MEJOFF v.

DIRECTOR OF PRISONS
G.R. NO. L-2855 JULY 30, 1949
PONENTE: BENGZON, J.
FACTS:
Boris Mejoff, an alien of Russian descent who was brought to this country from Shanghai as a secret
operative by the Japanese forces during the latter's regime in these Islands.  He was arrested on March 18, 1948 as
a Japanese spy, by U. S. Army Counter Intelligence Corps. and later there was an order for his release.   But on
April 5, 1948, the Board of Commissioners of Immigration declared that Mejoff had entered the Philippines
illegally in 1944 and ordered that he be deported on the first available transportation to Russia. He was transferred
to Cebu Provincial Jail and then Bilibid Prison at Muntinlupa on October, 1948. He then filed a petition for writ
of habeas corpus on the basis that too long a detention may justify the issuance of a writ of habeas corpus.
ISSUE:
Whether or not the writ of habeas corpus should be granted since he was detained longer than a
reasonable time
RULING:
NO. The meaning of "reasonable time" depends upon the circumstances, especially the difficulties of
obtaining a passport, the availability of transportation, the diplomatic arrangements concerned and the efforts
displayed to send the deportee away. Considering that this Government desires to expel the alien, and does not
relish keeping him at the people's expense, we must presume it is making efforts to carry out the decree of
exclusion by the highest officer of the land. On top of this presumption assurances were made during the oral
argument that the Government is really trying to expedite the expulsion of this petitioner. On the other hand, the
record fails to show how long he has been under confinement since the last time he was apprehended. Neither
does he indicate neglected opportunities to send him abroad. And unless it is shown that the deportee is being
indefinitely imprisoned under the pretense of awaiting a chance for deportation or unless the Government admits
that it cannot deport him or unless the detainee is being held for too long a period our courts will not interfere.  
"In the United States there were at least two instances in which courts fixed a time limit within which the
imprisoned aliens should be deported 5 otherwise their release would be ordered by writ of habeas corpus.
Nevertheless, supposing such precedents apply in this jurisdiction, still we have no sufficient data fairly to fix a
definite deadline."
The difference between this and the Borovsky case lies in the fact that the record shows this petitioner has
been detained since March, 1948. However, considering that in the United States (where transportation facilities
are much greater and diplomatic arrangements are easier to make) a delay of twenty months in carrying out an
order of deportation has not been held sufficient to justify the issuance of the writ of habeas corpus, this petition
must be, and it is hereby denied.

AGUSTIN v. EDU
88 SCRA 195 (1979)
PONENTE: FERNANDO, J.
FACTS:
On December 2, 1974, President Ferdinand Marcos issued Letter of Instruction (LOI) No. 229, which
required all motor vehicles to secure early warning devices (EWD) consisting of a pair of triangular, collapsible,
reflectorized plates in red and yellow to be purchased from the Land Transportation Commission. The purposes of
this LOI were to prevent accidents caused by vehicular obstructions and to adhere to the road safety standards
outlined in the 1968 Vienna Convention on Road Signs and Signals, which the Philippines had ratified as per PD
No. 207.
LOI No. 229 was later amended by LOI No. 479 issued on November 15, 1976. Unlike before where
owners of motor vehicles were required to purchase the reflectorized plates from the Land Transportation
Commission, LOI No. 479 now made it possible for said owners to buy early warning devices anywhere so long
as they adhere to the standards prescribed by the Land Transportation Commissioner.
President Marcos issued a six-month suspension of said LOI, after which he issued another LOI lifting its
suspension. On August 29, 1978, Land Transportation Commissioner Romeo Edu issued Memorandum Circular
No. 32, which contained LTC Administrative Order No. 1 or the rules and regulations in the implementation of
LOI No. 229 as amended.
Leovilo Agustin, a private citizen and owner of a Volkswagen Beetle Car, filed a petition before the SC,
assailing the constitutionality of both LOI No. 229 as amended and LTC Administrative Order No. 1. Among
others, Agustin claimed that LOI No. 229 was violative of the provisions and delegation of police power, an
oppressive, unreasonable, arbitrary, confiscatory, and unconstitutional order that was contrary to the precepts of
the New Society. Pending its final resolution, the Court issued a temporary restraining order preventing agencies
concerned from implementing both LOI No. 229 as amended and LTC Administrative Order No. 1.
The instruction, signed by President Marcos, aims to prevent accidents on streets and highways, including
expressways or limited access roads caused by the presence of disabled, stalled or parked motor vehicles without
appropriate early warning devices. The hazards posed by these disabled vehicles are recognized by international
bodies concerned with traffic safety. The Philippines is a signatory of the 1968 Vienna Convention on Road Signs
and Signals and the United Nations Organizations and the said Vienna Convention was ratified by the Philippine
Government under PD 207.
ISSUE:
Whether or not the Letters of Instruction No. 229 is invalid and violative of the constitutional
guarantees of due process.
RULING:
NO. The assailed Letter of Instruction was a valid exercise of police power and there was no unlawful delegation of
legislative power on the part of the respondent. As identified, police power is a state authority to enact legislation that may
interfere personal liberty or property in order to promote the general welfare. In this case, the particular exercise of police
power was clearly intended to promote public safety.
It cannot be disputed that the 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 nation.”  Thus, as impressed
in the 1968 Vienna Convention it is not for this country to repudiate a commitment to which it had pledged its word. Our
country’s word was resembled in our own act of legislative ratification of the said Hague and Vienna Conventions thru P.D.
No. 207.
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.
That is about all that needs be said. The rather court reference to equal protection did not even elicit any
attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such a casual
observation should be taken seriously. In no case is there a more appropriate occasion for insistence on what was
referred to as "the general rule" in Santiago v. Far Eastern Broadcasting Co., namely, "that the constitutionality of a law
wig not be considered unless the point is specially pleaded, insisted upon, and adequately argued."  "Equal protection"
is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect that success will
crown his efforts. The law is anything but that.

UNITED STATES v. GUINTO

182 SCRA 644, FEBRUARY 26, 1990
PONENTE: CRUZ, J.
FACTS:
These cases have been consolidated because they all involve the doctrine of state immunity. The United
States of America was not impleaded in the complaints below but has moved to dismiss on the ground that they
are in effect suits against it to which it has not consented. It is now contesting the denial of its motions by the
respondent judges.
In G.R. No. 76607, the private respondents are suing several officers of the US Air Force in Clark Air
Base in connection with the bidding conducted by them for contracts for barber services in the said base, which
was won by Dizon. The respondents wanted to cancel the award because they claimed that Dizon had included in
his bid an area not included in the invitation to bid, and also, to conduct a rebidding.
In G.R. No. 79470, Genove filed a complaint for damages for his dismissal as cook in the US Air Force
Recreation Center at Camp John Hay Air Station. It had been ascertained after investigation that Genove had
poured urine into the soup stock used in cooking the vegetables served to the club customers. The club manager
suspended him and thereafter referred the case to a board of arbitrators, which unanimously found him guilty and
recommended his dismissal.
In G.R. No. 80018, Bautista, a barracks boy in Camp O’ Donnell, was arrested following a buy-bust
operation conducted by petitioners, who were USAF officers and special agents of the Air Force Office. An
information was filed against Bautista and at the trial, petitioners testified against him. As a result of the charge,
Bautista was dismissed from his employment. He then filed for damages against petitioners claiming that it was
because of the latter’s acts that he lost his job.
And in, G.R. No. 80258, a complaint for damages was filed by private respondents against petitioners
(US military officers) for injuries allegedly sustained by the former when defendants beat them up, handcuffed
them and unleashed dogs on them. The petitioners deny this and claim that respondents were arrested for theft but
resisted arrest, thus incurring the injuries.
 In a motion to dismiss the complaint, the United States of America and the individually named defendants
argued that the suit was in effect a suit against the United States, which had not given its consent to be sued. The
defendants were also immune from suit under the RP-US Bases Treaty for acts done by them in the performance
of their official functions. The motion to dismiss was denied by the trial court and so the motion for
reconsideration. The defendants submitted their answer as required but subsequently filed their petition
for certiorari and prohibition with preliminary injunction with this Court. 
ISSUE:
Whether or not the defendants were immune from suit under the RP-US Bases Treaty for acts done
by them in the performance of their official duties.
RULING:
The rule that a State may not be sued without its consent is one of the generally accepted principles of
international law that were have adopted as part of the law of our land. Even without such affirmation, we would
still be bound by the generally accepted principles of international law under the doctrine of incorporation. Under
this doctrine, as accepted by the majority of the states, such principles are deemed incorporated in the law of
every civilized state as a condition and consequence of its membership in the society of nations. All states are
sovereign equals and cannot assert jurisdiction over one another. 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 states 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, the suit must be regarded as against
the state although it has not been formally impleaded. When the government 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.
