Kuroda v Jalandoni

GR No. L-2662 ; Mar 26, 1949


Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines during the Japanese Occupation, was charged before the Military Commission due to the cruelty that was done against non combatant civilians and prisoners. His trial was in pursuant to EO No. 68 which established the National War Crimes Office and prescribed rules and regulations governing the trial of accused war criminals. Kuroda seeks to establish the illegality of this Order on the ground that it violates not only the provisions of constitutional law but also local laws, to say nothing of the fact that the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore, heis charged of 'crimes' not based on law, national and international. Thus, the Commission is without jurisdiction to try his case.


1. Is EO No. 68 unconstitutional?

2. Does the Military Commission have jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention despite not being a signatory to the first


1. NO. Article 2 of our Constitution provides in its section 3, that the Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation. In accordance with the generally accepted principles of international law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor. Consequently, in the promulgation and enforcement of EO No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution. The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces. Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war, namely, the trial and punishment of war criminals, through the issuance and enforcement of EO No. 68.

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

Co Kim Chan v Valdez Tan Keh

G.R. No. L-5 ; Sept 17, 1945


On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila. The Commander in chief proclaimed military administration and that in so far as the military administration permits, all laws now in force in the commonwealth shall continue to be effective. Order No. 1 organized Philippine Executive Commission which was instructed to proceed to the immediate coordination of the existing central administrative organs and of judicial courts, with the approval of the said commander in chief. Executive Orders Nos. 1 and 4 proclaimed that SC, CA, CFI, and judges and justices under the commonwealth were continued with the same jurisdiction, in conformity with the instructions.

The Philippines was liberated by General Douglas MacArthur in 1944. A petition for mandamus was filed by Co  Kim Chan praying to compel respondent judge of the lower court to continue the proceedings in Civil Case No. 3012 which were initiated under the regime of the so-called Republic of the Philippines established under Japanese occupation of the Philippines.

Respondent judge refused to do so on the ground that under the proclamation of Douglas MacArthur on October 23, 1944 announcing that all laws, regulations, and processes of any other government in the Philippines than that of said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control, effectively invalidated judicial acts and proceedings of the courts under the Japanese military regime. Moreover, respondent judge argues that the governments established during the Japanese occupation were not de facto governments.


1. Do the principles of International Law apply in this case?

2. Whether the proclamation of General Douglas MacArthur during the liberation of the Philippines invalidated all judgements and acts and proceedings of the said Courts.

3. Whether the same Courts may continue those proceedings pending in the said Courts,


1. YES. The Court in deciding the case applied the principles of International Law, in connection with the municipal law in force in this country, before and during Japanese occupation. Questions of International Law must be decided as matters of general law and International Law is no alien in this Tribunal, as, under the Constitution of the commonwealth of the Philippines, it is a part of the fundamental law of the land. As International Law is an integral part of our laws, it must be ascertained and administered by this Court, whenever questions of right depending upon it are presented for our determination, sitting as an international as well as a domestic Tribunal.

Since International Law is a body of rules actually accepted by nations as regulating their mutual relations, the proof of the existence of a given rule is to be found in the consent of nations to abide by that rule; and this consent is evidenced chiefly by the usages and customs of nations, and to ascertain what these usages and customs are, the universal practice is to turn to the writings of publicists and to the decisions of the highest courts of the land. By virtue of the Doctrine of Incorporation, our Courts have applied the rules of international law. In a number of cases even if such rules had not previously been subject of statutory enactments, because these generally accepted principles of international law are automatically part of our own laws.

