conchita. See Morales, Bangsamoro (2014), 585. See also
Conchita Carpio Bangsamoro Basic Law
Case Concerning the Frontier Dispute 187 compulsory jurisdiction (ICJ) 139
Case-​Zablocki Act 254 Philippine declaration of submission
Cession Agreement (1900) 22 (1945) 140
Chase, Salmon 352 Philippine declaration of submission
China Banking Corporation 182, 185 (1972) 140, 143
China Road & Bridge Corporation 229 Constitution of the Philippines (1987). See
China-​ASEAN Declaration on the Conduct Philippines. Constitution (1987)
of Parties in the South China Sea Constitutional Convention of the Philippines
(2002) 79 (1972) 275
Civil Code of the Philippines. See Convention against Torture and Other Cruel,
Philippines. Civil Code of the Inhuman, or Degrading Treatment or
Philippines Punishment (1984 December 10) 285,
Clark Air Base (Philippines) 320 300, 476

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Index 485

Convention on the Rights of the Child (1989 East India Company 94, 104
November 20) 237 economic zones (law of the sea) 89
conventional war crimes (IMTFE) 396–​397 exclusive rights 89
Court of Tax Appeals. See Philippines. sovereign rights 89
Court of Tax Appeals EDCA. See Enhanced Defense Cooperation
CPP. See Communist Party of the Agreement
Philippines (1930–) EDSA revolution. See People Power
Crédit suisse 297 Revolution (1986)
crimes against humanity (IMTFE) 398 EEZ. See economic zones (law of the sea)
as distinct crimes 400 effective command and control 466
examples of 396 effective remedy 192
on South China Sea dispute (2019) 388, 447 Electronic Commerce Act (2000) 343
other crimes against humanity 467 enforced or involuntary disappearance of
crimes against peace (IMTFE) 396, 398 persons 466
Cry of Pugad Lawin (1896) 5 Enhanced Defense Cooperation
Cuarteron Reef 116 Agreement 245, 254
Enrile, Juan Ponce 275
Davao Death Squad 386 equal pay for equal work 235
De la Peña, Augustine, 95-​104 56 Estrada, Joseph Ejercito
De los Reyes, Cristobal 70 on the Rome Statute 202, 383
death penalty in the Philippines. See on Visiting Forces Agreement 201
capital punishment (Philippines) ex post facto laws (1987 Philippine
Declaration of Adherence to International constitution) 352
Humanitarian Law (1991) 481 executive agreements
Declaration of Independence of the as compared to exchange of notes 218
Philippine Republic (1898) 6 classes 214
Del Rosario, Albert 388 definition 161, 211
Dela Rosa, Ronald (Bato) 445 determining international
Delos Santos, Kian 446 agreements 209
Denby, Charles 19 forms 162
Deutsche Bank v. Commissioner of Internal in United States 232
Revenue (2013) 206 military agreements 256
Dewey, George, 1837–​1917 5, 15, 24 purpose 162
Dizon v. Commanding General (1948) 315 waiver of public bidding 233
double criminality. See extradition Executive Order 1 (1986). See Philippines.
Duterte, Rodrigo Roa, 1945–​ Presidential Commission on Good
at U.N. General Assembly (2020) 85 Government
on Benham Rise 92 exemption from taxation 337–​338
on Marcos’ burial 193 extradition 176, 351
public statements, 662-​664 444 aims 349
ratification of AIIB agreement (2016) 239 definition 349, 357
war on drugs (2016–) 383, 444 deprivation of liberty 353
withdrawal from the Rome Statute double criminality principle 343, 366
(2018) 164, 439, 463 evaluation stage 355–​356
Dy, Francisco 331 executive power 353
international extradition 359
Ealdama, Tobeniano 45 provision of bail 358
Earnshaw and Others (Great Britain) v. United provisional arrest 350
States (Zafiro Case) (1925) 64 requirements 350