It bears stressing at this point that the aforesaid principle do not confer on the USA 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
insulated 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 USA, 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 (commercial acts/jure gestionis). It is
only when the contract involves its sovereign or governmental capacity (governmental acts/jure imperii) that no
such waiver may be implied.
In G.R. No. 76607, the court finds the barbershops subject to the concessions granted by the US
government to be commercial enterprises operated by private persons. The Court would have directly resolved the
claims against the defendants as in USA vs RODRIGO, except for the paucity of the record as the evidence of the
alleged irregularity in the grant of the barbershop concessions were not available. Accordingly, this case was
remanded to the court below for further proceedings.
In G.R. No. 79470, the restaurant services offered at the John Hay Air Station partake of the nature of a
business enterprise undertaken by the US government in its proprietary capacity, as they were operated for profit,
as a commercial and not a governmental activity. Not even the US government can claim such immunity because
by entering into the employment contract with Genove in the discharge of its proprietary functions, it impliedly
divested itself of its sovereign immunity from suit. But the court still dismissed the complaint against petitioners
on the ground that there was nothing arbitrary about the proceedings in the dismissal of Genove, as the petitioners
acted quite properly in terminating Genove’s employment for his unbelievably nauseating act.
In G.R. No. 80018, it was clear that the petitioners were acting in the exercise of their official functions
when they conducted the buy-bust operation and thereafter testified against the complainant. For discharging their
duties as agents of the United States, they cannot be directly impleaded for acts imputable to their principal,
which has not given its consent to be sued.
In G.R. No. 80258 the contradictory factual allegations in this case need a closer study of what actually
happened. The record was too meager to indicate if the defendants were really discharging their official duties or
had actually exceeded their authority when the incident occurred. The needed inquiry must first be made by the
lower court so it may assess and resolve the conflicting claims of the parties.
WHEREFORE, after considering all the above premises, the Court hereby renders judgment as follows:
1. In G.R. No. 76607, the petition is DISMISSED and the respondent judge is directed to proceed with the
hearing and decision of Civil Case No. 4772. The temporary restraining order dated December 11, 1986,
is LIFTED.
2. In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829-R(298) is DISMISSED.
 3. In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115-C-87 is DISMISSED. The
temporary restraining order dated October 14, 1987, is made permanent.
4. In G.R. No. 80258, the petition is DISMISSED and the respondent court is directed to proceed with the
hearing and decision of Civil Case No. 4996. The temporary restraining order dated October 27, 1987, is
LIFTED.
5.
SECRETARY OF JUSTICE v. JUDGE LANTION AND JIMENEZ
G.R. NO. 139465, JANUARY 18, 2000
PONENTE: MELO, J.
FACTS:
Then President Ferdinand E. Marcos issued Presidential Decree 1069 "Prescribing the Procedure for the
Extradition of Persons Who Have Committed Crimes in a Foreign Country". Subsequently, then Secretary of
Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the
"Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the
United States of America.
The Senate, by way of Resolution 11, expressed its concurrence in the ratification of the said treaty. It
also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the
admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic
or consular officer of the requested state resident in the Requesting State).
On 18 June 1999, the Department of Justice received from the Department of Foreign Affairs U. S. Note
Verbale 0522 containing a request for the extradition of Mark Jimenez to the United States. Attached to the Note
Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District
of Florida, and other supporting documents for said extradition.
 Jimenez was charged in the United States for violation of: (a)18 USC 371 (Conspiracy to commit offense
or to defraud the United States, 2 counts); (b) 26 USC 7201 (Attempt to evade or defeat tax, 4 counts); (c)18 USC
1343 (Fraud by wire, radio, or television, 2 counts); (d)18 USC 1001 (False statement or entries, 6 counts), and
(d) 2 USC 441f (Election contributions in name of another; 33 counts).
On the same day, the Secretary issued Department Order 249 designating and authorizing a panel of attorneys
to take charge of and to handle the case. Pending evaluation of the aforestated extradition documents, Jimenez (on
1 July 1999 requested copies of the official extradition request from the US Government, as well as all documents
and papers submitted therewith, and that he be given ample time to comment on the request after he shall have
received copies of the requested papers. The Secretary denied the request. On 6 August 1999, Jimenez filed with
the Regional Trial Court a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the
Director of the National Bureau of Investigation,
a.  for mandamus (to compel the Justice Secretary to furnish Jimenez the extradition documents, to give him
access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and
thereafter to evaluate the request impartially, fairly and objectively);
b. certiorari (to set aside the Justice Secretary’s letter dated 13 July 1999); and prohibition (to restrain the
Justice Secretary from considering the extradition request and from filing an extradition petition in court;
c. and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act
directed to the extradition of Jimenez to the United States), with an application for the issuance of a
temporary restraining order and a writ of preliminary injunction.
The trial court ruled in favor of Jimenez. The Secretary filed a petition for certiorari before the Supreme Court
and by a vote of 9-6, the Supreme Court dismissed the petition and ordered the Justice Secretary to furnish
Jimenez copies of the, extradition request and its supporting papers and to grant him a reasonable period within
which to file his comment with supporting evidence.
ISSUE:
Whether or not the respondent Mark Jimenez is entitled to the basic rights of due process over the
government’s duties under a treaty.
RULING:
YES. First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the
same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private
respondent on foreign relations.
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 agreement therein in good faith. The observance of our country’s legal
duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that “[t]he
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.”
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. The doctrine of
incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which
there appears to be a conflict between a rule of international law and the provisions of the  constitution or statute
of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the generally accepted principles of international
law in observance of the Incorporation Clause in the above-cited constitutional provision. In a situation, however,
where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal
law, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such
courts are organs of municipal law and are accordingly bound by it in all circumstances. The fact that
international law has been made part of the law of the land does not pertain to or imply the primacy of
international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied
in most countries, decrees that rules of international 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 (Ibid.).
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-US
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 proceedings. From the procedures earlier abstracted,
after the filing of the extradition petition and during the judicial determination of the propriety of extradition, 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. Similarly, American
jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as
explained above, the prospective extraditee may even request for copies of the extradition documents from the
governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due
process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to
consider similar situations in jurisprudence for an application by analogy.
The basic principles of administrative law instruct us that “the essence of due process in administrative
proceedings is an opportunity to explain one’s side or an opportunity to seek reconsideration of the actions or
ruling complained of. In essence, procedural due process refers to the method or manner by which the law is
enforced. This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law
or treaty. Petitioner’s fears that the Requesting State may have valid objections to the Requested State’s non-
performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount
consideration. 
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four
corners of Presidential Decree No. 1069?
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights
of the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss of property or
employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The
convergence of petitioner’s favorable action on the extradition request and the deprivation of private respondent’s
liberty is easily comprehensible.
It was ruled time and again that this Courts equity jurisdiction, which is aptly described as "justice outside
legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements.
The constitutional issue in the case at bar does not even call for "justice outside legality," since private
respondent’s due process rights, although not guaranteed by statute or by treaty, are protected by constitutional
guarantees. The court would not be true to the organic law of the land if we choose strict construction over
guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on
which our Constitution is premised.
Thus, petitioner is ordered to furnish private respondent copies of the extradition request and its
supporting papers and to grant him a reasonable period within which to file his comment with supporting
evidence. 

KURODA v. JALANDONI
G.R. NO. L-2662 MARCH 26, 1949
PONENTE: MORAN, C.J.
FACTS:
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 19433 and 19444 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 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 seeking to establish the
illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents
Melville S. Hussey and Robert Port from participating in the prosecution of petitioner's case before the Military
Commission and to permanently prohibit respondents from proceeding with the case of petitioners.
Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for its acts
committed in violation of Hague Convention and the Geneva convention because the Philippines is not signatory
to Hague Convention and signed the Geneva only in 1947. He also challenges the participation of the two
American attorneys in the prosecution of his case on the ground that said attorneys are not qualified to practice
law in the Philippines.
ISSUE:
1. Whether or not the Executive Order no. 68 is a ground for the violations of our provision of
constitutional law and to our local law.
2. Whether or not Atty. Melville S. Hussey and Robert Port is allowed to practice the law professions
in the Philippines.
RULING:
1. YES. 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 principle of international law as part of
the law of nation.”
In accordance with the generally accepted principles of international law of the present day,
including the Hague and Geneva Convention and significant precedents of international jurisprudence
established by the U.N, all the persons, military or civilian, who have been guilty of planning, preparing,
or waging a war of aggression and commission of the crimes and offenses consequential and incidental
thereto, in violation of the laws and customs of war of humanity and civilization, are held accountable
therefore. 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 our Constitution.
