2020 Foreign Affairs Class Lecture Presentation
2020 Foreign Affairs Class Lecture Presentation
2020 Foreign Affairs Class Lecture Presentation
1
What is Public International Law?
2
Scope of Public International Law
Public International Law not only governs the relationships
between national governments, but also relationships
between intergovernmental organizations, and relationships
between national governments and intergovernmental
organizations, and to a certain extent individuals.
3
International law is a separate legal system in contrast
to law of the individual state which is referred to as
the internal/ domestic/ municipal law.
4
Subjects of International Law
1. States
2. International Organizations
3. Individuals
5
States
International Community 6
States States
International Community 7
States States
International
Organizations
International Community 8
States States
International Individuals
Organizations
International Community
Private International Law
Governs the choice of law when there are
conflicts in the municipal law of different
countries related to private transactions.
10
Foreign Law
Foreign law is essentially national law such as
constitutions, statutes, regulations, and court
decisions.
11
Sources of Public International Law
Article 38 of the Statute of the International Court of Justice lists four
sources of public law that the court will apply:
12
(1) International Agreements/Conventions.
(2) Customary International Law (general practice).
(3) General Principles of law (recognized by nations).
(4) Judicial Decisions of International & National
Courts (secondary sources)
(5) Writings of International Law Scholars (secondary
sources).
13
Basic Concepts/Principles
14
Obligations erga omnes
(Latin: in relation to everyone)
- Dictum of Barcelona Traction Case (1970), ICJ declared four erga omnes obligations:
15
Jus Cogens
(literally, compelling law)
Examples:
16
Hard Law from Soft Law
Hard law- refers to binding international legal norms or those which have coercive
character.
Examples of “hard law” are the provisions of the U.N. Charter, the Vienna Convention
on Diplomatic Relations, the Geneva Conventions of 1949 and other treaties in force.
Soft law - refers to norms that are non-binding in character but still have legal relevance.
Examples of “soft law” are resolutions of the U.N. General Assembly and draft articles
of the International Law Commission.
Soft law usually serves as a precursor of hard law. The Universal Declaration of Human
Rights is one such example. It was a “soft law” when it was adopted by resolution of the
U.N. General Assembly in 1948, but it has led to the development of “hard law” with
the adoption of two binding covenants on human rights, i.e., the International Covenant
on Civil and Political Rights andthe International Covenant on Economic, Social and
Cultural Rights.
17
Subjects of International Law
Government of Hong Kong Special Administrative Region
vs. Hon Felixberto T. Olalia, et al.
18
The Republic of the Philippines and the then British Crown Colony of
Hong Kong signed an "Agreement for the Surrender of Accused and
Convicted Persons." It took effect on June 20, 1997. On July 1, 1997,
Hong Kong reverted back to the People’s Republic of China and became
the Hong Kong Special Administrative Region.
Muñoz was charged before the Hong Kong Court with the offense of
"accepting an advantage as agent" and with the offense of conspiracy to
defraud. Warrants of arrest were issued against him in Hong Kong.
20
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 recognition that the individual person may properly be a
subject of international law is now taking root.
21
On a more positive note, also after World War II, both international
organizations 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.
22
The Philippines, along with the other members of the family of nations,
committed 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."
23
Subjects of International Law
States
International
Individuals
Organizations
International Community 24
What is a State?
- The state is the fundamental entity of international law.
1933 Montevideo Convention on the Rights and Duties of States
25
Legal Criteria for Statehood
1. Population of people
2. Territory
3. Government
4. Independence
26
Sovereign State
- Autonomous - internal self-governing - supreme –
independent of all alien dominion. Right to equality and
respect, the right to inviolability of territory and citizens and
other entitlements.
27
Difference between a State and a Nation
28
Recognition of State
29
1933 Montevideo Convention
on the Rights and Duties of States
30
Constitutive Theory of Statehood
Some have opposed the Declarative Theory, as they allow less-
recognized entities like the Republic of China or even entirely
non-recognized entities like the Principality of Sealand to claim
full status as states. According to the alternative , a state exists
only insofar as it is recognized by other states.
31
Recognition of Government
32
Guaranty Trust Co. of New York v. United States, 304 U.S. 126 (1938)
A State can also recognize a government yet choose not to have diplomatic
relations with it. For example, U.S. recognizes Castro’s government in
Cuba, but it does maintain an embassy there.
33
Act of State Doctrine
PCGG vs. SANDIGANBAYAN, ET AL,
G.R. No. 124772, August 14, 2007
34
In connection with criminal proceedings initiated in the Philippines to
locate, sequester and seek restitution of alleged ill-gotten wealth amassed
by the Marcoses and other accused from the Philippine Government, the
Office of the Solicitor General (OSG) wrote the Federal Office for Police
Matters in Berne, Switzerland, requesting assistance for the latter office to:
(a) ascertain and provide the OSG with information as to where and in
which cantons the ill-gotten fortune of the Marcoses and other accused
are located, the names of the depositors and the banks and the amounts
involved; and (b) take necessary precautionary measures, such as
sequestration, to freeze the assets in order to preserve their existing value
and prevent any further transfer thereof.