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486 Index

Extradition Law. See Philippine Extradition hacking or cracking. See Electronic

Law of 1977 Commerce Act (2000)
extrajudicial executions Hague Conventions (1907) 426
Arroyo administration 380 Hague Joint Declaration 472
Duterte administration 438 Haw Pia case 183
under ICC 437 Haw Pia v. China Banking Corporation
extra-​judicial killings. See extrajudicial (1948) 182
executions Hernandez doctrine 382, 390, 392
Hernandez, Amado V. 390
Fides Trust Company 297 Hilao (class) 277
Field Training Exercise 260 Hilao v. Estate of Marcos (U.S. Court of
Fiery Cross Reef 116 Appeals, Ninth Circuit, 1996) 277, 424
Fifth Amendment (U.S. constitution) 421 Hilao, Sison et al. v. Estate of Marcos (U.S.
Filipino revolutionary government Court of Appeals, Ninth Circuit,
(1899) 68 1996) 284
Foreign Sovereign Immunities Act Holmes, Oliver Wendell, 1809-​1894 75
(1976) 293 Holy See v. Rosario (1994) 312, 324
FTX. See Field Training Exercise Hong Kong (China) 365
host agreement 313
Garcia, Arturo 225 HRVV. See Human Rights Violations Victim
Gaven Reef 116 Human Rights Victims Reparation and
generally accepted principles of international Recognition Act (2013) 265
law 196, 466 conclusive presumption 302
genocide (IMTFE) 467 declaration of policy 300
German High Command case 429 detention 300
Gibbs v. Rodriguez, on Motion for human rights violation 300
Reconsideration (1950) 183 Human Rights Violations Victim (HRVV),
Glenn, Edwin 35, 44 453. See also Hilao (class)
Gonzales v. Hechanova (1963) 214
Government of Hong Kong s.a.r. v. Muñoz ICJ. See International Court of Justice
(2016) 364 ICMC. See International Catholic Migration
Government of Hong Kong s.a.r. v. Olalia Commission
(2007) 362 immunity (international law)
Government of the Republic of the definition 309
Philippines 473 from local jurisdiction 341
Government of the United States v. Purganan jure gestionis 312, 326
(2002) 357 jure imperii 311, 319, 326–​327
Government of the United States v. Purganan, of international organizations 312
on Motion for Reconsideration, Vitug, of states 310, 329
J., Dissenting Opinion (2002) 359 raison d’être 335
Government Procurement Reform Act 229, restrictive immunity 311
231–​232 restrictive theory 326
GRP. See Government of the Republic of sovereign immunity 293, 311, 325
the Philippines suggestion 324
Guerrero’s Transport Services v. BTEA-​ IMTFE. See International Military Tribunal
KILUSAN (1976) 224 for the Far East
Guevarra, Menardo 447 Independence Day (Philippines) 31
Guidelines in Negotiation of International indigenous peoples
Agreements (1997) 209 definition 136

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examples of 137 counts on murder and other

legal basis 137 atrocities 400
individual criminal responsibility crimes of concern 392, 396–​397, 432, 467
(international law) 434 diplomatic protection 418
Indonesia v. Malaysia (2001) 146 distinction 384
Intellectual Property Association v. Ochoa effectivity of the case 387
(2016) 216 entry into force 437
Intellectual Property Code of the exercise of jurisdiction 386–​387, 432
Philippines 216 preconditions 432
interest of a legal nature 146 extra-​territorial criminal jurisdiction 393
International Catholic Migration finality of the case 387
Commission 332 individual criminal
International Catholic Migration Commission responsibility 404, 434
v. Calleja (1990) 332 irrelevance of official capacity 435
International Court of Justice. See also maxims 403
International Criminal Court ne bis in idem 385
and soft law 197 non-​surrender obligation 385
and the Philippines on Hague Joint Declaration 472
compulsory jurisdiction 143 on non-​international armed
Manila Declaration 141 conflicts 389–​391, 464
general principles of law 175 peace negotiations 391
on Visiting Forces Agreement 254 on non-​surrender agreements 452, 457
role in United Nations 145 on World War II 395, 414
International Covenant on Civil and Political petitions 450, 452
Rights (1966 December 16) 134 pre-​trial chamber 386
rights to travel 303 prosecution 458
International Covenant on Economic, Social, responsibility of commanders, etc. 435
and Cultural Rights (1966 December signing of the treaty 384
16) 134 superior orders, etc. 436
International Criminal Court 432 withdrawal 386, 437
admissibility International Humanitarian Law 392–​
issues 433 393, 480
preliminary rulings 434 international law 405
and South China Sea 388 applicability 461
preliminary examination 447 axis 158
sovereignty to maritime zones 389 command responsibility 281, 426,
and the Philippines 166, 383, 437, 439 428, 430
petitions 386 criminal responsibility 411
preliminary examination on the customary law 175
withdrawal 385 erga omnes 180
ratification 383, 385 international agreements 231
request for authorization to investigate jus cogens 180
(2021) 388 military commission 52, 61
under the Rome Statute 431 municipal laws 227
and the United States 384 pacta sunt servanda 354
and Venezuela 438 ratification 203, 451
attainment of justice 406 rebellion 464
collective responsibility 411 self-​government 137
conditio sine qua non 387 signatory state 455

