An "exchange of notes" is a record of a routine agreement, that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.²⁸

In another perspective, the terms "exchange of notes" and "executive agreements" have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action.²⁹ On the other hand, executive agreements concluded by the President "sometimes take the form of exchange of notes and at other times that of more formal documents denominated ‘agreements’ or ‘protocols.’"³⁰ As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

x x x 

 

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."³² International agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.³³

Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned,³⁴ as long as the negotiating functionaries have remained within their powers.³⁵ Neither, on the domestic sphere, can one be held valid if it violates the Constitution.³⁶ Authorities are, however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect.³⁷ As has been observed by US constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people;³⁸ a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment.³⁹

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following observations made by US legal scholars: "[I]nternational agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature take the form of executive agreements." ⁴⁰

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,⁴¹ holding that an executive agreement through an exchange of notes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties’ intent and desire to craft an international agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda⁴² principle.

G.R. No. 159618               February 1, 2011
BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, Petitioner,
vs. ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, Respondents.

In Mijares v. Ranada,¹⁵ the Court held thus:

[G]enerally 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. The classical formulation in international law sees those customary rules accepted as binding 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 opinion juris 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.¹⁶ (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all states,¹⁷ i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity,¹⁸ a person's right to life, liberty and due process,¹⁹ and pacta sunt servanda,²⁰ among others. The concept of "generally accepted principles of law" has also been depicted in this wise:

Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they have the "character of jus rationale" and are "valid through all kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law because they are "basic to legal systems generally" and hence part of the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. x x x ²¹ (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris]." (Restatement) This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological or subjective factor, that is, why they behave the way they do.

x x x x

The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

x x x x

Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x

x x x x

Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.²² (Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic system.²³

G.R. No. 173034             October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,
vs. HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.

 

THE RIGHT OF ANGARY

Angary (Lat. jus angariae; Fr. droit d'angarie; Ger. Angarie; from the Gr. ἀγγαρεία, (angaria), the office of an ἄγγαρος, courier or messenger), is the name given to the right of a belligerent (most commonly, a government or other party in conflict) to seize and apply for the purposes of war (or to prevent the enemy from doing so) any kind of property on belligerent territory, including that which may belong to subjects or citizens of a neutral state.

Article 53 of the Regulations respecting the Laws and Customs of War on Land, annexed to the Hague Convention of 1899 on the same subject, provides that railway plant, land telegraphs, telephones, steamers and other ships (other than such as are governed by maritime law), though belonging to companies or private persons, may be used for military operations, but "must be restored at the conclusion of peace and indemnities paid for them." Article 54 adds that "the plant of railways coming from neutral states, whether the property of those states or of companies or private persons, shall be sent back to them as soon as possible."

These articles seem to sanction the right of angary against neutral property, while limiting it as against both belligerent and neutral property. It may be considered, however, that the right to use implies as wide a range of contingencies as the "necessity of war" can be made to cover.

Kidnapped and put on trial

At the age of 26, Eichmann joined the Nazi party and became a full member of the Schutzstaffel or SS, the Nazi elite military organization which, under Heinrich Himmler, was responsible for establishing and running the concentration/extermination camps in which millions of inmates died of malnutrition, shooting, systematic mass gassing, or brutal medical experiments. Eichmann became chief of the Gestapo’s Office for Jewish Emigration, and was ultimately responsible for the transport of Jews from all over Nazi-occupied Europe into the concentration camps, where an estimated six million Jews died as part of the Nazis’ ‘Final Solution of the Jewish Question’.³ His principal concern was to maintain the killing capacity of the camps by providing a steady flow of victims. The chain of command in his office was Hitler, Himmler, Heydrich, Müller (Head of the Gestapo), Eichmann.

Kidnapped and put on trial

His principal concern was to maintain the killing capacity of the concentration camps by providing a steady flow of victims.