35
The Office of the District Attorney in Zurich, pursuant to the OSG’s
request, issued an Order directing the Swiss Banks in Zurich to freeze the
accounts of the accused in PCGG I.S. No. 1 and in the “List of Companies
and Foundations.” In compliance with said Order, Bankers Trust A.G.
(BTAG) of Zurich froze the accounts of Officeco Holdings, N.V.
(Officeco).
Thereafter, Officeco made representations with the OSG and the PCGG
for them to officially advise the Swiss Federal Office for Police Matters to
unfreeze Officeco’s assets. The PCGG required Officeco to present
countervailing evidence to support its request.
36
Instead of complying with the PCGG requirement for it to submit
countervailing evidence, Officeco filed the complaint with the
Sandiganbayan. The complaint prayed for the PCGG and the OSG to
officially advise the Swiss government to exclude from the freeze or
sequestration order the account of Officeco with BTAG and to
unconditionally release the said account to Officeco.
37
“The act of state doctrine is one of the methods by which States
prevent their national courts from deciding disputes which relate to the
internal affairs of another State, the other two being immunity and non-
justiciability. It is an avoidance technique that is directly related to a State’s
obligation to respect the independence and equality of other States by
not requiring them to submit to adjudication in a national court or to
settlement of their disputes without their consent. It requires the forum
court to exercise restraint in the adjudication of disputes relating to
legislative or other governmental acts which a foreign State has
performed within its territorial limits.”
38
“It is PCGG’s contention that the Sandiganbayan “could not grant or
deny the prayers in [Officeco’s] complaint without first examining and
scrutinizing the freeze order of the Swiss officials in the light of the
evidence, which however is in the possession of said officials” and that it
would therefore “sit in judgment on the acts of the government of
another country.” We disagree.
The parameters of the use of the act of state doctrine were clarified in
Banco Nacional de Cuba v. Sabbatino. There, the U.S. Supreme Court
held that international law does not require the application of this
doctrine nor does it forbid the application of the rule even if it is claimed
that the act of state in question violated international law. Moreover, due
to the doctrine’s peculiar nation-to-nation character, in practice the usual
method for an individual to seek relief is to exhaust local remedies and
then repair to the executive authorities of his own state to persuade them
to champion his claim in diplomacy or before an international tribunal.”
39
“Even assuming that international law requires the application of
the act of state doctrine, it bears stressing that the Sandiganbayan
will not examine and review the freeze orders of the concerned
Swiss officials in Civil Case No. 0164.
41
1987 Philippine Constitution
! Section II, Article II of the 1987 Constitution provides:
“The Philippines renounces war as an instrument of national
policy, adopts the generally-accepted principles of
international law as part of the law of the land, and adheres
to the policy of peace, equality, justice, freedom, cooperation
and amity with all nations.
42
Civil Code & Revised Penal Code
! Article 14 of the Civil Code provides: “[p]enal laws and those of public
security and safety shall be obligatory upon all who live and sojourn in
the Philippine territory, subject to the principles of public international
law and to treaty stipulations.
43
! 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 principles 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.
! Thus, 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. 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.
44
Ang LADLAD LGBT Party vs. COMELEC
[G.R. No. 190582. April 8, 2010]
45
Non-Discrimination and International Law
46
The principle of non-discrimination is laid out in Article 26 of the
ICCPR, as follows:
“All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”
Article 21.
(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
Article 25 Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in article 2 and without
unreasonable restrictions: (a) To take part in the conduct of public
affairs, directly or through freely chosen representatives;
48
We stress, however, that although this Court stands willing to assume
the responsibility of giving effect to the Philippines’ international law
obligations, the blanket invocation of international law is not the
panacea for all social ills.
49
Using even the most liberal of lenses, these Yogyakarta Principles,
consisting of a declaration formulated by various international law
professors, are – at best – de lege ferenda (a proposed principle that
can be applied to a given situation) – and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary
international law is characterized by the “soft law” nomenclature,
i.e., international law is full of principles that promote international
cooperation, harmony, and respect for human rights, most of which
amount to no more than well-meaning desires, without the support
of either State practice or opinio juris.
50
International School Alliance of Educators
vs. Hon. Leonardo A. Quisumbing
[G.R. No. 128845. June 1, 2000]
51
! That public policy abhors inequality and discrimination is
beyond contention. Our Constitution and laws reflect the policy
against these evils. The Constitution in the Article on Social
Justice and Human Rights exhorts Congress to "give highest
priority to the enactment of measures that protect and enhance
the right of all people to human dignity, reduce social,
economic, and political inequalities." The very broad Article 19
of the Civil Code requires every person, "in the exercise of his
rights and in the performance of his duties, [to] act with justice,
give everyone his due, and observe honesty and good faith.