Consequently, the President as Commander in Chief is fully empowered to consummate this
unfinished aspect of war namely the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.
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 regulation of the Hague and Geneva conventions form, part of and are wholly based on the
generally accepted principals of international law. In facts these rules and principles were accepted by the
two belligerent nation the United State and Japan who were signatories to the two Convention, Such rule
and principles therefore form part of the law of our nation even if the Philippines was not a signatory to
the conventions embodying them for our Constitution has been deliberately general and extensive in its
 scope and is not confined to the recognition of rule and principle of international law as continued inn
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 United States and thus, we were equally bound together with the
United States and with Japan to the right and obligation contained in the treaties between the belligerent
countries. These rights and obligation were not erased by our assumption of full sovereignty. If at all our
emergency as a free state entitles us to enforce the right on our own of trying and punishing those who
committed crimes against crimes against our people.
By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.
2. YES. In the first-place respondent Military Commission is a special military tribunal governed by a
special law and not by the Rules of court which govern ordinary civil court. It has already been shown
that Executive Order No. 68 which provides for the organization of such military commission is a valid
and constitutional law. There is nothing in said executive order which requires that counsel appearing
before said commission must be attorneys qualified to practice law in the Philippines in accordance with
the Rules of Court. In facts it is common in military tribunals that counsel for the parties are usually
military personnel who are neither attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the vindication of crimes
against her government and her people to a tribunal of our nation should be allowed representation in the
trial of those very crimes. If there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial and punishment of her
enemies. The least that we could do in the spirit of comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State
and its people have been equally if not more greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a privilege for our Republic that a leader
nation should submit the vindication of the honor of its citizens and its government to a military tribunal
The Military Commission having been convened by virtue of a valid law with jurisdiction over
the crimes charged which fall under the provisions of Executive Order No. 68, and having said petitioner
in its custody, this Court will not interfere with the due process of such Military commission.

ABBAS v. COMELEC
G.R. NO. 89651 NOVEMBER 10, 1989
PONENTE: CORTEZ, J.
FACTS:
The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in Mindanao
and Palawan in implementation of Republic Act No. 6734, entitled "An Act Providing for an Organic Act for the
Autonomous Region in Muslim Mindanao."
These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC)
from conducting the plebiscite and the Secretary of Budget and Management from releasing funds to the
COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof, unconstitutional.
After a consolidated comment was filed by Solicitor General for the respondents, which the Court
considered as the answer, the case was deemed submitted for decision, the issues having been joined.
Subsequently, petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on Respondents'
Comment and to Open Oral Arguments," which the Court noted.
The arguments against R.A. No. 6734 raised by petitioners may generally be categorized into either of the
following: (a) that R.A. 6734, or parts thereof, violates the Constitution, and (b) that certain provisions of R.A.
No. 6734 conflict with the Tripoli Agreement.
Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the
land, being a binding international agreement. 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.
Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the
land, being a binding international agreement. 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.
Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in Mindanao,
contrary to the Constitution on the autonomous region which make the creation of such region dependent upon the
outcome of the plebiscite.
Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734. According to
petitioners, said provision grants the President the power to merge regions, a power which is not conferred by the
Constitution upon the President. That the President may choose to merge existing regions pursuant to the Organic
Act is challenged as being in conflict with Article X, Section 10.
ISSUE:
1. Whether Tripoli Agreement is binding and part of the law of the land.
2. Whether RA 6734 violates the Constitutional provision on the creation of the autonomous region.
3. Whether there is a conflict between the power of the President to merge administrative regions with
the constitutional provision requiring a plebiscite in the merger of local government units.
RULING:
1. NO. The Tripoli Agreement, more specifically, the Agreement Between the Government of the Republic
of the Philippines and Moro National Liberation Front took effect on December 23, 1976. It provided for
"the establishment 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."
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.
2. NO. Under the Constitution and R.A. No. 6734, the creation of the autonomous 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 cities 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.
It will readily be seen that the creation of the autonomous region is made to depend, not on the
total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the
proviso underscores this.
It is thus clear that what is required by the Constitution is a simple majority of votes approving
the Organic Act in individual constituent units and not a double majority of the votes in all constituent
units put together, as well as in the individual constituent units.
3. NO. It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative
region, which are mere groupings of contiguous provinces for administrative purposes. Administrative
regions are not territorial and political subdivisions like provinces, cities, municipalities and barangays.
While the power to merge administrative regions is not expressly provided for in the Constitution, it is a
power which has traditionally been lodged with the President to facilitate the exercise of the power of
general supervision over local government. There is no conflict between the power of the President to
merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local
government units because the requirement of a plebiscite in a merger expressly applies only to provinces,
cities, municipalities or barangays, not to administrative regions.
 MANILA PRINCE HOTEL v. GSIS
G.R. NO. 122156, FEBRUARY 3, 1997
PONENTE: BELLOSILLO, J.
FACTS:
Pursuant to the privatization program of the Philippine Government under Proclamation No. 50 dated
December 8, 1986, the GSIS,petitioner, decided to sell 30 up to 51 % of the shares of Manila Hotel Corporation
(MHC).
There are only two bidders participated; 1) Manila Prince Hotel Corporation, a Filipino corporation,
which offered 51% of MHC shares at P41.58 per share and 2) Renong Berhad, a Malaysian firm, which bid for
the same shares at P44.00 per share more than the bid of petitioner.
Pending the declaration of Renong Berhad as winning bidder, the petitioner matched the bid price and
sent a check to serve as Bid Security but the respondent refused to accept.
Perhaps apprehensive that respondent disregarded the matching of bid price by the petitioner and that the
sale of 51% of the MHC may be hastened by the respondent GSIS and consummated by Renong Berhad, the
petitioner came to the court on prohibition and mandamus.
The court issued a temporary restraining order enjoining respondent from perfecting and consummating
the sale to the Malaysian firm.
The petitioner invoked Sec. 10, second par., Art. VII of the 1987 Constitution also known as The Filipino
First Policy because of its bid to acquire 51% shares of the Manila Hotel Corporation which owned the “historic”
Manila Hotel.
The respondent GSIS opposed that the provision is not self-executing and that Manila Hotel does not fall
under the term national patrimony.
ISSUE:
1. Whether or not Sec. 10, second par. Art. XII of the Constitution is self-executing.
2. Whether or not the 51% share of Manila Hotel falls under the term national patrimony.
RULING:
1. YES. Section 10, par. 2, Article XII of the 1987 Constitution is a self-executing provision and does not
need implementing legislation to carry it into effect.
Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-
self-executing but simply for purposes of style.  But, certainly, the legislature is not precluded from
enacting further laws to enforce the constitutional provision so long as the contemplated statute squares
with the Constitution.  Minor details may be left to the legislature without impairing the self-executing
nature of constitutional provisions.
Respondents argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not
self-executing. The argument is flawed.  If the first and third paragraphs are not self-executing
because Congress is still to enact measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate
and exercise authority over foreign investments within its national jurisdiction, as in the third
paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it
does not by its language require any legislation in order to give preference to qualified Filipinos in
the grant of rights, privileges and concessions covering the national economy and patrimony.  A
constitutional provision may be self-executing in one part and non-self-executing in another.
 Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which
is complete in itself and which needs no further guidelines or implementing laws or rules for its
enforcement.  From its very words the provision does not require any legislation to put it in operation.  It
is per se judicially enforceable.  When our Constitution mandates that [i]n the grant of rights, privileges,
and concessions covering national economy and patrimony, the State shall give preference to qualified
Filipinos, it means just that - qualified Filipinos shall be preferred.  And when our Constitution declares
that a right exists in certain specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently, if there is no statute
especially enacted to enforce such constitutional right, such right enforces itself by its own inherent
potency and puissance, and from which all legislations must take their bearings.  Where there is a right
there is a remedy.  Ubi jus ibi remedium.
 2. YES. When our Constitution speaks of national patrimony, it refers not only to the natural resources but
also to the cultural heritage of our country. Manila Hotel has become a landmark-a living testimonial of
Philippine heritage.
For more than eight (8) decades Manila Hotel has borne mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and nationhood.  Verily, Manila Hotel has become
part of our national economy and patrimony.  For sure, 51% of the equity of the MHC comes within the
purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who
acquires or owns the 51% will have actual control and management of the hotel.  In this instance, 51% of the
MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands.  Consequently, we
cannot sustain respondents’ claim that the Filipino First Policy provision is not applicable since what is being
sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which
the building stands.

TANADA v. ANGARA
G.R. NO. 118295, MAY 2, 1997
PONENTE: PANGANIBAN, J.