2. NO. The government established during  the Japanese occupation was a de facto government. It is a legal truism, in political and international law, that all acts and proceedings of the legislative, executive, and judicial department of a de facto government are good and valid. The proclamation of MacArthur did not invalidate the judicial processes during the Japanese occupation. In interpreting the phrase “processes of any other government”, one must take into consideration the well-known principles of international law that all judgments and judicial proceedings, which are not of political complexion, were good and valid before and remained so after the occupied territory had come again into the power of the titular sovereign. Thus, it should be presumed that MacArthur did not intend to violate said principles of international law. A statute ought never to be construed to violate the law of nations if any other possible construction remains. A contrary construction would create great inconvenience and public hardship. To declare them null and void would be tantamount to suspending in said courts the rights and action of the nationals of the territory during the military occupation thereof by the enemy. A law that enjoins a person to do something will not at the same time empower another to undo the same. Thus, the proclamation of MacArthur did not invalidate the judicial acts and proceedings which are not of political complexion.

3. YES. The same courts may continue the proceedings pending in said courts. From a theoretical point of view, administration of justice is suspended as a matter of courts as soon as military occupation takes  place. In practice, however, the invader does not usually take the administration of justice into his own  hands, but continues the ordinary courts or tribunal to administer the laws of the country if not absolutely prevented. Furthermore, it is a legal maxim, that excepting that of a political nature, “law once established continues until changed by some compete nt legislative power. It is not changed merely by change of sovereignty. Courts, being creatures of statutes, and their existence depends upon the laws which create and confer upon them their jurisdiction, the same continues absent any legislative acts repealing such law. Thus, enabling laws or acts providing that proceedings pending in one court be continued are not required by mere change of government or sovereignty. They are necessary only in case the former courts are abolished or their jurisdiction so changed that they can no longer continue taking cognizance of the cases and proceedings commenced therein.


Ichong v Hernandez

GR No  L-7995; May 31, 1957 


Petitioner filed a suit to invalidate the Retail Trade Nationalization Law, on the premise that it violated several treaties which under the rule of pacta sunt servanda, a generally accepted principle of international law, should be observed by the Court in good faith. Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engage therein, unless their licenses are forfeited in accordance with the law, until their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization, economic control weights and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to present for  registration with the proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and their offices and principal offices of juridical entities (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six months for purposes of liquidation. 

ISSUE: Is the Retail Trade Nationalization Law unconstitutional?

RULING: NO. The United Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 2932), and the Declaration of Human Rights contains nothing more than a mere recommendation, or a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred from the fact that members of the United Nations Organization, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are adopted. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of China are not discriminated against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict thePublic International Law Module 1 6 scope of the police power of the State (Palston vs. Pennsylvania, 58 L. ed. 539.)

Here, The Supreme Court said it saw no conflict. The reason given by the Court was that the Retail Trade National Law was passed in the exercise of the police power which cannot be bargained away through the medium of a treaty or a contract. The law in question was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens and country from such dominance and control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future. Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens and country from such dominance and control; that the enactment clearly falls within the scope of the police power of the state, through which and by which it protects its own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise of occupation regulated, nor the due process of the law clause; because the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to be plainly evident - as a matter of fact it seems not only appropriate but actually necessary - and that in any case such matter falls within the prerogative of the legislature, with whose power and discretion the judicial department of the Government may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislature of the segment of the population affected; and that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on the subject and the police power may not be curtailed or surrendered by any treaty or any other conventional agreement. 

Gonzalez v Hechanova

GR No. L-21897; Oct 22, 1963


Respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other respondents herein for the implementation of said proposed importation. Petitioner, Ramon A. Gonzales, a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are, likewise, engaged in the production of rice and corn filed a petition, asserting that in making or attempting to make said importation of foreign rice, the respondents are acting without jurisdiction or in excess of jurisdiction, because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 explicitly prohibits the importation of rice and corn by the Rice and Corn Administration or any other government agency" It was averred by the respondents that the Government of the Philippines has already entered into two contracts for the Purchase of rice, one with Vietnam, and another with Burma; that these contracts constitute valid executive agreements under international law; and that in case of conflict between Republic Acts Nos. 2207 and 3452, and aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved — under the American jurisprudence — in favor of the one which is latest in point of time; that petitioner assails the validity of acts of the Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have already been consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell of the said commodity.