52
! International law, which springs from general principles of law,
likewise proscribes 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
incorporated this principle as part of its national laws.
53
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.
54
Doctrine of State Immunity from Suit
55
German Agency for Technical Cooperation, et al.
vs. Court of Appeals
[G.R. No. 152318. April 16, 2009
56
On 7 September 1971, the governments of the Federal Republic of Germany
and the Republic of the Philippines ratified an Agreement concerning Technical
Co-operation (Agreement) in Bonn, capital of what was then West Germany.
The Agreement affirmed the countries’ “common interest in promoting the
technical and economic development of their States, and recogni[zed] the
benefits to be derived by both States from closer technical co-operation,” and
allowed for the conclusion of “arrangements concerning individual projects of
technical co-operation.
57
In the arrangement, both governments likewise named their respective
implementing organizations for SHINE. The Philippines designated the
Department of Health (DOH) and the Philippine Health Insurance
Corporation (Philhealth) with the implementation of SHINE. For their part,
the German government “charge[d] the Deustche Gesellschaft für Technische
Zusammenarbeit (GTZ) GmbH, Eschborn, with the implementation of its
contributions.
Several persons were then engaged by GTZ as contract employees to work for
SHINE on various dates between December of 1998 to September of 1999.
The employment contracts all specified Dr. Rainer Tollkotter, identified as an
adviser of GTZ, as the “employer.” At the same time, all the contracts
commonly provided that “[i]t is mutually agreed and understood that [Dr.
Tollkotter, as employer] is a seconded GTZ expert who is hiring the Employee
on behalf of GTZ and for a Philippine-German bilateral project named ‘Social
Health Insurance—Networking and Empowerment (SHINE)’ which will end at
a given time.
58
Thereafter. Anne Nicolay (Nicolay) assumed the post of SHINE Project
Manager. Disagreements arose between Nicolay and the Filipino contractual
employees on the direction of the project. The dispute culminated in a letter
signed by the employees, addressed to Nicolay, and copies furnished officials of
the DOH, Philheath, and the director of the Manila office of GTZ.
“The issues that we [the private respondents] have stated here are very crucial to
us in working for the project. We could no longer find any reason to stay with the
project unless ALL of these issues be addressed immediately and appropriately.”
The letter was construed by Nicolay to be a letter of resignation and she wrote
the employees that she was accepting the same.
59
GTZ, through counsel, filed a Motion to Dismiss, on the ground that the Labor
Arbiter had no jurisdiction over the case, as its acts were undertaken in the
discharge of the governmental functions and sovereign acts of the Government
of the Federal Republic of Germany.
This was opposed by private respondents with the arguments that GTZ had
failed to secure a certification that it was immune from suit from the
Department of Foreign Affairs, and that it was GTZ and not the German
government which had implemented the SHINE Project and entered into the
contracts of employment.
Labor Arbiter denied the motion and proceeded to rule on the dispute in favor
of the private respondents. GTZ brings the matter to the Court of Appeals
which rules against it. Case is brought up to the Supreme Court.
60
Argument of GTZ
- The SHINE project was implemented pursuant to the bilateral agreements between the
Philippine and German governments. GTZ was tasked, under the 1991 agreement, with the
implementation of the contributions of the German government. The activities performed
by GTZ pertaining to the SHINE project are governmental in nature, related as they are to
the promotion of health insurance in the Philippines. The fact that GTZ entered into
employment contracts with the private respondents did not disqualify it from invoking
immunity from suit, as held in cases such as Holy See v. Rosario, Jr., which set forth what
remains valid doctrine:
“Certainly, the mere entering into a contract by a foreign state with a private 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 thereof, then it is an act jure imperii, especially when it is not undertaken for gain or
profit.”
61
While GTZ was not performing proprietary functions notwithstanding its entry
into the particular employment contracts. Yet there is an equally fundamental
premise which GTZ failed to address, namely: Is GTZ, by conception, able to
enjoy the Federal Republics immunity from suit?
The principle of state immunity from suit, whether a local state or a foreign
state, is reflected in Section 9, Article XVI of the Constitution, which states
that the State may not be sued without its consent. Who or what consists of the
State? For one, the doctrine is available to foreign States insofar as they are
sought to be sued in the courts of the local State, necessary as it is to avoid
unduly vexing the peace of nations.
If the instant suit had been brought directly against the Federal Republic of
Germany, there would be no doubt that it is a suit brought against a State, and
the only necessary inquiry is whether said State had consented to be sued.
However, the present suit was brought against GTZ. It is necessary for us to
understand what precisely are the parameters of the legal personality of GTZ.
62
Ruling
GTZ did not supply any evidence defining its legal nature beyond that
of the bare descriptive “implementing agency.” Inherently, an agent acts
in behalf of a principal, and the GTZ can be said to act in behalf of the
German state. But that is as far as “implementing agency” could take us.