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488 Index

international law (cont.) Liang v. People (2000) 335

signature 203 Licup, Ramon 324
sources 468 Lim v. Executive Secretary (2002) 250
state-​party 455 Llanera, Mariano 10
trends 362 Local Government Code of 1991
international legal order (Philippines) 90
sources of law 170 Luna, Antonio, 1866-​1899 68
International Military Tribunal for the Far Luzon Sea 91
East 375–​376 Luzon Sugar Refining Company, Limited
acts of crime 395 (Great Britain) v. United States
conspiracy 397 (1925) 67
objection to the tribunal 402 Lynch, J. Merrill 265
on individual responsibility 404 Lyons v. United States of America (1958) 317
responsibility of accused 396
International Rice Research Institute 333 Ma. Imelda M. Manotoc v. Court of Appeals
International School Alliance of Educators v. and Agapita Trajano on behalf of
Quisumbing (2000) 234 the Estate of Archimedes Trajano
IP Code. See Intellectual Property Code of (Philippine Supreme Court,
the Philippines 2006) 271
IRRI. See International Rice Research MacArthur, Douglas, 1880-​1964 212, 408
Institute Magallona v. Ermita (2011) 205, 316-​317
Islamic secessionists 391 Magallona, Merlin M. 142
Island of Las Palmas case (1928) 75, 93, 449 Malcolm, George 37
Malolos Constitution. See Philippines.
J. Parsons (Great Britain) v. United States Constitution (1899)
(1925) 67 MALPHI-​L AUT (navy) 260
Jackson, Robert 377 Manila Declaration on the Peaceful
Japan Bank for International Cooperation Settlement of International Disputes
(JBIC). See Kokusai Kyōryoku Ginkō (1982) 141
Jaranilla, Delfin 376 reaffirmation at the general
Javier, Evelio 367, 369 assembly 144
Javier, Exequiel 370 Marawi (Philippines) 469
Jessup, Philip 405 Marcos Jr. v. Republic of the Philippines
Jimenez, Mark 344, 353 (Philippine Supreme Court,
Johnson Reef 116 2012) 299
Jones Law (1916) 29 Marcos v. Manglapus (Philippine Supreme
Court, 1989) 302
Kabataang Barangay 263, 268 Marcos, Ferdinand E. (Ferdinand Edralin),
Kalayaan Island Group. See Spratly Islands 1917-​1989
Katipunan (Philippines) 5, 13 assets 264–​265
Kokusai Kyōryoku Ginkō 229 Swiss banks 296
Kuroda v. Jalandoni (Philippine Supreme patterns and allegations 298
Court, 1949) 378, 412 burial 193, 266, 305–​306
Kuroda, Shigenori 378, 412 casualties 263
estates 424
Law of Forfeiture of Ill-​Gotten Wealth general orders (1972) 275
(1995) 172 historical revisionism 266
Leonen, Marvic F. 392 human rights violation victims 266