1. Do the contracts entered into constitute valid executive agreements under international law?

2. Is the American theory to the effect that, in the event of conflict between a treaty and a statute, the one which is latest in point of time shall prevail, applicable?

3. May an international agreement be invalidated by our courts?


1. NO. The parties to said contracts do not appear to have regarded the same as executive agreements. Even assuming that said contracts may properly be considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. The President may, under the American constitutional system enter into executive agreements without previous legislative authority, however, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws.

2. NO. Said theory may be justified upon the ground that treaties to which the United States is signatory require the advice and consent of its Senate, and, hence, of a branch of the legislative department. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our constitutional set up and that of the United States

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

Mejoff v Director of Prisons

G.R. No. L-4254; Sept 26, 1951


Petitioner Boris Mejoff is 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 the Philippines. Upon liberation, he was arrested as a Japanese spy by the US Army Counter Intelligence Corps. The People’s Court ordered his release but the Deportation Board taking his case found that having no travel documents, Mejoff was an illegal alien in this country and must referred the matter to the immigration authorities. After corresponding investigation, the Immigration Board of Commissioners declared that Mejoff entered the Philippine illegally and therefore must be deported on the first available transportation to Russia. The petitioner was then under custody. After repeated failures to ship this deportee abroad, the authorities moved him to Bilibid Prison at Muntinlupa where he has been confined up to the present time. Two years had elapsed but the Government has not found ways and means of removing the petitioner out of the country although it should be said in fairness to the deportation authorities that it was through no fault of theirs that no ship or country would take the petitioner.

ISSUE: Should Mejoff be released from prison pending his deportation?

RULING: The Philippines adopts the Universal Declaration of Human Rights since it is a generally accepted principle of international law. It should be applied also to illegal aliens like Mejoff so that it would be a violation of the said international law to detain him for an unreasonable length of time since no vessel from his country is willing to take him. Considering that the 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 the presumption, assurances were made during the oral argument that the Government is really trying to expedite the expulsion of Mejoff. The petitioner can be released if there is a record shown that the deportee is being imprisoned under the pretense of awaiting a chance for deportation or unless the Government admit that it can not deport him or he is being held for too long a period our courts will not interfere. Article 2 of the Philippine Constitution states that, “The Philippines renounces war as 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. The protection against deprivation of liberty without due process of law, and except for crimes committed against the laws of the land, is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality.

Paquete v Habana

175 US 677; 1900


During the early days of the war between the United States and Spain,two fishing smacks, The Paquete Habana and The Lola, were regularly engaged in fishing on the coast of Cuba, sailing under the Spanish flag, and each owned by a Spanish subject, residing in Havana; her crew, who also resided there. Each vessel left Havana on a coast fishing voyage, and sailed along the coast of Cuba about two hundred miles to the west end of the island; the sloop there fished for twenty-five days in the territorial waters of Spain, and the schooner extended her fishing trip a hundred miles farther across the Yucatan Channel, and fished for eight days on the coast of Yucatan.

On her return, with her cargo of live fish, along the coast of Cuba, and when near Havana, each was captured by one of the United States blockading squadron. Neither fishing vessel had any arms or ammunition on board, had any knowledge of the blockade, or even of the war, until she was stopped by a blockading vessel, made any attempt to run the blockade, or any resistance at the time of her capture, nor was there any evidence that she, or her crew, was likely to aid the enemy.

Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of each vessel and her cargo as prize of war was there filed on April 27, 1898; a claim was interposed by her master on behalf of himself and the other members of the crew, and of her owner

Each vessel was thereupon sold by auction; the Paquete Habana for the sum of $490 and the Lola for the sum of $800. There was no other evidence in the record of the value of either vessel or of her cargo.

When the owners appealed, they argued that both customary international law and writings of leading international scholars recognized an exemption from seizure at wartime of coastal fishing vessels 

ISSUE: Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?