The term by itself does not supply whether GTZ is incorporated or
unincorporated, whether it is owned by the German state or by private
interests, whether it has juridical personality independent of the German
government or none at all.
63
State immunity from suit may be waived by general or special law. The
special law can take the form of the original charter of the incorporated
government agency.
64
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.
65
In the Philippines, the practice is for the foreign government or the
international organization to first secure an executive endorsement of its claim
of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies.
66
This decision should not be seen as deviation from the more common
methodology employed in ascertaining whether a party enjoys State immunity
from suit, one which focuses on the particular functions exercised by the party
and determines whether these are proprietary or sovereign in nature. The
nature of the acts performed by the entity invoking immunity remains the most
important barometer for testing whether the privilege of State immunity from
suit should apply.
At the same time, our Constitution stipulates that a State immunity from suit is
conditional on its withholding of consent; hence, the laws and circumstances
pertaining to the creation and legal personality of an instrumentality or agency
invoking immunity remain relevant. Consent to be sued, as exhibited in this
decision, is often conferred by the very same statute or general law creating the
instrumentality or agency.
67
China National Machinery & Equipment Corp.
vs.
Hon. Cesar D. Santamaria, et. al
[G.R. No. 185572. February 7, 2002
68
The Export Import Bank of China and the Department of Finance of
the Philippines entered into a Memorandum of Understanding, wherein
China agreed to extend Preferential Buyers Credit to the Philippine
government to finance the Northrail Project.
The Chinese government designated EXIM Bank as the lender, while the
Philippine government named the DOF as the borrower.
69
Two Theories on State Immunity
- 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.
70
The Philippines adheres to the Restrictive Theory.
- the existence of a contract does not, per se, mean that sovereign states
may, at all times, be sued in local courts. The complexity of relationships
between sovereign states, brought about by their increasing commercial
activities, mothered a more restrictive application of the doctrine.
71
Since the Philippines adheres to the restrictive theory, it is crucial to
ascertain the legal nature of the act involved whether the entity claiming
immunity performs governmental, as opposed to proprietary, functions.
72
Following the principles in the. GTZ case, it is readily apparent that
CNMEG cannot claim immunity from suit, even if it contends that it
performs governmental functions.
73
Republic of Indonesia vs. James Vinzon
[G.R. No. 154705. June 26, 2003]
74
Republic of Indonesia into a Maintenance Agreement in August 1995 with James
Vinzon, sole proprietor of Vinzon Trade and Services.
The Maintenance Agreement stated that Vinzon shall, for a consideration, maintain
specified equipment at the Embassy Main Building, Embassy Annex Building and
the Wisma Duta, the official residence of petitioner Ambassador Soeratmin. The
equipment covered by the Maintenance Agreement are air conditioning units,
generator sets, electrical facilities, water heaters, and water motor pumps.
It is likewise stated therein that the agreement shall be effective for a period of
four years and will renew itself automatically unless cancelled by either party by
giving thirty days prior written notice from the date of expiry.
75
Vinzon filed a complaint against Republic of Indonesia who then filed a Motion
to Dismiss, alleging that the it, as a foreign sovereign State, has sovereign
immunity from suit and cannot be sued as a party-defendant in the Philippines.
The said motion further alleged that Ambassador Soeratmin and Minister
Counsellor Kasim are diplomatic agents as defined under the Vienna
Convention on Diplomatic Relations and therefore enjoy diplomatic immunity.
In turn, respondent filed on March 20, 2001, an Opposition to the said motion
alleging that the Republic of Indonesia has expressly waived its immunity from
suit. He based this claim upon the following provision in the Maintenance
Agreement:
“Any legal action arising out of this Maintenance Agreement shall be settled
according to the laws of the Philippines and by the proper court of Makati City,
Philippines.”
76
Ruling
The rule that a State may not be sued without its consent is a necessary
consequence of the principles of independence and equality of States. As
enunciated in Sanders v. Veridiano II, the practical justification for the
doctrine of sovereign immunity is that there can be no legal right against
the authority that makes the law on which the right depends. In the case
of foreign States, the rule is derived from the principle of the sovereign
equality of States, as expressed in the maxim par in parem non habet
imperium. All states are sovereign equals and cannot assert jurisdiction
over one another. A contrary attitude would “unduly vex the peace of
nations.”
77
Sovereign Immunity Principles
1. Domestic application
-there can be no legal right against the authority that makes the law on
which the right depends.
- the rule is derived from the principle of the sovereign equality of States, as
expressed in the maxim par in parem non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another.
78
The rules of International Law, however, are neither unyielding nor
impervious to change. The increasing need of sovereign States to enter
into purely commercial activities remotely connected with the discharge
of their governmental functions brought about a new concept of
sovereign immunity. This concept, the restrictive theory, holds that the
immunity of the sovereign is recognized only with regard to public acts
or acts jure imperii, but not with regard to private acts or acts jure
gestionis.