After WW2, Eichmann fled to Argentina, where he lived in Buenos Aeries as Ricardo Klement until May 1960. He was then kidnapped by Israeli Mossad [secret service] agents, who smuggled him back to Jerusalem on an El Al plane for trial as a war criminal. The Israeli court decided that the legality of Eichmann’s trial was not compromised by the illegality of his capture, as the latter was a political matter. He was indicted on 15 criminal charges, including crimes against humanity and crimes against the Jewish people,⁴ under Israel’s Nazis and Nazi Collaborators (Punishment) Law 5710 of 1950.
A series of trials of the other major Nazi War criminals had taken place in the German city of Nuremberg from 1945 to 1949. These centred on war crimes and crimes against humanity and were conducted by the victorious Allies. However, ‘the trial of Adolf Eichmann was initiated and conducted by the Israeli nation and was a Jewish affair. It was the intention of Israeli Prime Minister David Ben-Gurion to make Eichmann’s trial a general indictment, not only of Nazi actions, but of anti-Semitism in general.’⁵ ‘Until the Eichmann trial, no other occasion [after Nuremberg] presented itself to communicate on a worldwide scale what the Nazis had done. … Thus the trial provided a unique opportunity to re-educate an older generation and to educate a newer one’, i.e. ‘those who were at the time too young to have been informed by these earlier events’.⁶

Defence arguments rejected

the dispatch of each train by the Accused to Auschwitz or to any other extermination site, carrying one thousand human beings, meant that the Accused was a direct accomplice in a thousand premeditated acts of murder

The contention by the defence that Eichmann could not get a fair trial in Israel was rejected because the case would be tried on the basis of the evidence brought before the court. According to the court, ‘Those who sit in judgment are professional judges, accustomed to weighing evidence; they are carrying out their task in full view of the public.’⁷
The objection that the legislation was retroactive was rejected on the basis that ‘the four major Allies, including America, had sat in judgment at Nuremberg and elsewhere under precisely such retroactive statutes’ and ‘there was no other way to put the culprits on trial’.⁸ The further contention that the acts were done before the creation of the State of Israel, outside its borders, and to people who were not citizens of Israel was rejected on the basis of the universal nature of the crime of genocide, the principle of universal jurisdiction, and the fact that there was no international tribunal with competent jurisdiction, as the Nuremberg and Tokyo tribunals had long ceased to exist. And ‘At the time of the trial there was no other country that claimed the right or assumed the duty to try Adolf Eichmann.’⁹

Image Wikipedia

Adolf Hitler believed he was promoting evolutionary progress by killing 6 million Jews.

At the trial, Eichmann’s main personal defence was that he was a subordinate lieutenant-colonel (Obersturmbannführer) and as such was only a ‘cog’ obeying ‘superior orders’, albeit zealously, because it was the will of Hitler. Hitler’s orders had possessed the force of law in the Third Reich, and so what had been done was an Act of State. (If the Germans had won he would have been decorated, not hanged.)
This prompted the presiding judge to state: ‘The objective of the crimes … was to obliterate an entire people from the face of the earth.’ … ‘the dispatch of each train by the Accused to Auschwitz or to any other extermination site, carrying one thousand human beings, meant that the Accused was a direct accomplice in a thousand premeditated acts of murder ’ … ‘the Accused acted out of an inner identification with the orders that he was given and out of a fierce will to achieve the criminal objective, and in our opinion it is irrelevant … how this identification and this will came about, and whether they were the outcome of the training which the Accused received under the regime which raised him, as his Counsel argues.’¹⁰
After 14 weeks of testimony, involving 1,543 documents and 100 prosecution witnesses (90 of whom were Nazi concentration camp survivors), Eichmann was found guilty on all charges by the three-judge panel, and sentenced to death by hanging. This was carried out shortly after midnight on May 31/June 1, 1962. His ashes were then speedily scattered over international waters of the Mediterranean Sea to ensure that he would have no final resting place that might serve as a future memorial.