RULING: Yes. The vessels of fishermen have been generally declared exempt from confiscation because of the eminently peaceful object of their humble industry and of the principles of equity and humanity. The exemption includes the vessel, the implements of fishing, and the cargo resulting from the fishery. This usage, eminently humane, goes back to very ancient times, and although the immunity of the fishery along the coasts may not have been sanctioned by treaties, yet it is considered today as so definitely established that the inviolability of vessels devoted to that fishery is proclaimed by the publicists as a positive rule of international law, and is generally respected by the nations.

At the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in such a way as to give aid or information to the enemy, nor when military or naval operations create a necessity to which all private interests must give way. Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce. This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice

In case at bar, each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in number, had no interest in the vessel, and received, in return for their toil and enterprise, two-thirds of her catch, the other third going to her owner by way of compensation for her use. Each vessel went out from Havana to her fishing ground and was captured when returning along the coast of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the sea and kept alive on board. Although one of the vessels extended her fishing trip across the Yucatan channel and fished on the coast of Yucatan, we cannot doubt that each was engaged in the coast fishery, and not in a commercial adventure, within the rule of international law.

Mijares v Ranada

GR No: 139325; Apr 12, 2005


Petitioners were victims of human rights violations during the Marcos era. A final judgement was held in their favor abasing the estate of the late President Ferdinand Marcos. The US court awarded $1.9 billion as compensation for the torte it had during the said era. The said judgement was affirmed by the US Court of Appeals. For the enforcement, petitioners filed a complaint in RTC Makati and paid filing fees of Php 410 since the value of the subject matter is incapable of pecuniary estimation. The heirs of Marcos filed a motion to dismiss because of the said filing fees paid by the petitioners. The Makati RTC dismissed the case because the subject matter was capable of pecuniary estimation since it involved a judgement from a foreign court. Thus, it can be ascertained because it is a payment of definite sum even if it is in a foreign currency. The proper filing fee should be Php 472 Million to enforce a judgement awarded to them by the foreign court.

ISSUE: Can a foreign judgement be recognized in the Philippines?

RULING: YES. There is no obligatory rule  regarding treaties entered into by the Philippines to recognize foreign judgements or enforcement thereof. Exception to the rule is when it is a generally accepted principle of international law, where the Philippines adhere through the incorporation clause provided in the constitution even if there are no treaty obligations. A generally accepted principle of international law must comply with the following requisites: established, widespread and consistent practice on part of the states and a psychological element known as opinio juris side necessitates or belief that the practice is considered obligatory by the existence of a rule of law. 

Pharmaceutical & Healthcare Assoc. v. Duque

G.R. No. 173034, Oct. 9, 2007


President Corazon Aquino issued E. O. No. 51 (Milk Code) on October 28, 1986 which states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA), to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. 

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, especially parents and children, are informed of the advantages of breastfeeding. 

On May 15, 2006, the DOH issued herein assailed Admin. Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The “Milk Code,” Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). 

Petitioner, representing its members that are manufacturers of breastmilk substitutes posits that the RIRR is not valid and unconstitutional. 

Hence, it filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.


Is the RIRR unconstitutional? 

Is the RIRR in accord with TMC? 

Are the pertinent international agreements entered into by the Philippines part of the law of the land and may thus be implemented through an RIRR? if so, is the RIRR in accord with such international agreements? 


NO. However what may be implemented is the RIRR based on the Milk Code which in turn is based on the ICMBS as this is deemed part of the law of the land. The other WHA Resolutions however cannot be imposed as they are not deemed part of the law of the land. 