80
“Hence, the existence alone of a paragraph in a contract stating that any
legal action arising out of the agreement shall be settled according to
the laws of the Philippines and by a specified court of the Philippines is
not necessarily a waiver of sovereign immunity from suit. The aforesaid
provision contains language not necessarily inconsistent with sovereign
immunity. On the other hand, such provision may also be meant to
apply where the sovereign party elects to sue in the local courts, or
otherwise waives its immunity by any subsequent act.
81
There is no dispute that the establishment of a diplomatic mission is an
act jure imperii. A sovereign State does not merely establish a
diplomatic mission and leave it at that; the establishment of a
diplomatic mission encompasses its maintenance and upkeep. Hence,
the State may enter into contracts with private entities to maintain the
premises, furnishings and equipment of the embassy and the living
quarters of its agents and officials. It is therefore clear that petitioner
Republic of Indonesia was acting in pursuit of a sovereign activity
when it entered into a contract with respondent for the upkeep or
maintenance of the air conditioning units, generator sets, electrical
facilities, water heaters, and water motor pumps of the Indonesian
Embassy and the official residence of the Indonesian ambassador.
82
Immunity of Diplomatic Agents
83
On the issue of whether or not Ambassador Soeratmin and Minister
Counsellor Kasim may be sued herein in their private capacities,
Article 31 of the Vienna Convention on Diplomatic Relations
provides …
84
Article 31, Vienna Convention on Diplomatic Relations
1. A diplomatic agent shall enjoy immunity from the criminal jurisidiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of
the mission;
85
The act of Ambassador Soeratmin and Minister Counsellor Kasim in
terminating the Maintenance Agreement is not covered by the
exceptions provided in the abovementioned provision.
86
Doctrine of State Immunity from Suit
and
Immunity of Diplomatic Agents
87
Khosrow Minucher, an Iranian national and a Labor Attaché for the
Iranian Embassies in Tokyo, Japan and Manila came to the country to
study in 1974 and continued to stay as head of the Iranian National
Resistance Movement.
88
In August 1988, Minucher filed Civil Case before the Regional Trial
Court (RTC) for damages on the ‘trumped-up’ charges of drug
trafficking made by Arthur Scalzo.
ISSUE:
89
“The Vienna Convention on Diplomatic Relations lists the classes of
heads of diplomatic missions to include:
(a) ambassadors or nuncios accredited to the heads of state,
(b) envoys, ministers or internuncios accredited to the heads of states;
and
(c) charges d' affairs accredited to the ministers of foreign affairs.
90
“Even while the Vienna Convention on Diplomatic Relations provides
for immunity to the members of diplomatic missions, it does so,
nevertheless, with an understanding that the same be restrictively
applied.
91
The main yardstick in ascertaining whether a person is a diplomat
entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature. Being an Attache, Scalzo’s main
function is to observe, analyze and interpret trends and developments
in their respective fields in the host country and submit reports to their
own ministries or departments in the home government.
92
However, vesting a person with diplomatic immunity is a
prerogative of the executive branch. In such matters, the hands of
the courts are virtually tied.
93
Under the related doctrine of State Immunity from Suit, the precept that a
State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law.
If the acts giving rise to a suit are those of a foreign government done by its
foreign agent, although not necessarily a diplomatic personage, but acting in
his official capacity, the complaint could be barred by the immunity of the
foreign sovereign from suit without its consent.
94
The proscription is not accorded for the benefit of an individual but for
the State, in whose service he is, under the maxim – par in parem, non
habet imperium – that all states are sovereign equals and cannot assert
jurisdiction over one another. The implication is that if the judgment
against an official would require the state itself to perform an affirmative
act to satisfy the award, such as the appropriation of the amount needed
to pay the damages decreed against him, the suit must be regarded as
being against the state itself, although it has not been formally impleaded.
95
A foreign agent, operating within a territory, can be cloaked with
immunity from suit but only as long as it can be established that he is
acting within the directives of the sending state. The consent of the
host state is an indispensable requirement of basic courtesy between
the two sovereigns.”
96
Concept of Territoriality
97
Command Responsibility
Lourdes D. Rubrico vs. Gloria Macapagal-Arroyo
G.R. No. 183871 February 18, 2010
98
On April 3, 2007, armed men belonging to the 301st Air
Intelligence and Security Squadron (AISS, for short) based in
Fernando Air Base in Lipa City abducted Lourdes D. Rubrico
(Lourdes), then attending a Lenten pabasa in Bagong Bayan,
Dasmariñas, Cavite, and detained at the air base without
charges. Following a week of relentless interrogation -
conducted alternately by hooded individuals - and what
amounts to verbal abuse and mental harassment, Lourdes,
chair of the Ugnayan ng Maralita para sa Gawa Adhikan, was
released at Dasmariñas, Cavite, her hometown, but only after
being made to sign a statement that she would be a military
asset.