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martial law (1972-​1981) 274, 289 National War Crimes Office (1947) 413
human rights violations 275 NDF. See National Democratic Front
liabilities 276 (Philippines)
terms as president 262 New Peoples’ Army (Philippines) 390
Marcos, Imee 263, 277 Nicolas v. Romulo (2009) 252
maritime zones (UNCLOS) 77 nine-​dash line map 82
Maute-​I SIS 392, 469 non-​international armed conflict 390, 470
McKennan Reef 116 non-​surrender agreement (2011) 217
McKinley, William, 1834-​1918 6, 14, 25 North Borneo case (2001) 142
Mejoff v. Director of Prisons (1951) 199 intervention of the Philippines 146
Memorandum of Agreement on Ancestral Novicio, Teodorico 70
Domain 392 NPA. See New Peoples’ Army (Philippines)
Mendez-​Blair agreement (1965) 238 Nuclear Tests Case (2008) 185, 187
Merritt, Wesley, 1834–​1910 16–​17 Nuremberg principle 363
Mijares, et al. v. Ranada (Philippine Supreme
Court, 2005) 285 Ocampo v. Abando (2014) 477
Mijares, et al. v. Ranada and Estate of Marcos Ocampo v. Abando, Leonen, J., Concurring
(2005) 177 Opinion (2014) 181, 479
MILF. See Moro Islamic Liberation Front Ocampo v. Enriquez, on Motion for
military bases agreement (1947) 243, 246, Reconsideration (2017) 192
257, 316 Operation Venereal Disease (2006) 478
Milk Code (1986) 194 Organic Act (1902) 132
Mischief Reef 80, 116, 126 organic act of autonomous regions
violations of China 116 (Philippines) 127
MNLF. See Moro National Liberation Front Otis, Elwell S. (Elwell Stephen),
MOA-​A D. See Memorandum of Agreement 1838-​1909 18–​20
on Ancestral Domain
Moluccas (Indonesia) 99 Pacheco, Teodoro 73
Morales, Conchita Carpio 382 Pacificador, Arturo 369
on command responsibility 428 Pacificador, Rodolfo 347, 367
on Filipino fishermen in WPS 388 Pact of Biak-​na-​Bato 10
Moro Islamic Liberation Front 390–​391 Padilla, Pablo 68
Moro National Liberation Front 128, 391 Panay republic 36
Muñoz, Juan Antonio 346, 360, 364 Pangilinan v. Cayetano (2021) 462
Murphy, Frank 379 Paterno, Pedro Alejandro, 1857-​1911 12
Mutual Defense Treaty between the United People Power Revolution (1986) 158, 308
States of America and the Philippines People v. Hernandez (1956) 464
(1951) 243 People v. Junaid Macauyag Awal (2019) 469
People v. Lol-​lo and Saraw (1922) 393
Nanking Massacre, Nanjing, Jiangsu Sheng, Perfecto, Gregorio 377
China, 1937 415 Permanent Court of Arbitration 78
Nanshan (British vessel) 65 Pestaño, Phillip 164, 188, 190
Narciso, Hilda 289 Pharmaceutical and Health Care Association of
narcopoliticians 445 the Philippines v. Duque (2007) 194
National Democratic Front Philip Morris, Inc. v. Court of Appeals
(Philippines) 390–​391 (1993) 224
adherence to IHL 471 Philippine American War, 1899-​1902
National Pantheon Law (Philippines) 305 crimes committed by U.S. troops 33

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490 Index

Philippine Autonomy Act. See Jones Pimentel v. Executive Secretary (2005) 202,
Law (1916) 223, 450
Philippine Extradition Law of 1977 342, Pimentel, Marcelino 264
345, 361 Pimentel, Mariano 164, 289
Philippine independence (1946) 31 piracy 394
Philippine Independence Act. See Tydings-​ Poe, Fernando 236
McDuffie Act (1934) political crimes (Amnesty Proclamation) 465
Philippine insurrection 67 Primo de Rivera, Fernando 12
Philippine National Bank 299 PRMRR. See Philippine Rise Marine
Philippine Rise. See Benham Rise Resource Reserve
Philippine Rise Marine Resource Reserve 92 Proclamation 1081 274, See Martial law in
Philippine-​Australia Extradition the Philippines (1972–​1981)
Treaty 344, 351 Protocol of Agreement (1898) 63
Philippines v. China at The Hague Protocol of Peace (1898) 21
(2016) 74, 78 Protocol of Washington 24
Philippines. Bureau of Forestry 311 Province of North Cotabato v. Government
Philippines. Bureau of Internal of the Republic of the Philippines
Revenue 206 Peace Panel on Ancestral Domain
Philippines. Civil Code of the (2008) 134, 185
Philippines 239
Philippines. Constitution (1899) 6, 26 Quezon, Manuel Luis, 1878–​1944 37, 70,
political constitution 26 212, See also Commonwealth of the
transitory provisions 27 Philippines (1936-​1946)
Philippines. Constitution (1987) 86, 305
branches of government 158 Rape of Nanking. See Nanking Massacre,
on civilian authority 86 Nanjing, Jiangsu Sheng, China, 1937
on foreign military bases 245 Raquiza v. Bradford (1945) 314
on independent foreign policy 86 Recopilacion de Leyes de las Indias. See
on local government 127 Compilation of Laws of the Indies
on national economy and patrimony 86 Reed Bank 80
on national territory 86 Regime of Islands (UNCLOS) 90
provisions 159–​160 Republic Act 1379. See Law of Forfeiture of
incorporation clause 159–​160, Ill-​Gotten Wealth (1995)
168, 170 Republic Act 289. See National
judicial review clause 161 Pantheon Law
military bases clause 160, 162 Republic Act 3046 90
treaty-​making clause 159, 161 Republic Act 3083 321
factors 169 Republic Act 7160. See Local Government
Philippines. Court of Tax Appeals 210 Code of 1991 (Philippines)
Philippines. Presidential Commission on Republic Act 8293. See Intellectual Property
Good Government 265, 296 Code of the Philippines
Philippines. Treaties, etc. Moro National Republic Act 9147. See Wildlife Resources
Liberation Front, 1976 December Conservation and Protection Act (2001)
23 76, 128 Republic Act 9184. See Government
petitions 129 Procurement Reform Act
Philippines-​United States Visiting Forces Republic Act 9522 (2009). See Baselines
Agreement (VFA) 162, 166, 244, 247, Law (2009)
250, 253–​254 Republic Act 9851. See International
conditions 248 Humanitarian Law