1. Are the international instruments referred to by the respondents part of the law of the land? 

- The various international instruments invoked by respondents are: 

(1) The UN Conventions on the Rights of the Child 

(2) The International Convenant on Economic, Social, and Cultural Rights 

(3) Convention on the Elimination of All Forms of Discrimination Against Women 

- These instruments only provide general terms of the steps that States must take to prevent child mortality. Hence, they do not have anything about the use and marketing of breastmilk substitutes

- The ICMBS and other WHA Resolutions however, are the international instruments which have specific provisions on breastmilk substitutes 

- Under the 1987 Constitution, international law can become part of domestic law in 2 ways: 

(1) Transformation – an international law is transformed into a domestic law through a constitutional mechanism such as local legislation  

Treaties become part of law of the land through this method, pursuant to Art 7, Sec 21 – wherein “no treaty or international agreement shall be valid.. unless concurred by at least 2/3 of Senate”  

The ICMBS and WHA Resolutions are NOT treaties as they haven’t been concurred in by the required 2/3 vote.  

HOWEVER, the ICMBS has been transformed into domestic law through local legislation that is TMC.  

Therefore, it is not the ICMBS per se that has the force of law but it’s TMC. 

While TMC is almost a verbatim reproduction of the ICMBS, it did not adopt the latter’s provision on the absolute prohibition on advertising of products within the scope of the ICMBS. Instead the MC provides that advertising promotion or other marketing materials may be allowed if such materials are approved by a committee. 

(2)Incorporation – by mere constitutional declaration, international law is deemed to have the force of domestic law  

This is found under Art 2, Sec 2 – The Philippines… adopts generally accepted principles of international law as part of the law of the land  

In Mihares v. Ranada: International law becomes customary rules accepted as binding as a result of two elements: 

1.) Established, widespread, and consistent practice on part of the state 

2.) Opinion juris sive necessitates (opinion as to law or necessity.  

Generally accepted principles of international law refer to norms of general or customary international law which are binding on all states, valid through all kinds of human societies, and basic to legal systems generally  

Fr. Bernas has a definition similar to the one above. Customary international law has two factors: 

1.) Material factor – how states behave  

The consistency and the generality of the practice 

2.) Psychological or subjective factor – why they behave the way they do 

Once state practice has been established, now determine why they behave they do. Is it out of courtesy or opinio juris (the belief that a certain type of behavior is obligatory 

When a law satisfies the two factors it becomes part of customary international law which is then incorporated into our domestic system

Colombia v Peru

ICJ Rep 266; Nov 20, 1950


Haya de la Torre a Peru national was charged with instigation and rebellion, this was connected with the military rebellion which broke out in Peru. Because of these charges, after a few months after the rebellion started, Haya fled to the Colombian Embassy in Lima, Peru.

Being charged with crimes, he was sought out by the Peruvian authorities but they were not able to get custody of him because he has been granted asylum as a refugee in Colombia. The Colombian Ambassador requested a safe-conduct agreement in order for Haya to leave the country. This was granted in accordance to the Havana Convention.

The government of Peru refused to accept the qualification of Haya de la Torre as a refugee and refused to grant him safe passage, claiming that since Haya de la Torre committed common crimes he cannot be entitled to enjoy the benefits of asylum as provided by Articles 1 and 2 of the Havana Convention. A diplomatic correspondence ensued which terminated in signature and the case at bar was submitted to the International Court of Justice.

ISSUE: Did Colombia’s act of granting asylum to Haya de la Torre violate the Havana Convention?

RULING: YES. Article 1 of the Havana Convention prohibits States to grant asylum to persons accused or condemned of common crimes as stated those who committed such common crimes and seek asylum should be “surrendered upon request of the local government”. Torre’s accusation related to a military rebellion, which the court concluded was not a common crime and as such the granting of the asylum complied with Article 1 of the Convention.

Although Article 1 of the Havana Convention it is not in conformity with Article 2(2) which stated that “Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions: First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety”. In the case at bar Torres was accused of a crime but he could not be tried in a court because Columbia granted him asylum. The court held that “protection from the operation of regular legal proceedings” was not included in Article 2(2) of the Havana Convention.