99
After Lourdes’ release, the harassment, coming in the form of
being tailed on at least two occasions at different places, i.e.,
Dasmariñas, Cavite and Baclaran in Pasay City, by motorcycle-
riding men in bonnets, continued;
100
A week after Lourdes’ release, another daughter, Jean R.
Apruebo, was constrained to leave their house because of the
presence of men watching them;
101
Karapatan conducted an investigation on the incidents. The
investigation indicated that men belonging to the Armed
Forces of the Philippines led the abduction of Lourdes; that
unknown to the abductors, Lourdes was able to pilfer a
“mission order” which was addressed to CA Ruben Alfaro and
signed by Capt. Cuaresma of the PAF.
The petitioners then went before the Court of Appeals praying that
a writ of amparo be issued, ordering the individual respondents to
desist from performing any threatening act against the security of
the petitioners and for the Office of the Ombudsman (OMB) to
immediately file an information for kidnapping qualified with the
aggravating circumstance of gender of the offended party.
102
Before the CA, respondents President Gloria Macapagal-Arroyo,
Gen. Hermogenes Esperon, then Armed Forces of the Philippines
(AFP) Chief of Staff, et al. filed, through the Office of the Solicitor
General (OSG), a joint return on the writ specifically denying the
material inculpatory averments against them.
103
The dismissal of the petition with respect to Gen. Hermogenes
Esperon, P/Dir. Gen. Avelino Razon is raised as an issue before the
Supreme Court.
104
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 holding 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 liability,” 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).
105
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.
106
It may plausibly be contended that command responsibility, as
legal basis to hold military/police commanders liable for
extra-legal killings, enforced disappearances, 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.
107
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
conceived 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 criminal guilt requiring proof beyond reasonable
doubt x x x or administrative liability requiring substantial
evidence that will require full and exhaustive proceedings.”
108
If command responsibility were to be invoked and applied to
these proceedings, 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 covered 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
proceedings under existing administrative issuances, if there
be any.
109
REPUBLIC ACT NO. 9851
Section 9. Irrelevance of Official Capacity. - This Act 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 Act, nor shall it, in and of itself, constitute a
ground for reduction of sentence. However:
(a) Immunities or special procedural rules that may be attached to the official
capacity of a person under Philippine law other than the established constitutional
immunity from suit of the Philippine President during his/her tenure, shall not bar
the court from exercising jurisdiction over such a person; and
(b) Immunities that may be attached to the official capacity of a person under
international law may limit the application of this Act, but only within the bounds
established under international law.
110
Section 10. Responsibility of Superiors. - In addition to other grounds of
criminal responsibility for crimes defined and penalized under this Act, a
superior shall be criminally responsible as a principal for such crimes
committed by subordinates under his/her effective command and
control, or effective authority and control as the case may be, as a result
of his/her failure to properly exercise control over such subordinates,
where:
(a) That superior either knew or, owing to the circumstances at the time,
should have known that the subordinates were committing or about to
commit such crimes;
(b) That superior failed to take all necessary and reasonable measures
within his/her power to prevent or repress their commission or to submit
the matter to the competent authorities for investigation and prosecution.
111
TREATIES
112
BAYAN vs. Executive Secretary Ronaldo Zamora
G.R. No. 138570, Oct. 10, 2000
113
Primacy of Municipal Law and Statutes over Treaties
114
“From the perspective of public international law, a treaty is favored over
municipal law pursuant to the principle of pacta sunt servanda. Hence, “[e]very
treaty in force is binding upon the parties to it and must be performed by them
in good faith.” Further, a party to a treaty is not allowed to “invoke the
provisions of its internal law as justification for its failure to perform a treaty.”
Our Constitution espouses the opposing view. Witness our jurisdiction as stated
in section 5 of Article VIII:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international
or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.”
115
“In Ichong v. Hernandez, we ruled that the provisions of a treaty are
always subject to qualification or amendment by a subsequent law, or
that it is subject to the police power of the State. In Gonzales v.
Hechanova,
117
This is a petition for mandamus 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.
118
! In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country’s sole representative with foreign nations. Hence, the President is
vested with the authority to deal with foreign states and governments, extend
or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-
making, the President has the sole authority to negotiate with other states.
! Nonetheless, while the President has the sole authority to negotiate and enter
into treaties, the Constitution provides a limitation to his power by requiring
the concurrence of 2/3 of all the members of the Senate for the validity of
the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that “no treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the Members of
the Senate.”
119
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.
120
Treaty-making process
! NEGOTIATION may be undertaken directly by the head of
state but he now usually assigns this task to his authorized
representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the
other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of
the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations.
The negotiations may be brief or protracted, depending on
the issues involved, and may even “collapse” in case the
parties are unable to come to an agreement on the points
under consideration.