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Republic of Philippines, et al. v. Pimentel (U.S. San Francisco peace treaty 378
Supreme Court, 2008) 292 Sandiganbayan 172, 265
Republic of the Philippines v. The People’s SARS(disease) 197
Republic of China. See South China Scarborough Shoal 80, 110
Sea Arbitration (2016) Second Thomas Shoal 80
Republic v. Sandiganbayan and Marcos Secretary of Justice v. Lantion (2000) 353
Estate (Philippine Supreme Court, Secretary of Justice v. Lantion, on Motion for
2003) 172, 295 Reconsideration (2000) 355
Resus, Ruben 289 Secretary of Justice v. Muñoz (2000) 360
Reyes v. Bagatsing (1983) 236 Several British Subjects (Great Britain) v. United
Ricciardone, Francis J. 452 States (Iloilo Claims) (1925) 62, 105–​107
right to self-​determination Shauf v. Court of Appeals (1990) 322
external 135 Shauf, Loida 322
internal 134 Sison, Jose Maria, 1939–​ 263
rights to travel testimonies on martial law 284
according to Universal Declaration of Smith, Daniel 252
Human Rights 303 Smith, Jacob 33–​34, 37
Rizal, José, 1861-​1896 5 soft law 197–​198
Rock, Allan 370 South China Sea Arbitration (2016) 114
Rome Statute of the International Criminal China’s claim to historic rights 79
Court (1998 July 17) 450, 454 historical records 115, 122
adoption 460 illegal Chinese activities 125
as applied to international humanitarian jurisdiction of ICC 388
law 461 parties’ positions
ne bis in idem 454 China 117
purpose 453 Philippines 115
Romulo, Carlos P. (Carlos Peña), 1899-​1985 143 reports of the Tribunal 123
Romulo-​Kenney agreement 244 status of features 123
Romulo-​Snyder agreement 212–​213 Southeast Asia Treaty Organization 257
Roosevelt, Franklin D. (Franklin Delano), Southeast Asian Fisheries Development Center
1882-​1945 212 v. National Labor Relations Commission
Roosevelt, Theodore, 1858-​1919 8, 27, 40 (1992) 340
RP-​US extradition treaty 459 Spratly Islands 79, 90, 114, 122, 124
RP-​US non-​surrender agreement 452, 457, 462 Starbright Sales Enterprises, Inc. 324
RP-​US treaty of friendship, cooperation and State of Indiana v. State of Kentucky
security 163, 246 (1890) 96
Rubrico v. Macapagal-​Arroyo (2010) 425 Styer, Wilhelm D. 408
Rubrico v. Macapagal-​Arroyo, Carpio-​Morales, subsidiary law-​creating process 176
J., Separate Opinion (2010) 428 Sulu-​Overbeck grant (1878) 150
Suplico v. National Economic Development
Sabah 88 Authority (2008) 231
Saguisag v. Ochoa, Jr. (2016) 254 Swiss Credit Bank. See Crédit suisse
Salas, Quintin 56, 58 Syquia v. Lopez (1949) 316
Salaveria and Gonzales v. Commissioner of
Internal Revenue (Court of Appeals, Talautse Isles (Sangi) 108
2015) 337 Tañada v. Angara (1997) 220
Salaveria and Gonzales v. Commissioner of Tax Code (1939) 339
Internal Revenue (Regional Trial Court, Tecson v. Commission on Elections, Puno, J.,
2014) 337 Separate Opinion (2004) 236