Reagan v CIR

GR No. L-26379; Dec 27, 1969


Petitioner Reagan, a civilian employee of an American corporation providing technical assistance to the US Air Force in the Philippines, questioned the payment of the income tax assessed on him by respondent CIR on an amount realized by him on a sale of his automobile to a member of the US Marine Corps, the transaction having taken place at the Clark Field Air Base at Pampanga. It is his contention, that in legal contemplation the sale was made outside Philippine territory and therefore beyond our jurisdictional power to tax. He seeks that an amount of P2,979.00 as the income tax paid by him be refunded.

ISSUE: Is the Clark Field Air Base a foreign property therefore excluded from the power of Philippine taxation?

RULING: NO. it was not excluded since the said foreign military bases is not a foreign soil or territory. Under the [Military Bases] Agreement, it should be noted that the Philippine Government merely consents that the United States exercise jurisdiction in certain cases. The consent was given purely as a matter of comity, courtesy, or expediency over the bases as part of the Philippine territory or divested itself completely of jurisdiction over offenses committed therein. This provision is not and can not on principle or authority be construed as a limitation upon the rights of the Philippine Government.

The State is not precluded from allowing another power to participate in the exercise of jurisdictional right over certain portions of its territory. If it does so, it by no means follows that such areas become impressed with an alien character. They retain their status as native soil. They are still subject to its authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease to the American Armed Forces by virtue of the Military Bases Agreement of 1947. They are not and cannot be foreign territory.

Agustin v Edu

GR No L-49112 ; Feb 2, 1979


Letter of Instruction No. 229 was enacted for the putting of early warning devices which shall be placed by users of motor vehicles. Agustin states that the enactment of such a letter of instruction violates the constitutional guarantee of due process among others.

Said instruction was signed into law by then President Marcos in order to prevent accidents on streets and highways which includes expressways or limited access roads which is caused by the presence of disabled, stalled or parked motor vehicles which do not have early warning devices. It should be noted that the Philippines is a signatory of the 1968 Vienna Convention on Road Signs and SIgnals and the United Nations Organizations. The Vienna convention was ratified by the Philippine government under PD 207

ISSUE: Does LOI 229 violate the constitutional guarantees of due process?

RULING: NO. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by petitioner and is the main reliance of respondents. It is the submission of the former, however, that while embraced in such a category, it has offended against the due process and equal protection safeguards of the Constitution, although the latter point was mentioned only in passing. The broad and expansive scope of the police power, which was originally identified by Chief Justice Taney of the American Supreme Court in an 1847 decision, as "nothing more or less than the powers of government inherent in every sovereignty" was stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into force, Calalang v. Williams, identified police power with state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. 

The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention, which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; * * *." It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally accepted principles of international law as part of the law of the land, * * *." The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality 

Republic v Sandiganbayan

G.R. No. 104768; July 21, 2003


Based on the mandate of President Corazon Aquino’s E.O. No. 1 creating the Presidential Commission on Good Government which was tasked to recover all ill-gotten wealth of former President Marcos, the AFP Anti-Graft Board investigated various reports of alleged unexplained wealth of respondent Major General Josephus Q. Ramas. The AFP Board issued a Resolution on its findings and recommendation on the reported unexplained wealth of Ramas, finding ill-gotten and unexplained wealth in the amount of ₱2,974,134.00 and $50,000 US Dollars. 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.

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: Did the protection accorded to individuals under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights remain in effect during the interregnum?

RULING: NO. However, the Court ruled that the protection accorded to individuals under the Covenant and the Declaration remained in effect during the interregnum. 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.

Tanada v Angara

GR No 118295; May 2, 1997


Respondent Rizalino Navarro, then Secretary of Trade and Industry, signed the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations on behalf of the Government of the Republic of the Philippines. By signing the Final Act, the Republic of the Philippines agrees to the following: (a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities, with a view to seek approval of the Agreement in accordance with their procedures; and (b) to adopt the Ministerial Declarations and Decisions. Afterwards, the Philippine Senate adopted Resolution 97 which concurs with the ratification of the President of the Philippines of the Agreement establishing the WTO. The WTO Agreement provides that "each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements." 