121
! If and when the negotiators finally decide on the terms of the
treaty, the same is opened for SIGNATURE. This step is
primarily intended as a means of authenticating the instrument
and for the purpose of symbolizing the good faith of the parties;
but, significantly, it does not indicate the final consent of the state
in cases where ratification of the treaty is required. The
document is ordinarily signed in accordance with the alternat, that
is, each of the several negotiators is allowed to sign first on the
copy which he will bring home to his own state.
122
! RATIFICATION, which is the next step, is the formal act by
which a state confirms and accepts the provisions of a treaty
concluded by its representatives. The purpose of ratification is to
enable the contracting states to examine the treaty more closely
and to give them an opportunity to refuse to be bound by it
should they find it inimical to their interests. It is for this reason
that most treaties are made subject to the scrutiny and consent of
a department of the government other than that which
negotiated them.
123
! The last step in the treaty-making process is the EXCHANGE
OF THE INSTRUMENTS OF RATIFICATION, which
usually also signifies the effectivity of the treaty unless a different
date has been agreed upon by the parties. Where ratification is
dispensed with and no effectivity clause is embodied in the treaty,
the instrument is deemed effective upon its signature
124
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.
125
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 has been held that a state has no legal or even moral duty to ratify a
treaty which has been signed by its plenipotentiaries. There is no legal
obligation to ratify a treaty, but it goes without saying that the refusal
must be based on substantial grounds and not on superficial or
whimsical reasons. Otherwise, the other state would be justified in
taking offense.
127
Are treaties required to be published in the Official Gazette before it can
come into effect?
Publication in the Official Gazette is not among the usual requirements for a
treaty to be in force, according to jurisprudence and to Philippine guidelines
on how treaties are negotiated and ratified.
128
Doctrine of Transformation
129
BAYAN MUNA VS. ROMULO
G.R. No. 159618, February 1, 2011
130
! The Rome Statute established the International Criminal Court
(ICC) with “the power to exercise its jurisdiction over persons
for the most serious crimes of international concern x x x 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.
131
! On December 28, 2000, the RP signed the Rome Statute which,
by its terms, is “subject to ratification, acceptance or approval”
by the signatory states.
132
RP-US Non-Surrender 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[7] dated May 13, 2003 (E/N
BFO-028-03, hereinafter), 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
international tribunals.
133
In response to a query of then Solicitor General Alfredo L.
Benipayo on the status of the non-surrender agreement,
Ambassador Ricciardone replied in his letter of October 28, 2003
that the exchange of diplomatic notes constituted a legally binding
agreement under international law; and that, under US law, the said
agreement did not require the advice and consent of the US Senate.
134
Whether or not E/N BFO-028-03 is a valid medium for
concluding the Agreement.
135
The United Nations Treaty Collections (Treaty Reference Guide)
defines the term “exchange of notes” as a record of a routine
agreement, that has many similarities with the private law contract.
The agreement consists of the exchange of two documents, each of
the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting
State repeats the text of the offering State to record its assent. The
signatories of the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is frequently
resorted to, either because of its speedy procedure, or, sometimes, to
avoid the process of legislative approval.
136
Whether or not Senate concurrence is required.
138
There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the
form of agreement is the parties’ intent and desire to craft an
international agreement in the form they so wish to further their
respective interests. 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.”
139
Save for the situation and matters contemplated in Sec. 25, Art. XVIII
of the Constitution – when a treaty is required, the Constitution does
not classify any subject, like that involving political issues, to be in the
form of, and ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the Senate by a vote
defined therein to complete the ratification process.
Sec. 25, Art. XVIII - After the expiration in 1991 of the [RP-US
Military Bases Agreement] foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate, and when Congress so requires, ratified x x
x in a national referendum held for that purpose, and recognized as a
treaty by the contracting state.
140
Whether or not the Agreement contravenes the Rome Statute
Art. 90 would show that the Agreement is not incompatible with the Rome
Statute. Specifically, Art. 90(4) provides that
“[i]f the requesting State is a State not Party to this Statute the requested State, if
it is not under an international obligation to extradite the person to the requesting
State, shall give priority to the request for surrender from the Court. x x x”
In applying the provision, certain undisputed facts should be pointed out: first,
the US is neither a State-Party nor a signatory to the Rome Statute; and second,
there is an international agreement between the US and the Philippines regarding
extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming
that the Philippines is a State-Party, the Rome Statute still recognizes the primacy
of international agreements entered into between States, even when one of the
States is not a State-Party to the Rome Statute.
141
Intellectual Property Association of the Philippines
vs. Ochoa, et al.
142
This is an action to declare as unconstitutional the ratification by
President Benigno S. Aquino III’s of the Protocol Relating to the
Madrid Agreement Concerning the International Registration of
Marks (Madrid Protocol).
143
Executive Order No. 459, Series of 1997, notes the following definitions,
to wit:
144
Commissioner of Customs v. Eastern Sea Trading" is instructive; to wit:
x x x The concurrence of said House of Congress 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
without such concurrence.