FACTS:
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of the Department of Trade and Industry
(Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations
(Final Act, for brevity) binding the Philippine Government to submit to its respective competent authorities the
WTO (World Trade Organization) Agreements to seek approval for such.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from
the President of the Philippines, stating among others that "the Uruguay Round Final Act is hereby submitted to
the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another letter from the President of
the Philippines likewise dated August 11, 1994, which stated among others that "the Uruguay Round Final Act,
the Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and the
Understanding on Commitments in Financial Services are hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption
of P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing the World Trade
Organization."
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 ratifying such WTO
Agreement.
On December 29, 1994, the present petition was filed. After careful deliberation on respondents’
comment and petitioners’ reply thereto, the Court resolved on December 12, 1995, to give due course to the
petition, and the parties thereafter filed their respective memoranda.
Petitioner averred that: (a) the WTO Agreement as one that limits, restricts, and impair Philippine
economic sovereignty and legislative power; and (b) the Filipino First policy of the Constitution was taken for
granted as it gives foreign trading intervention.
Thus, this petition seeking to nullify the Philippine ratification of the World Trade Organization
Agreement. The petitioners challenged the concurrence of the respondents by signing the agreement.
ISSUE:
1. Whether or not the provisions of the ‘Agreement Establishing the World Trade Organization and
the Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three
(3) of that agreement’ cited by petitioners directly contravene or undermine the letter, spirit and
intent of Section 19, Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.
RULING:
1. NO. By its very title, Article II of the Constitution is a "declaration of principles and state policies." The
counterpart of this article in the 1935 Constitution 21 is called the "basic political creed of the nation" by
Dean Vicente Sinco. 22 These principles in Article II are not intended to be self-executing principles
ready for enforcement through the courts. 23 They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the
 leading case of Kilosbayan, Incorporated v. Morato, 24 the principles and state policies enumerated in
Article II and some sections of Article XII are not "self-executing provisions, the disregard of which can
give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional
rights but guidelines for legislation."
The provisions of Sec. 10 and 12, Article XII of the Constitution, general principles relating to
the national economy and patrimony, is enforceable only in regard to “the grants or rights, privileges and
concessions covering national economy and patrimony” and not to every aspect of trade and commerce.
While the Constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, at the
same time, it recognizes the need for business exchange with the rest of the world on the bases of equality
and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade
practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy.
On the other hand, there is no basis on the contention that under WTO, local industries will all be
wiped out and that Filipino will be deprived of control of the economy, in fact, WTO recognizes need to
protect weak economies like the Philippines.
2. NO. The WTO agreement does not unduly limit, restrict, and impair the Philippine sovereignty,
particularly the legislative power granted by the Philippine Constitution. The Senate was acting in the
proper manner when it concurred with the President’s ratification of the agreement.
While 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. Unquestionably, the Constitution did not
envision a hermit-type isolation of the country from the rest of the world. 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, and adheres to the policy of peace, equality, justice, freedom, cooperation and
amity, with all nations.” By the doctrine of incorporation, the country is bound by generally accepted
principles of international 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 x x x. A state which has contracted valid international obligations
is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of
the obligations undertaken.”
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. After all, states, like individuals, live with coequals, and
in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise
of their otherwise absolute rights. 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 governing 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. As aptly put by John F. Kennedy, “Today, no nation can build its destiny alone. The age of
self-sufficient nationalism is over. The age of interdependence is here.”
The WTO reliance on “most favored nation,” “national treatment,” and “trade without
discrimination” cannot be struck down as unconstitutional as in fact they are rules of equality and
reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on “equality and
reciprocity,” the fundamental law encourages industries that are “competitive in both domestic and
foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade environment,
but one in favor of the gradual development of robust industries that can compete with the best in the
foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to
compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in
Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under
a policy of laissez faire.

REPUBLIC v. SANDIGANBAYAN
407 SCRA 10 JULY 21, 2003
FACTS:
 This is a petition for review on certiorari seeking to set aside the Resolutions of the Sandiganbayan (First
Division) in a civil case. The first Resolution dismissed petitioner’s Amended Complaint and ordered the return of
the confiscated items to respondent Elizabeth Dimaano, while the second Resolution denied petitioner’s Motion
for Reconsideration. Petitioner prays for the grant of the reliefs sought in its Amended Complaint, or in the
alternative, for the remand of this case to the Sandiganbayan (First Division) for further proceedings allowing
petitioner to complete the presentation of its evidence.
Immediately upon her assumption to office, then President Corazon C. Aquino issued EO No. 1creating
the Presidential Commission on Good Government which is primarily tasked the PCGG to recover all ill-gotten
wealth of former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates. This law also vested the PCGG with the power "(a) to conduct investigation as may be necessary in
order to accomplish and carry out the purposes of this order" and the power "(h) to promulgate such rules and
regulations as may be necessary to carry out the purpose of this order."
Accordingly, the PCGG created an AFP Anti-Graft Board tasked to scrutinize the reports of unexplained
wealth and corrupt practices by any AFP personnel (active or retired). The AFP Board investigated various
reports of alleged “ill-gotten” wealth of respondent Maj. Gen. Josephus Ramas. Along with this, the Constabulary
raiding team served a search and seizure warrant on the premises of Ramas’ alleged mistress, Elizabeth Dimaano.
The PCGG filed a petition for forfeiture under Republic Act No. 1379 against Ramas. The Amended
Complaint alleged that Ramas was the Commanding General of the Philippine Army until 1986. On the other
hand, Dimaano was a confidential agent of the Military Security Unit, Philippine Army, assigned as a clerk-typist
at the office of Ramas. It alleged that Ramas "acquired funds, assets and properties manifestly out of proportion to
his salary as an army officer and his other income from legitimately acquired property by taking undue advantage
of his public office and/or using his power, authority and influence as such officer of the Armed Forces of the
Philippines and as a subordinate and close associate of the deposed President Ferdinand Marcos.
It prayed for forfeiture of respondents’ properties, funds and equipment in favor of the State. In his
Answer, Ramas contended that his property consisted only of a residential house at La Vista Subdivision, Quezon
City, valued at ₱700,000, which was not out of proportion to his salary and other legitimate income. He denied
ownership of any mansion in Cebu City and the cash, communications equipment and other items confiscated
from the house of Dimaano.
Admitting her employment as a clerk-typist in the office of Ramas from January-November 1978 only,
Dimaano claimed ownership of the monies, communications equipment, jewelry and land titles taken from her
house by the Philippine Constabulary raiding team. The Sandiganbayan dismissed the Amended Complaint on the
ground that there was an illegal search and seizure of the items confiscated. The counterclaims are likewise
dismissed for lack of merit, but the confiscated sum of money, communications equipment, jewelry and land titles
are ordered returned to Elizabeth Dimaano. Petitioner filed its Motion for Reconsideration, which was denied.
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.
ISSUE:
Whether or not the Bill of Rights under the 1973 Constitution was operative during the
interregnum.
RULING:
NO. The Supreme Court hold that the Bill of Rights under the 1973 Constitution was not operative during
the interregnum. However, we rule that the protection accorded to individuals under the Covenant and the
Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary government were the supreme law
because no constitution limited the extent and scope of such directives and orders. With the abrogation of the
1973 Constitution by the successful revolution, there was no municipal law higher than the directives and orders
of the revolutionary government. Thus, during the interregnum, a person could not invoke any exclusionary right
under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum.
To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum
would render void all sequestration orders issued by the PCGG before the adoption of the Freedom Constitution.
The sequestration orders, which direct the freezing and even the takeover of private property by mere executive
issuance without judicial action, would violate the due process and search and seizure clauses of the Bill of
Rights. During the interregnum, the government in power was concededly a revolutionary 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. However, upon the adoption of the Freedom Constitution, the
sequestered companies assailed the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
If any doubt should still persist in the face of the foregoing considerations as to the validity and propriety
of sequestration, freeze and takeover orders, it should be dispelled by the fact that these particular remedies and
the authority of the PCGG to issue them have received constitutional approbation and sanction.
As already mentioned, the Provisional or "Freedom" Constitution recognizes the power and duty of the
President to enact "measures to achieve the mandate of the people to recover ill-gotten properties amassed by the
leaders and supporters of the previous regime and protect the interest of the people through orders of sequestration
or freezing of assets or accounts." And as also already adverted to, Section 26, Article XVIII of the 1987
Constitution treats of, and ratifies the "authority to issue sequestration or freeze orders under Proclamation No. 3
dated March 25, 1986." Even during the interregnum the Filipino people continued 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 government, 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 recognized in the present Covenant."
Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure that no one
shall be subjected 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 "no 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
obligated 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. 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.
As the de jure government, the revolutionary government could not escape responsibility for the State’s
good faith compliance with its treaty obligations under international law. It was only upon the adoption of the
Provisional Constitution on 25 March 1986 that the directives and orders of the revolutionary government became
subject to a higher municipal law that, if contravened, rendered such directives and orders void. 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 government.
