Bar Q and A #46

YES, a treaty may violate international law if it conflicts with a peremptory norm or jus cogens of international law. Jus cogens norm is defined as a norm of general international law accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Article 53 of the Vienna Convention of the Law of Treaties provides that a treaty is void if at the time of its conclusion, it conflicts with jus cogens norm. Moreover, under Article 54 of this convention, if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

The Supreme Court should dismiss the case. The jurisdiction of the Supreme Court (or of all lower courts) over a treaty is only with respect to questions of its constitutionality or validity (See Art. VIII, sec. 5

(2) (a) of 1987 Constitution). In other words, the question should involve the constitutionality of a treaty or its validity in relation to a statute (Gonzales v. Henchanova, 9 SCRA 230 [1963]). It does not pertain to the termination (or abrogation) of a treaty.

The authority of the Senate over treaties is limited to concurrence (Art. VIII, sec. 21 of 1987 Constitution). There being no express constitutional provision regulating the termination (or abrogation) of treaties, it is presumed that the power of the President over treaty agreements and over foreign relations includes the authority to “abrogate” (or more properly referred as “terminate”) treaties. The termination of the treaty by the President without the concurrence of the Senate is not subject to constitutional attack, there being no Senate authority to that effect.

The Philippines is a party to the Vienna Convention on the Law of Treaties. Hence, the said Convention thus becoming part of Philippine Law governs the act of the President in terminating (or abrogating) the treaty. Article 54 of this Convention provides that a treaty may be terminated “at any time by consent of all the parties.” Apparently, the treaty in question is a bilateral treaty in which the other state is agreeable to its termination. Article 67 of the Convention adds the formal requirement that the termination must be in an instrument communicated to the other party signed by the Head of State or of Government or by the Minister of Foreign Affairs.

a. YES, the contention of the Cambodian Government is correct. Unless it clearly appears that the government has failed to use promptly and with appropriate force its constituted authority it cannot be held responsible for the acts of rebels, for the rebels are not its agents and their acts were done without its volition. In this case, government troopers immediately pursued the rebels and killed several of them.

b. The new government may be held responsible if it succeeds in overthrowing the government. Victorious rebel movements are responsible for the illegal acts of their forces during the course of the rebellion. The acts of the rebels are imputable to them when they assumed as duly constituted authorities of the state.

a. There is no state responsibility on the part of Thailand. The wrongful act in question is an act of private individuals and not of an organ of the government or a state official. Hence, it is not attributable to Thailand as its wrongful act for the purpose of state responsibility.

b. The appropriate remedy available to the family of A is to seek diplomatic protection from Great Britain to press a claim for reparation (Brownlie, Principles of Public of International Law, 7th ed., pp.460 and 477-478). However, in order that the claim will be allowable under customary international law, the family of A must first exhaust the legal remedies available in Thailand (Brownlie, Principles of Public of International Law, 7th ed., p. 492).

The RTC may assert its jurisdiction over the case by invoking the territorial principle, which provides that crimes committed within a state's territorial boundaries and persons within that territory, either permanently or temporarily, are subject to the application of local law. Jurisdiction may also be asserted on the basis of the universality principle, which confers upon all states the right to exercise jurisdiction over delicta juris gentium or international crimes, such as the international traffic narcotics. The possession of 10 kilos of heroin constitutes commercial quantity and therefore qualifies as trafficking of narcotics.

Consequently, the denial of the search warrant should have been anchored on the failure of the court to conduct personal examination of the witnesses to the crime in order to establish probable cause, as required by Sections 3 and 4 of Rule 126.

In any event, there is no showing that the requisite quantum of probable cause was established by mere reference to the affidavits and other documentary evidence presented.

William should not be granted bail as a matter of right. He is subject to Philippine criminal jurisdiction, therefore, his right to bail must be determined on the basis of Section 13, Article III of the Constitution.

The following are the limitations on the jurisdiction of the International Court of Justice under its Statute:

a. Only states may be parties in cases before it. (Article 34)
b. The consent of the parties is needed for the court to acquire jurisdiction over a case. (Article 36)