"Treaties are formal documents which require ratification with the approval o f two thirds o f the
Senate. Executive agreements become binding through executive action without the need of a vote
by the Senate or by Congress.
xxxx
"x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days of
our history we have entered into executive agreements covering such subjects as commercial and
consular relations, most-favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts.
xxxx
Agreements with respect to the registration of trade- marks have been concluded by the Executive
with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). x x x
xxx
145
AKBAYAN, et al. vs. Aquino et al.
[G.R. No. 170516, July 16, 2008]
146
Petitioners – non-government organizations, Congresspersons, citizens
and taxpayers – seek via the a petition for mandamus and prohibition to
obtain from respondents the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) including the Philippine and Japanese
offers submitted during the negotiation process and all pertinent
attachments and annexes thereto.
While the final text of the JPEPA has been made accessible to the public
since September 11, 2006, respondents do not dispute that, at the time the
petition was filed up to the filing of petitioners’ Reply – when the JPEPA
was still being negotiated – the initial drafts thereof were kept from public
view.
147
Privileged Character of Diplomatic Negotiations
148
Secrecy of negotiations with foreign countries is not violative of the
constitutional provisions of freedom of speech or of the press nor of
the freedom of access to information.
149
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text
of the JPEPA may not be kept perpetually confidential – since there should be “ample
opportunity for discussion before [a treaty] is approved” – the offers exchanged by the
parties during the negotiations continue to be privileged even after the JPEPA is
published.
It is reasonable to conclude that the Japanese representatives submitted their offers with
the understanding that “historic confidentiality” would govern the same. Disclosing
these offers could impair the ability of the Philippines to deal not only with Japan but
with other foreign governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public
scrutiny would discourage future Philippine representatives from frankly expressing their
views during negotiations. While, on first impression, it appears wise to deter Philippine
representatives from entering into compromises, it bears noting that treaty negotiations,
or any negotiation for that matter, normally involve a process of quid pro quo, and
oftentimes negotiators have to be willing to grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of greater national
interest.
150
Concept of Association
Province of North Cotabato vs. Government of the
Republic of the Philippines Peace Panel on Ancestral
Domain (GRP)
151
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace negotiating panels,
were scheduled to sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in
Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National
Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of the MNLF away from
an Islamic basis towards Marxist-Maoist orientations.
The signing of the MOA-AD between the GRP and the MILF did not to
materialize, however, for upon motion of petitioners, the Court issued a Temporary
Restraining Order enjoining the GRP from signing the MOA-AD same.
152
Do the contents of the MOA-AD violate the Constitution
and the laws?
153
In general, the objections against the MOA-AD center on the extent of
the powers conceded therein to the BJE. Petitioners assert that the powers
granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before
assessing some of the specific powers that would have been vested in the
BJE, however, it would be useful to turn first to a general idea that serves
as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD
explicitly alludes to this concept, indicating that the Parties actually framed
its provisions with it in mind.
154
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe the envisioned
relationship between the BJE and the Central Government.
“4. The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive compact. A
period of transition shall be established in a comprehensive peace compact specifying
the relationship between the Central Government and the BJE.”
The nature of the "associative" relationship may have been intended to be defined
more precisely in the still to be forged Comprehensive Compact. Nonetheless, given
that there is a concept of "association" in international law, and the MOA-AD - by its
inclusion of international law instruments in its TOR- placed itself in an international
legal context, that concept of association may be brought to bear in understanding the
use of the term "associative" in the MOA-AD.
155
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia
(FSM), formerly part of the U. S.-administered Trust Territory of the Pacific Islands, are associated states
of the U. S. pursuant to a Compact of Free Association. The currency in these countries is the U. S.
dollar, indicating their very close ties with the U. S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM generally have the
capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such
as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.
S. government, when conducting its foreign affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U. S. government) regards as relating to or affecting
either government.
156
In the event of attacks or threats against the Marshall Islands or the FSM, the U. S.
government has the authority and obligation to defend them as if they were part of U. S.
territory. The U. S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military
personnel of any third country from having access to these territories for military purposes.
In international practice, the "associated state" arrangement has usually been used as a
transitional device of former colonies on their way to full independence. Examples of states
that have passed through the status of associated states as a transitional phase are Antigua, St.
Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states.
157
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJE's capacity to
enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the
ASEAN and the specialized UN agencies, and the continuing responsibility of the Central
Government over external defense. Moreover, the BJE's right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection,
and sharing of revenues pertaining to the bodies of water adjacent to or between the
islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U. S. government on any foreign
affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely approximating it.
158
No province, city, or municipality, not even the ARMM, is recognized under our laws
as having an "associative" relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted by the Constitution to
any local or regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore,
already requires for its validity the amendment of constitutional provisions,
specifically the following provisions of Article X:
159
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.
The BJE is a far more powerful entity than the autonomous region recognized
in the Constitution
160
Godspeed!
161