The directives and orders should not have also violated the Covenant 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. However, the
Constabulary raiding team seized items not included in the warrant.
Clearly, the raiding team exceeded its authority when it seized these items. The seizure of these items was
therefore void, and unless these items are contraband per se, and they are not, they must be returned to the person
from whom the raiding seized them, Dimaano.
POE-LLAMANZARES v. COMELEC & ELAMPARO
GR NO. 221697, MARCH 8, 2016
FACTS:
Petitioner Mary Grace Natividad S. Poe-Llamanzares was found abandoned as a newborn infant in the
Parish Church of Jaro, Iloilo on Sept. 3, 1968. After passing the parental care and custody over petitioner by
Edgardo Militar to Emiliano Militar and his wife, she has been reported and registered as a foundling and issued a
Foundling Certificate and Certificate of Live Birth, thus was given the name, Mary Grace Natividad Contreras
Militar.
When the petitioner reached the age of five (5), celebrity spouses Ronal Allan Kelley (aka Fernando Poe,
Jr) and Jesusa Sonora Poe (aka Susan Roces) filed a petition foe her adoption. The trial court granted their petition
and ordered that her name be changed to Mary Grace Natividad Sonora Poe.
 Petitioner registered as a voter in San Juan City at the age of 18 in 1986; in 1988, she applied and was
issued Philippine Passport by the DFA; in 1993 and 1998, she renewed her passport.
She left for the United States (U.S.) in 1988 to continue her studies after enrolling and pursuing a degree
in Development Studies at the University of the Philippines. She graduated in 1991 from Boston College where
she earned her Bachelor of Arts degree in Political Studies.
She married Teodoro Misael Daniel V. Llamanzares, a citizen of both the Philippines and the U.S., in San
Juan City and decided to flew back to the U.S. after their wedding. She gave birth to her eldest child while in the
U.S.; and her two daughters in the Philippines.
She became a naturalized American citizen in 2001. She came back to the Philippines to support her
father’s candidacy for president in the May 2004 elections and gave birth to her youngest daughter. They then
returned to the U.S. in 2004 but after few months, she rushed back to the Philippines to attend to her ailing father.
After her father’s death, the petitioner and her husband decided to move and reside permanently in the Philippines
in 2005 and immediately secured a TIN, then her children followed suit; acquired property where she and her
children resided.
In 2006, She took her Oath of Allegiance to the Republic of the Philippines pursuant to RA No. 9225 or
the Citizenship retention and Re-acquisition Act of 2003; she filed a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her three children which was granted.
She registered as a voter; secured Philippine passport; appointed and took her oath as Chairperson of the MTRCB
after executing an affidavit of Renunciation of American citizenship before the Vice Consul of the USA and was
issued a Certificate of Loss of Nationality of the USA in 2011.
In 2012, she filed with the COMELEC her Certificate of Candidacy (COC) for Senator for the 2013
Elections wherein she answered “6 years and 6 months” to the question “Period of residence in the Philippines
before May 13, 2013.” Petitioner obtained the highest number of votes and was proclaimed Senator on 16 May
2013.
On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. In her
COC, the petitioner declared that she is a natural-born citizen and that her residence in the Philippines up to the
day before 9 May 2016 would be ten (10) years and eleven (11) months counted from 24 May 2005. The
petitioner attached to her COC an “Affidavit Affirming Renunciation of U.S.A. Citizenship” subscribed and
sworn to before a notary public in Quezon City on 14 October 2015.
Petitions were filed before the COMELEC to deny or cancel her candidacy on the ground particularly,
among others, that she cannot be considered a natural-born Filipino citizen since she cannot prove that her
biological parents or either of them were Filipinos.  The COMELEC en banc cancelled her candidacy on the
ground that she was in want of citizenship and residence requirements, and that she committed material
misrepresentations in her COC.
On certiorari, the Supreme Court reversed the ruling and held (9-6 votes) that Poe is qualified as a
candidate for Presidency.  Three justices, however, abstained to vote on the natural-born citizenship issue.
ISSUE:
Whether or not Mary Grace Natividad S. Poe-Llamanzares is a natural-born Filipino citizen .
RULING:
YES. Mary Grace Natividad S. Poe-Llamanzares may be considered a natural-born Filipino. It ruled that
a foundling is a natural-born citizen of the Philippines as there is no restrictive language which would definitely
exclude foundlings as they are already impliedly so recognized.
There are also no provisions in the Constitution with intent or language permitting discrimination against
foundlings as the three Constitution’s guarantee the basic right to equal protection of the laws.
Foundlings are citizens under international law as this is supported by some treaties, adhering to the
customary rule to presume foundlings as having born of the country in which the foundling is found. The
transformation method requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. On the other hand, 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 obligations. Generally accepted principles of international law include
international custom as evidence of a general practice accepted as law, and general principles of law recognized
by civilized nations. International customary rules are accepted as binding as a result from the combination of two
elements: the established, widespread, and consistent practice on the part of States; and a psychological element
known as the opinionjuris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a
belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.
  "General principles of law recognized by civilized nations" are principles "established by a process of
reasoning" or judicial logic, based on principles which are "basic to legal systems generally," such as "general
principles of equity, i.e., the general principles of fairness and justice," and the "general principle against
discrimination" which is embodied in 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." These are the same core principles which underlie
the Philippine Constitution itself, as embodied in the due process and equal protection clauses of the Bill of
Rights.
Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our Constitution. The
presumption of natural-born citizenship of foundlings stems from the presumption that their parents are nationals
of the Philippines.
As the empirical data provided by the PSA show, that presumption is at more than 99% and is a virtual
certainty.
In sum, all of the international law conventions and instruments on the matter of nationality of foundlings
were designed to address the plight of a defenseless class which suffers from a misfortune not of their own
making. We cannot be restrictive as to their application if we are a country which calls itself civilized and a
member of the community of nations. The Solicitor General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of
foundlings renders them legally invisible. It would be tragically ironic if this Honorable Court
ended up using the international instruments which seek to protect and uplift foundlings a tool to
deny them political status or to accord them second-class citizenship.
NICARAGUA v. USA
ICJ REPORTS 1986, JUNE 27,1986
FACTS:
In July 1979, the Government of President Somoza was replaced by a government installed
by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former Somoza Government and former
members of the National Guard opposed the new government. The US – initially supportive of the new
government – changed its attitude when, according to the United States, it found that Nicaragua was providing
logistical support and weapons to guerrillas in El Salvador. In April 1981 the United States stopped its aid to
Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake
activities directed against Nicaragua”.
The armed activities against the new Government was carried out mainly by
(1)   Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica. Initial US
support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. Later, the
United States officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the
United States Congress made specific provision for funds to be used by United States intelligence agencies for
supporting “directly or indirectly military or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics, and that the contras were paid for and directly controlled by
the United States. Nicaragua also alleged that some attacks against Nicaragua were carried out, directly, by the
United States military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua
included the mining of Nicaraguan ports, and other attacks on ports, oil installations, and a naval base. Nicaragua
alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence, supply
to the contras in the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s
jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however, stated that it
relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter when it provided
“upon request proportionate and appropriate assistance…” to Costa Rica, Honduras, and El Salvador in response
to Nicaragua’s acts of aggression against those countries (paras 126, 128).
ISSUE:
1. Whether or not the US violate its customary international law obligation not to intervene in the
affairs of another State, when it trained, armed, equipped, and financed the contra forces or
 when it encouraged, supported, and aided the military and paramilitary activities against
Nicaragua.
2. Whether or not the US violate its customary international law obligation not to use force
against another State, when it directly attacked Nicaragua in 1983 and 1984 and when its
activities in point (1) above resulted in the use of force?
3.  Whether or not the military and paramilitary activities that the US undertook in and against
Nicaragua be justified as collective self-defence.
4. Whether or not the US breach its customary international law obligation not to violate the
sovereignty of another State, when it directed or authorized its aircrafts to fly over the territory
of Nicaragua and because of acts referred to in (2) above.
RULING:
1. YES. The Court held that the United States violated its customary international law obligation not to use
force against another State when its activities with the contras resulted in the threat or use of force.
The Court held that the prohibition on the use of force is found both in Article 2(4) of the Charter
of the United Nations (UN Charter) and in customary international law. In a controversial finding the
Court sub-classified the use of force as: (1) “most grave forms of the use of force” (i.e. those that
constitute an armed attack); and (2) “other less grave forms” of the use of force (i.e. organizing,
instigating, assisting, or participating in acts of civil strife and terrorist acts in another State – when the
acts referred to involve a threat or use of force, but not amounting to an armed attack).