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Tecson, Pablo 68 United Nations Educational Scientific and

territorial sovereignty 94, 96 Cultural Organization 328
Thomas Shoal 79, 116, 122 United Nations. Commission on the Limits of
Tolentino v. Secretary of Finance (1994) 223 the Continental Shelf 82
Tomoyuki Yamashita. See Yamashita, United Nations. General Assembly.
Tomobumi, 1885–​1946 Declaration on the Rights of
Torture Victim Protection Act 283 Indigenous Peoples 137
Trajano, Agapita 268–​269 United States of America v. Guinto
Trajano, Archimedes 263–​264, 268 (1990) 320
treaty United States of America v. Ruiz (1985) 319
definition 211 United States. Army. Forces, Far East
Treaty of Paris (1898). See Treaty of Peace (USAFFE) 212
between the United States and Spain United States-​United Kingdom agreement
(1898 December 10) (1930) 147
Treaty of Peace between the United States and Universal Declaration of Human
Spain (1898 December 10) 4, 6, 21, 31 Rights 200, 363
Tripoli Agreement (1976). See Philippines. USAFFE. See United States. Army. Forces,
Treaties, etc. Moro National Liberation Far East
Front, 1976 December 23 USAFFE Veterans Association v. Treasurer of
Truman, Harry S., 1884–​1972 8, 31 the Philippines (1959) 212
Tubbataha Reefs (Philippines) 328
TVPA. See Torture Victim Protection Act Vatican City 324
Tydings-​McDuffie Act (1934) 29 Ver, Fabian C. 268
Convention to frame constitution 29 Verso Foundation, 446. See also Azio
Mandatory provisions 30 Foundation
Notification to foreign governments 30 Verstuyft, Leonce 330
Recognition of Philippine VFA. See Philippines-​United States Visiting
independence 30 Forces Agreement (VFA)
Vibur Foundation. 297–​298
U.S. v. Baldello (1904) 71 Vienna Convention of Law of the
U.S. v. Lardizabal (1903) 71 Treaties 244
U.S. v. Pacheco (1903) 72 jus cogens norms 481
U.S. v. Pagaduan (1917) 68 Vienna Convention on Diplomatic Relations
U.S. v. Purganan, Vitug, J., Dissenting Opinion (1961) 327
(2002) 227 Vinuya v. Romulo (Comfort Women)
U.S. v. Purganan, Vitug, J., Separate Opinion (2010) 179, 204, 378, 414
(2002) 175 Vitug, Jose 345, 359
U.S. v. Querijero (1906) 70
UNCLOS 1982. See United Nations Waller, Littleton 35, 40
Convention on the Law of the Sea water cure (torture) 35, 44
(1982 December 10) West Philippine Sea, 149. See also South
UNESCO. See United Nations Educational China Sea
Scientific and Cultural Organization WHO. See World Health Organization
United Kingdom-​United States Wildlife Resources Conservation and
agreement. See United States-​United Protection Act (2001) 93
Kingdom agreement (1930) WIPO. See World Intellectual Property
United Nations Convention on the Law of the Organization
Sea (1982 December 10) 77 World Health Organization 163, 197

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Index 493

World Health Organization v. Aquino Yamashita v. Styer (U.S. Supreme Court,

(1972) 330 1946) 419
World Intellectual Property Yamashita v. Styer before the Philippine
Organization 197 Supreme Court 377
World Trade Organization 220 Yamashita v. Styer, Murphy, J., Dissenting
agreement 221 Opinion (U.S. Supreme Court,
World War II. See World War, 1939-​1945 1946) 421
World War, 1939–​1945 376, 407 Yamashita v. Styer, Perfecto, J., Concurring
crimes and atrocities 409 and Dissenting Opinion (Philippine
testimonies 414 Supreme Court, 1945) 409
Wright v. Court of Appeals (1994) 350 Yamashita, Tomobumi, 1885-​1946 377, 408
Wright, Paul Joseph 350
writ of amparo 381, 427 Zafiro (British vessel) 65–​66
WTO. See World Trade Organization Zafiro case (1925) 36, 64
Zhong xing tong xun (Corporation) 232
Yamashita v. Styer (Philippine Supreme Court, ZTE. See Zhong xing tong xun (Corporation)
1945) 408

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