ISSUE: does the WTO Agreement unduly limit, restrict, and impair Philippine sovereignty?

RULING: No. 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 . . . 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."

Bayan Muna v Romulo

GR No 159618 ; Feb 1, 2011


The Rome Statute established the International Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions.” The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression. The RP signed the Rome Statue which, by its terms is subject to ratification, acceptance or approval” by signatory states. As of the filing of the instant petition, the PH has not yet completed the ratification, approval, and concurrence process. Then Ambassador Ricciardone sent a US Embassy Note to the DFA proposing the terms of the non-surrender agreement (Agreement, hereinafter) between the USA and the RP. The RP agreed and accepted the US proposals, which put it into effect. In esse, the Agreement aims to protect what it defines as “persons of the RP and US from frivolous and harrassment suits that might be brought against them in international tribunals. In response to a query of SolGen Benipayo as to the status of the non-surrender agreement. Ambassador Ricciardone replied that the exchange of diplomatic not constituted a legally binding agreement under international law, and that under US law, the said agreement did not require the advice and consent o the US Senate. 

ISSUE: Does RP-US Non-Surrender Agreement contravene the Rome Statute?

RULING: NO. Under international law, there is a considerable difference between a State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and purpose of a treaty, whereas a State-Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith. In this case, RP is only a signatory to the Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of the Rome Statute. Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not a party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court. x x x" In applying the provision, certain undisputed facts should be pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an international agreement between the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of international agreements entered into between States, even when one of the States is not a State-Party to the Rome Statute.

Vinuya v Romulo

GR No 162230 ; Apr 28, 2010


Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the Securities and Exchange Commission, established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the second world war. Petitioners narrate that during the second world war, the Japanese army attacked villages and systematically raped the women as part of the destruction of the village. Their communities were bombed, houses were looted and burned, and civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held them in houses or cells, where they were repeatedly raped, beaten and abused by Japanese soldiers. As a result of the actions of their tormentors, the petitioners have spent their lives in misery, having endured physical injuries, pain and disability, and mental and emotional suffering. Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the “comfort women” stations in the Philippines. However, officials of the Executive Department declined to assist the petitioners and took the position that the individual claims of the comfort women for compensation had already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan.

ISSUE: Did the Executive Department commit grave abuse of discretion in not espousing petitioners’ claim for official apology and other forms of repatriation against Japan?

RULING: NO. This is a political question. In Tañada v Cuenco, the Court held that political questions refer “to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom not legality of a particular measure.” 

It is well-established that “the conduct of the foregin relations of our government is committed by the Constitution to the executive and legislative - the political - departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” To be sure, not all cases implicating foregin relations present political questions, and courts certainly possess the authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. 

In the present case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for repatriation against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Neither could petitioners herein assail the said determination by the Executive Department via the instant petition for certiorari. The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. 

From a municipal law perspective, that certiorari will not lie. As a general principle - and particularly here, where such an extraordinary length of time has lapsed between the treaty’s conclusion and our consideration - the Executive must be given ample discretion to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or necessary. In the international sphere, traditionally, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individual’s behalf. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. Furthermore, it has been argued that, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her behalf when rights are injured. However, at present, there is no sufficient evidence to establish a general international obligation for States to exercise diplomatic protection of their own nationals abroad. Though, perhaps desirable, neither state practice nor opinion juris has evolved in such a discretion. If it is a duty internationally, it is only a moral and not a legal duty, and there is no means of enforcing its fulfillment. 

Thus, for us to overturn the Executive Department’s determination would mean an assessment of the foreign policy judgments by a coordinated political branch to which authority to make that judgment has been constitutionally committed. Hence, it is not within the power of this Court to order the Executive Department to take up the petitioners’ cause. The Court only has the power to urge and exhort the Executive Department to take up petitioners’ cause. 

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