The United States violated the customary international law prohibition on the use of force when it
laid mines in Nicaraguan ports. It also violated this prohibition when it attacked Nicaraguan ports, oil
installations, and a naval base (see below). The United States could only justify its action on the basis of
collective self-defence, if certain criteria were met.
The United States violated the customary international law prohibition on the use of force when it
assisted the contras by “organizing or encouraging the organization of irregular forces and armed bands…
for incursion into the territory of another state” and participated “in acts of civil strife…in another State”
and when these acts involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use of force. On the
contrary, Nicaragua had previously argued before the Court that the United States determined the timing
of offensives against Nicaragua when it provided funds to the contras. The Court held that “…it does not
follow that each provision of funds by the United States was made to set in motion a particular offensive,
and that that offensive was planned by the United States.” The Court held further that the arming and
training of the contras and the supply of funds, in itself, only amounted to acts of intervention in the
internal affairs of Nicaragua and did not violate the prohibition on the use of force.
2. YES. The Court held that the United States violated its customary international law obligation not to use
force against another State when it directly attacked Nicaragua in 1983 and 1984.
A controversial but interesting aspect of the Court’s judgement was its definition of an armed
attack. The Court held that an armed attack included: (1) action by regular armed forces across an
international border; and (2) “the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of (sic) armed force against another State of such gravity as to amount
to (inter alia) an actual armed attack conducted by regular forces, or its (the State’s)
substantial involvement therein”.
The second point somewhat resembles Article 3(g) of the UNGA Resolution 3314 (XXIX) on the
Definition of Aggression.
The Court further held that mere frontier incidents will not considered as armed attacks, unless,
because of its scale and effects, it would have been classified as an armed attack had it been carried out by
regular forces.
Assistance to rebels by providing weapons or logistical support did not constitute an armed
attack. Instead, it can be regarded as a threat or use of force or an intervention in the internal or external
affairs of other States.
Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use
of force that amounts to an armed attack.
3. NO. The Court held that the United States could not justify its military and paramilitary activities on the
basis of collective self-defence.
Article 51 of the UN Charter sets out the treaty-based requirements on the exercise of the right of
self-defense. It states that nothing in the present Charter shall impair the inherent
 right of individual or collective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self-defence  shall be immediately
reported to the Security Council.
The Court held that customary international law allows for exceptions to the prohibition on the
use of force, which includes the right to individual or collective self-defence. The United States, at an
earlier stage of the proceedings, had also agreed that the UN Charter acknowledges the existence of this
customary international law right when it talks of the .
When a State claims that it used force in collective self-defence, the Court would examine the
following: (1) Whether the circumstances required for the exercise of self-defence existed; and (2)
Whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements
of international law.
Under international law, several requirements must be met for a State to exercise the right
of individual or collective self-defence: (1)  a State must have been the victim of an armed attack; (2)  that
State must declare itself as a victim of an armed attack. The assessment on whether an armed attack had
taken place or not, is done by the State who was subjected to the attack. A third State cannot exercise a
right of collective self-defence based that third State’s own assessment; (3) in the case of collective self-
defence, the victim State must request for assistance. The Court held that “there is no rule permitting the
exercise of collective self-defence in the absence of a request by the State which regards itself as the
victim of an armed attack”; and (4)  a State that is attacked, does not, under customary international law,
have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an
armed attack happened – but the Court held that “the absence of a report may be one of the factors
indicating whether the State in question was itself convinced that it was acting in self-defence”.
Whatever influence the Charter may have had on customary international law in these matters, it
is clear that in customary international law it is not a condition of the lawfulness of the use of force in
self-defence that a procedure so closely dependent on the content of a treaty commitment and of the
institutions established by it, should have been followed. On the other hand, if self-defence is advanced as
a justification for measures which would otherwise be in breach both of the principle of customary
international law and of that contained in the Charter, it is to be expected that the conditions of the
Charter should be respected.
Thus, for the purpose of enquiry into the customary law position, the absence of a report may be
one of the factors indicating whether the State in question was itself convinced that it was acting in self-
defence.
The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica, and
Honduras to determine if (1) an armed attack was undertaken by Nicaragua against the three countries,
which in turn would (2) necessitate those countries to act in self-defence against Nicaragua. The
Court noted that (1) none of the countries who were allegedly subject to an armed attack by Nicaragua
declared themselves as victims of an armed attack; (2) they did not request assistance from the United
States to exercise its right of self-defence; (3) the United States did not claim that when it used force, it
was acting under Article 51 of the UN Charter; and (4) the United States did not report that it was acting
in self-defense to the Security Council. The Court concluded that, based on the above, the United States
cannot justify its use of force as collective self-defence.
In any event, the Court held that the criteria relating to necessity and proportionality, that is
required to be met when using force in self-defence – were also not fulfilled.
4. YES. The Court held that the United States breached its CIL obligation not to intervene in the affairs of
another State, when it trained, armed, equipped and financed the contra forces or encouraged, supported
and aided the military and paramilitary activities against Nicaragua. 
The Court held that the principle of non-intervention requires that every State has a right to
conduct its affairs without outside interference. In other words, the principle “…forbids States or groups
of States to intervene directly or indirectly in internal or external affairs of other States.” This is a
corollary of the principle of sovereign equality of States.
The Court also held that a prohibited intervention must accordingly be one bearing on matters in
which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the
choice of a political, economic, social and cultural system, and the formulation of  foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such choices, which must
remain free ones. The element of coercion, which defines, and indeed forms the very essence of,
 prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in
the direct form of military action, or in the indirect form of support for subversive or terrorist armed
activities within another State.
Nicaragua stated that the activities of the United States were aimed to overthrow the government
of Nicaragua, to substantially damage the economy and to weaken the political system with the aim to
coerce the Government of Nicaragua to accept various political demands of the United States.
The financial support, training, supply of weapons, intelligence and logistic support given by the
United States to the contras violated the principle of non-interference. “…(N)o such general right of
intervention, in support of an opposition within another State, exists in contemporary international law”,
even if such a request for assistance is made by an opposition group of that State.
However, in a controversial finding, the Court held that the United States did not devise the
strategy, direct the tactics of the contras or exercise control on them in manner so as to make their acts
committed in violation of international law imputable to the United States.
The Court concluded that “a number of military and paramilitary operations of the contras were
decided and planned, if not actually by United States advisers, then at least in close collaboration with
them, and on the basis of the intelligence and logistic support which the United States was able to offer,
particularly the supply aircraft provided to the contras by the United States” but not all contra operations
reflected strategy and tactics wholly devised by the United States.
Interesting, however, the Court also held that providing “…humanitarian aid to persons or forces
in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful
intervention, or as in any other way contrary to international law”.
While an armed attack would give rise to an entitlement to collective self-defence, a use of force
of a lesser degree of gravity cannot as the Court has already observed produce any entitlement to take
collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even
assuming them to have been established and imputable to that State, could only have justified
proportionate counter-measures on the part of the State which had been the victim of these acts, namely
El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the
United States, and particularly could not justify intervention involving the use of force.
PORTUGAL v. INDIA,
[1960] ICJ REP 6, NOVEMBER 26, 1957
FACTS:
The Portuguese possessions in India included the two enclaves of Dadra and Nagar-Aveli which, in mid-
1954, had passed under an autonomous local administration. Portugal claimed that it had a right of passage to
those enclaves and between one enclave and the other to the extent necessary for the exercise of its sovereignty
and subject to the regulation and control of India; it also claimed that, in July 1954, contrary to the practice
previously followed, India had prevented it from exercising that right and that that situation should be redressed.
ISSUE:
Whether or not Portugal has a right to free passage over Indian territory to access its enclave.
RULING:
YES. The right of passage for non-military civilians exists as a rule of regional customary international
law between India and Portugal. India argued before the Court that practice between only two states was not
sufficient to form a local custom. The Court rejected this reasoning, finding no reason why a century and a quarter
of practice based on mutual rights and obligations was insufficient for local custom to arise. This local practice,
thus, prevailed over any general rules. Local customary law can exist as long as the elements in the North Sea
Continental Shelf case are made out.

FACTORY AT CHORZOW (GERMANY V. POLAND)

1928 P.C.I.J. (SER. A) NO. 17 (SEPT. 13, 1928)
FACTS:
The Chorzow Factory case is a first of its kind dispute that arose between Germany and Poland before the
erstwhile Permanent Court of International Justice that involved the issue of paying reparation by Poland to
Germany for having breached an agreement entered between them. After the first world war, a bipartite
agreement was entered wherein the control of Upper Silesia area was transferred by Germany to Poland on the
condition that Poland would not forfeit any property of Germany. However, Poland in breach of the agreement
sold two German factories located in that area.