BAD CAPTURE BUT VALID TRIAL

After Germany's defeat in 1945, Eichmann fled to Austria. He lived there until 1950, when he moved to Argentina using false papers. Information collected by the Mossad, Israel's intelligence agency, confirmed Eichmann's location in 1960. A team of Mossad and Shin Bet agents captured Eichmann and brought him to Israel to stand trial on 15 criminal charges, including war crimes, crimes against humanity, and crimes against the Jewish people. Found guilty on many of these charges, he was sentenced to death by hanging and executed on 31 May 1962. The trial was widely followed in the media and was later the subject of several books, including Hannah Arendt's work, Eichmann in Jerusalem. Arendt calls him the embodiment of the "banality of evil", asserting that he appeared to be ordinary and sane, yet displayed neither guilt nor hatred. Nazi hunter Simon Wiesenthal said: "The world now understands the concept of 'desk murderer'. We know that one doesn't need to be fanatical, sadistic, or mentally ill to murder millions; that it is enough to be a loyal follower eager to do one's duty."^[1]

Erga omnes

Erga omnes (in relation to everyone) is frequently used in legal terminology describing obligations or rights toward all. For instance a property right is an erga omnes right, and therefore enforceable against anybody infringing that right. An erga omnes right (a statutory right) can here be distinguished from a right based on contract, which is only enforceable against the contracting party.

In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slavery, and racial discrimination. The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33]:

"… an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. [at 34] Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character."

Preliminary examination in PUBLIC INTERNATIONAL LAW 2009

Preliminary examination in PUBLIC INTERNATIONAL LAW 2009

1. In the case of THE HOLY SEE vs. ERIBERTO U. ROSARIO, JR., ET AL. (G.R. No. 101949 December 1, 1994) the procedure is outlined pursuant to public international law in pleading sovereign or diplomatic immunity in a foreign court.

            l. State the procedure.

            2. In the United States the procedure followed is the process of “suggestion”. EXPLAIN THE  “process of suggestion”.

2. STATE THE  (4) EFFECTS OF RECOGNITION OF BELLIGERENCY.

3. FACTS: The private respondents are suing several officers of the U.S. Air Force stationed in Clark Air Base in connection with the bidding conducted by them for contracts for barber services in the said base.

On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area Exchange, U.S. Air Force, solicited bids for such contracts through its contracting officer, James F. Shaw. Among those who submitted their bids were private respondents Roberto T. Valencia, Emerenciana C. Tanglao, and Pablo C. del Pilar. Valencia had been a concessionaire inside Clark for 34 years; del Pilar for 12 years; and Tanglao for 50 years.

Ramon Dizon, won the bidding over the objection of the private respondents, who claimed that he had made a bid for four facilities, including the Civil Engineering Area, which was not included in the invitation to bid.

The private respondents complained to the Philippine Area Exchange (PHAX). The latter, through its representatives, petitioners Yvonne Reeves and Frederic M. Smouse explained that the Civil Engineering concession had not been awarded to Dizon as a result of the February 24, 1986 solicitation. Dizon was already operating this concession, then known as the NCO club concession, and the expiration of the contract had been extended from June 30, 1986 to August 31, 1986. They further explained that the solicitation of the CE barbershop would be available only by the end of June and the private respondents would be notified.

On June 30, 1986, the private respondents filed a complaint in the court below to compel PHAX and the individual petitioners to cancel the award to defendant Dizon, to conduct a rebidding for the barbershop concessions and to allow the private respondents by a writ of preliminary injunction to continue operating the concessions pending litigation.

Upon the filing of the complaint, the respondent court issued an ex parte order directing the individual petitioners to maintain the status quo.

On July 22, 1986, the petitioners filed a motion to dismiss and opposition to the petition for preliminary injunction on the ground that the action was in effect a suit against the United States of America, which had not waived its non-suability. The individual defendants, as official employees of the U.S. Air Force, were also immune from suit.

Question: AS JUDGE WOULD YOU DISMISS THE CASE? EXPLAIN YOUR ANSWER.

4. . What is the doctrine of sovereign immunity under international law?

6