 On March 5th, 1915, a contract was concluded between the Chancellor of the German Empire, on behalf
of the Reich, and the Bayerische Stickstoffwerke A.-G. of Trostberg, Upper Bavaria, by which contract this
Company undertook "to establish for the Reich and to begin forthwith the construction of", amongst other things,
a nitrate factory at Chorzow in Upper Silesia. The necessary lands were to be acquired on behalf of the Reich and
entered in its name in the land register. T
he machinery and equipment were to be in accordance with the patents and licences of the Company and
the experience gained by it, and the Company undertook to manage the factory until March 31st, 1941, making
use of all patents, licences, experience gained, innovations and improvements, as also of all supply and delivery
contracts of which it had the benefit.
In pursuance of the same it was decided that another company would be created which was to a certain
extent be subject to the supervision of the Reich which would have the right to the surplus profit that arose each
financial year. The Reich had the power to terminate the contract for the management of the factory by
Bayerische Stickstoffwerke A.-G by serving a fifteen months’ notice if it the Reich’s surplus did not reach a fix
level.
Accordingly, on 24th December 1919, a series of legal instruments were signed and legalized at Berlin
with a view to the formation of a new Company, the Oberschlesische Stickstoffwerke A.- G., and the sale by the
Reich to that Company of the factory at Chorzow. The sale included the whole of the land, buildings and
installations belonging thereto, with all accessories, reserves, raw material, equipment and stocks. The
management and working were to remain in the hands of the Bayerische Stickstoffwerke Company, which, for
this purpose, was to utilize its patents, licences, experience gained and contracts. These relations between the two
Companies were confirmed by means of letters dated December 24th and 28th, 1919, exchanged between them.
The Oberschlesische Stickstoffwerke Company was duly entered on 29th January 1920, at the
Amtsgericht of Konigshütte, in the Chorzow land register, as owner of the landed property constituting the nitrate
factory of Chorzow. On 1st July 1922, by way of a decision way passed to the effect that the registration in
question was null and void and was to be cancelled, the pre-existing position being restored, and that the property
rights of the lands in question were to be registered in the name of the Polish Treasury.
This decision, which cited Article 256 of the Treaty of Versailles and the Polish law and decree of July
14th, 1920, and June 16th, 1922, was put into effect the same day. On July 3rd, 1922, Poland took possession of
the factory and took over the management in accordance with the terms of the decree. The German Government
contends and the Polish Government admits that the said delegate, in undertaking the control of the working of
the factory, at the same time took possession of the movable property, patents, licences, etc. In response, the
German company, Oberschlesische Stickstoffwerke filed a suit before the Germano-Polis Arbital Tribunal where
it demanded that the claim be allowed and Polish Government be ordered to restore the factory and make any
other reparation that the Court deems fit to fix and pay the costs of the action. In reply, the Polish Government
asked the Court to declare that it had no jurisdiction to try the case. While the matter was pending before the
Tribunal, Germany approached the PCIJ.
ISSUE:
1. Whether the court has its jurisdiction over the matter or not. (YES)
2. Whether there was any violation of the agreement between Germany and Poland or not. (YES)
3. Whether there was any international obligation on Poland due to the breach of the bipartite
agreement between Germany and Poland. (YES)

RULING:
The rule of Permanent Court of International Justice was very appropriate, which was given in favour of
Germany as the attitude of Polish Government towards two German companies was not in conformity with the
articles of Convention concerning Upper Silesia, concluded at Geneva on May 15th, 1922 (hereinafter referred as
Geneva Convention), thus violating the international agreement by unlawful expropriation of the said companies
and that infers the state responsibility on Poland for reparation for such violation.
It is a general principle of International law that every violation of an engagement involves an obligation
to make reparation adopted form municipal law, which is applied in this case along with the principle of state
responsibility as a state is considered as an individual entity when comes to an international dispute and it was
accepted by all, repetition of which confirms that the decision is conform to existing law. A recent initiative of the
International Law Commission at its fifty-third session, in 2001 gave the state responsibility a more precise scope
for the application of the principle of state responsibility. Observation of similar cases undertook by the
Permanent Court of International justice. If compared with the reasoning with this case would be quite new to that
time, therefore it is highly unlikely that any consistent previous reasoning could be found in similar cases. But the
decision has already been significantly influenced the jurisprudence of International law and its impact can be
seen in various cases such i.e. Genocide Convention Case, Phosphates in Morocco case, Corfu Channel case,
Gabčíkovo-Nagymaros and others.
The PCIJ adequately justified its reasoning by bringing all the disputed matters and argument presented
before it or by suo moto. At first, it had justified its jurisdiction which was under question by Poland as raised in
respect of res judicata showing Article 23 of Geneva Convention, but the court justified its jurisdiction by
referring Article 36 of the Statute of the Court. In order to reason the compensation declared was also justified by
Article 6 -22, special by Article 7 of Geneva Convention and by its interpretation. It also interpreted the municipal
laws as well as customary international laws with a new view of International law concerning the subject matter
of international law.
The appropriate interpretation was made by PCIJ in every point, such as the interpretation of Article 36 of
the Statute of the Court to justify its jurisdiction. The Article said the parties can go to the court in all or any of the
classes of legal dispute concerning (a) the interpretation of a Treaty; (b) the existence of any fact which, if
established, would constitute a breach of an international obligation; (c) the nature or extent of the reparation to be
made for the breach of an international obligation.
It brings the general concept of law that every violation of an engagement involves an obligation
reparation. And the violation was clarified as Poland violated Article 7 of Geneva convention and illegally
expropriate two of German factories. In this case, the court further interpreted that the expropriating state must, in
addition to paying the compensation due in respect of a lawful expropriation, pay also damages for any loss
sustained by the injured party.
The reasoning that the PCIJ has given is logical and consistent to me. First of all, the court acted
interpreting the Geneva Convention, where the parties agreed to come before the court on any violation of the
convention. Secondly, as one party denied the jurisdiction of the court citing the concerning law, the court
clarified the ambiguity of that matter and the shadow over the jurisdiction became clear. Thirdly, when the court
saw the violation of Geneva convention Articles 6 -22, the court ordered indemnity referring the principle of
international law, as mentioned by the court, “It is a principle of international law that the reparation of wrong
may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as
a result of the act which is contrary to international law.”  Fourthly, It was a question who would indemnify as
therefore the court held, in a different plane” to private law, with the claimant State being the one entitled to claim
damages. Id. It also noted that it was open for states to create private tribunals to adjudicate private claimants’
claims for breach of international law, but that nothing in Article 23 of the Geneva Convention affected
Germany’s entitlement to claim damages in this case”. So the state (Poland) was made liable to indemnify
Germany.
In the question of whether the expropriation was legal or illegal, the PCIJ held that” this was not a
situation where a governmental seizure would have been made “lawful” by simply paying “fair compensation”; it
was a seizure of a kind that was
Banned outright under the 1922 Geneva Convention and would only have been lawful had the treaty’s
“exceptional” procedures been followed. Which is the fifth reasoning with adequate logic.
Where the indemnity amount is concerned the court gave its reasoning, is the sixth consistent point. The
court held “The essential principle contained in the actual notion of an illegal act-a principle which seems to be
established by international practice and in particular by the decisions of arbitral tribunals-is that reparation must,
as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all
probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment
of a sum corresponding to the value which restitution in kind would bear; the award, if need be, of damages for
loss sustained which would not be covered by restitution in kind or payment in place of it-such are the principles
which should serve to determine the amount of compensation due for an act contrary to international law”.
Thought the liability, indemnity or reparation, as well as state responsibility, was not questioned but M.
EHRLICH, Advocate of Poland has raised some point on his dissenting opinion that the court had ignored some
issues as well as some arguments regarding the jurisdiction of the PCIJ, but as far the documents are concerned it
is evident in my prospect; the court had considered his arguments with explanations. So, it can be concluded on
the question of consideration, that the court did not omit any issues or arguments. Therefore, the decision was
neither questioned nor weakened. Moreover, it was highly appreciated by jurists all over the world.
This case has strengthened the interpretation of the jurisdiction of international law. it confirms the use of
municipal law consistently in international law, but most importantly this case leads the jurists of international
law to have some new thought about state responsibility and therefore they decided to include the interpretation of
the court in the material source of international law. The light of the present case decision has observed in Draft
Articles on Responsibility of States for Internationally Wrongful Acts, by International Law Commission and
Article 60 of Vienna convention 1969 as well as the Rule 150 of Geneva convention (1949)
In every sphere of life, there always been another way, it depends on us how we want to treat it. So I think
if I say there was no alternative approach I must be wrong but so far my limited knowledge sees the approach is
very appropriate to the public policy. In my opinion, the decision is very satisfactory as and it could not be any
better.
This extraordinary case with exclusive interpretation binds the jurists of international law to have new
thoughts about the matters of the jurisdiction of the international court, state responsibility, reparation as well as
the necessary elements to weight this matter by the of law. It also gives use legal precedent which will be a
supportive material for understanding and analyzation of the cases which is in the nature is similar to the factor in
the matter of concerning issues regarding the matter of international law but it would not have any binding force
as International Law doesn’t consider the previous judgments as binding for during the judgment of new cases as
the international law treats every new case with a fresh view as every case have its different facts as well as
merits, which they think should be considered not being influenced by other cases.
FEDERAL REPUBLIC OF GERMANY V. DENMARK AND V NETHERLANDS
[1969] ICJ REP 3
The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for the
formation of customary international law: (1) State practice (the objective element) and (2) opinio juris (the
subjective element). In these cases, the Court explained the criteria necessary to establish State practice –
widespread and representative participation. It highlighted that the practices of those States whose interests were
specially affected by the custom were especially relevant in the formation of customary law. It also held  that
uniform and consistent practice was necessary to demonstrate opinio juris – opinio juris is the belief that
State practice amounts to a legal obligation. The North Sea Continental Self Cases also dispelled the myth that
duration of the practice (i.e. the number of years) was an essential factor in forming customary international law. 
The case involved the delimitation of the continental shelf areas in the North Sea between Germany and
Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these States.
The parties requested the Court to decide the principles and rules of international law that are applicable to the
above delimitation because the parties disagreed on the applicable principles or rules of delimitation. Netherlands
and Denmark relied on the principle of equidistance (the method of determining the boundaries in such a way that
every point in the boundary is equidistant from the nearest points of the baselines from which the breath of the
territorial sea of each State is measured). Germany sought to get a decision in favour of the notion that the
delimitation of the relevant continental shelf was governed by the principle that each coastal state is entitled to a
just and equitable share (hereinafter called just and equitable principle/method). Contrary to Denmark and
Netherlands, Germany argued that the principle of equidistance was neither a mandatory rule in delimitation of
the continental shelf nor a rule of customary international law that was binding on Germany. The Court was not
asked to delimit because the parties had already agreed to delimit the continental shelf as between their countries,
by agreement, after the determination of the Court on the applicable principles.
FACTS:
Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and
C-D). An agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands
wanted this prolongation to take place based on the equidistance principle (B-E and D-E) whereas Germany was
of the view that, together, these two boundaries would produce an inequitable result for her. Germany stated that
due to its concave coastline, such a line would result in her losing out on her share of the continental shelf based
on proportionality to the length of its North Sea coastline. The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so, the Court had to decide if the principles espoused by
the parties were binding on the parties either through treaty law or customary international law.
ISSUE:
Is Germany under a legal obligation to accept the equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a
customary international law rule or on the basis of the Geneva Convention?
RULING:
NO. The use of the equidistance method had not crystallised into customary law and the method was not
obligatory for the delimitation of the areas in the North Sea related to the present proceedings.
Article 6 of the Geneva Convention stated that unless the parties had already agreed on a method for
delimitation or unless special circumstances exist, the equidistance method would apply. Germany had signed, but
not ratified, the Geneva Convention, while Netherlands and Denmark were parties to the Convention. The latter
two States argued that while Germany is not a party to the Convention (not having ratified it), she was  still bound
by Article 6 of the Convention because:
“…(1)  by conduct, by public statements and proclamations, and in other ways, the Republic has
unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being generally applicable to the delimitation of continental
shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as
to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken
up” (the latter is called the principle of estoppel).
The Court rejected the first argument. It said that only a ‘very definite very consistent course of conduct
on the part of a State would allow the Court to presume that the State had somehow become bound by a treaty (by
a means other than in the formal manner: i.e. ratification) when the State was ‘at all times fully able and entitled
to…’ accept the treaty commitments in a formal manner. The Court held that Germany had not unilaterally
assumed obligations under the Convention. The court also took notice of the fact that even if Germany ratified the
treaty, she had the option of entering into a reservation on Article 6, following which that particular article would
no longer be applicable to Germany (in other words, even if one were to assume that Germany had intended to
become a party to the Convention, it does not presuppose that it would have also undertaken those obligations
contained in Article 6).
The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980,
discusses in more detail treaty obligations of third States (those States who are not parties to the treaty). It clearly
stipulates that obligations arise for third States from a provision of a treaty only if (1) the actual parties to the
treaty intended the provision to create obligations for third States; and (2) third State expressly accept
those obligations in writing (Article 35 of the VCLT). The VCLT was not in force when the Court deliberated on
this case. However, as seen above, the Court’s position is consistent the VCLT. (See the relevant provisions of
the Vienna Convention on the Law of Treaties).
The Court held that the existence of a situation of estoppel would have allowed Article 6 to become
binding on Germany – but held that Germany’s action did not support an argument for estoppel. The Court also
held that the mere fact that Germany may not have specifically objected to the equidistance principle as contained
in Article 6, is not sufficient to state that the principle is now binding upon it. In conclusion, the Court held that
Germany had not acted in any manner so as to incur obligations contained in Article 6 of the Geneva Convention.
The equidistance–special circumstances rule was not binding on Germany by way of treaty law.
Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international
law on the subject of continental shelf delimitation’ and that it existed independently of the Convention.
Therefore, they argued, Germany is bound by the subject matter of Article 6 by way of customary international
law.
To decide if the equidistance principle bound Germany by way of customary international law, the Court
examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being drawn
up; and (2) its status after the Convention came into force.
The Court held that the principle of equidistance, as contained in Article 6 did not form a part of existing
or emerging customary international law at the time of drafting the Convention. The Court supported this finding
based on (1) the hesitation expressed by the drafters of the Convention, the International Law Commission, on the
inclusion of Article 6 into the Convention and (2) the fact that  reservations to Article 6 was permissible under the
Convention. The Court held:
“… Article 6 is one of those in respect of which, under the reservations article of the Convention
(Article 12) reservations may be made by any State on signing, ratifying or acceding, – for
speaking generally, it is a characteristic of purely conventional rules and obligations that, in
regard to them, some faculty of making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or customary law rules and obligations
which, by their very nature, must have equal force for all members of the international
community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at
will by any one of them in its own favor…. The normal inference would therefore be that any
articles that do not figure among those excluded from the faculty of reservation under Article 12,
were not regarded as declaratory of previously existing or emergent rules of law …” (see para 65
for a counter argument and the Court’s careful differentiation)
The Court then examined whether the rule contained in Article 6 had become customary international law
after the Convention entered into force – either due the Convention itself (i.e., if enough States had ratified the
Convention in a manner so as to fulfil the criteria specified below), or because of subsequent State practice (i.e.
even if an adequate number of States had not ratified the Convention, one could find sufficient State practice to
meet the criteria below). The Court held that Article 6 of the Convention had not attained a customary law status.
(Compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 relating to international
humanitarian law in terms of the latter’s authority as a pronouncement of customary international law).
For a customary rule to emerge the Court held that it needed: (1) very widespread and representative
participation in the Convention, including States whose interests were specially affected (in this case, they were
coastal States) (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken
in a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In
the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.
The Court held that the first criteria was not met. The number of ratifications and accessions to the
Convention (39 States) were not adequately
The Court held that the duration taken for a customary law rule to emerge is not as important as
widespread and representative participation, uniform usage, and the existence of an opinio juris. It held that:
“Although the passage of only a short period of time (in this case, 3 – 5 years) is not necessarily,
or of itself, a bar to the formation of a new rule of customary international law on the basis of
what was originally a purely conventional rule, an indispensable requirement would be that
within the period in question, short though it might be, State practice, including that of States
whose interests are specially affected, should have been both extensive and virtually uniform in
the sense of the provision invoked and should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved.”
Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so far as those
acts or omissions were done following a belief that the said State is obligated by law to act or refrain from acting
in a particular way. (For more on opinio juris click here).
The Court examined 15 cases where States had delimited their boundaries using the equidistance method,
after the Convention came into force (paras. 75 -77). The Court concluded that even if there were some State
practice in favour of the equidistance principle, the Court could not deduct the necessary opinio juris from this
State practice. The North Sea Continental Shelf Cases confirmed that both State practice (the objective element)
and opinio juris (the subjective element) are essential pre-requisites for the formation of a customary law
rule. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the concept of opinio
juris and the difference between customs (i.e. habits) and customary law:
“Not only must the acts concerned amount to a settled practice, but they must also be such, or be
carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e,
the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.” (Para 77).
The Court concluded that the equidistance principle was not binding on Germany by way of treaty or
customary international law. In the case of the latter, the principle had not attained a customary international law
status at the time of the entry into force of the Geneva Convention or thereafter. As such, the Court held that
the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present
proceedings.