IS 33 - Philippine Foreign Relations

Introduction to Foreign Relations: General Concepts, Principles and Legal Maxims

Regalian Doctrine or Jure Regalia

  • What is the Regalian Doctrine?

    • All lands of whatever classification and other natural resources not otherwise appearing to be clearly within private ownership belong to the State. The state is the source of any asserted right to ownership of land and charged with the conservation of such patrimony. (Republic v. Raneses, GR No. 189970, June 9, 2014; Sec. of DENR v. Yap, GR No. 167707, October 8, 2008)

  • Where is the Regalian Doctrine embodied in the Philippine Constitution?

    • Article XII, Section 2, 1987 Constitution - All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests, or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated

  • Is there an exception to Regalian Doctrine?

    • When there is an existing native title to land or ownership of land by Filipinos by virtue of possession under a claim of ownership since time immemorial and independent of any grant from the Spanish Crown (Carino v. Insular Government, GR No. 2869, March 25, 1907)

    • Any land that should have been in the possession of an occupant and of his predecessors in interest since time immemorial, for such possession would justify the presumption that the land had never been part of the public domain or that is had been a private property even before the Spanish conquest (Oh Cho v. Director of Lands, GR No. L-48321, August 31, 1946)

  • Constitutionality of RA 8371 “Indigenous Peoples’ Rights Act” (IPRA Law)

    • The regalian doctrine does not negate native title to lands held in private ownership since the time immemorial and independent of any grant from the Spanish Crown. IPRA recognizes the right of ownership of Indigenous Cultural Communities or Indigenous Peoples (ICCs/IPs) to their ancestral domains and ancestral lands on the basis of native title (Cruz v. Sec. of DENR, GR No. 135385, December 6, 2000)

  • Native Title

    • Refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest (Sec. 3 (I), Chapter II, RA 8371)

  • Ancestral Domain

    • All areas generally belonging to ICC/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied and possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present, except when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government projects any other voluntary dealings with government and/or private individuals or corporations (Sec. 3(a), Chapter II, RA 8371)

  • What is Jure Regalia?

    • Private land must be traced to some grant, express or implied, from the Spanish Crown or its successors, the American Colonial government, and thereafter, the Philippine Republic. Title to land must emanate from some source for it cannot be issued forth from nowhere

    • Means that the State is the original proprietor of all lands and, as such, is the general source of all private titles (p.3, Agceoli, Property Registration Decree and Other Related Laws, 2015)

Public Land and Natural Resources

  • Exploration, development and utilization of natural resources

    • Only Filipino citizens and corporations or associations at least sixty percent (60%) of whose capital is owned by Filipino citizens are qualified to take part in exploration, development and utilization of natural resources (1987 Constitution, Art. XII, Sec. 2).

  • How can natural resources (except agricultural land be explored developed or utilized?

    • Since natural resources, except agricultural resources that cannot be alienated, they can be explored, developed, or utilized by:

      • 1. Direct undertaking of activities by the State

      • 2. Co-production, joint venture, or production sharing agreements with the State and all under the full control and supervision of the State (Miners Association v. Factoran, G.R. No. 98332, January 16, 1995).

      • NOTE: However, as to marine wealth, only Filipino citizens are qualified. This is also true of natural resources in rivers, bays, lakes and lagoons, but with allowance for cooperatives (1987 Constitution, Art. XII, Sec. 2, pars. 2 and 3).

  • Imperium vs. Dominium

    • Imperium -The power to govern possessed by the State which is embraced in sovereignty.

    • Dominium - The capacity of the State to own or acquire properties.

  • Classification of Lands of Public Domain

    • 1. Agricultural;

    • 2. Forest or timber;

    • 3. Mineral lands; and

    • 4. National parks (Sec. 3, Art. XII, 1987 Constitution)

  • Conversion of Public Land to Private Land

    • How can a public land be converted into private property?

      • Before any land may be converted to alienable and disposable land, there must be a positive act from the government. Unless and until the land is released in an official proclamation, it may not form part of the disposable agricultural lands of the public domain. (Sunbeam v. CA, GR No. L-50464, January 29, 1990)

        • There must be an express declaration by the State that the public dominion property is no longer intended for public service or the development of the national wealth or that the property has been converted into patrimonial. Without such express declaration, the property, even if classified as alienable or disposable, remains property of the public dominion, pursuant to Article 420(2), and thus incapable of acquisition by prescription. It is only when such alienable and disposable lands are expressly declared by the State to be no longer intended for public service or for the development of the national wealth that the period of acquisitive prescription can begin to run. Such declaration shall be in the form of a law duly enacted by Congress or a Presidential Proclamation in cases where the President is duly authorized by law. (Heirs of Mario Malabanan v. Republic of the Philippines, GR No. 179987, April 29, 2009)

        • Public land is acquired from the government either by purchase or by grant. (Oh Cho v. Director of Lands, supra)

        • Through prescription - Public land held by a possessor, personally or through his predecessors-in-interest, openly, continuously and exclusively for ten (10) or thirty (30) years is converted to private property by the mere lapse of completion of said period, ipso jure. The land ipso jure ceases to be of the public domain and becomes private property. (Director of Lands v. IAC, GR No. 73002, December 29, 1986)

          • Two (2) kinds of prescription by which Patrimonial Property may be acquired

            • 1. Ordinary – possession for at least 10 years, in good faith and with just title

            • 2. Extraordinary – possession for at least 30 years, regardless of good faith or just title

          • Note: There must be an express declaration that the property is no longer intended for public service or development of national wealth. Without such declaration, the property, even if classified as alienable and disposable, remains property of the State, and thus, may not be acquired by prescription. (Malabanan v. Republic, GR No. 179987, April 29, 2009)

Acquisition of Private Lands

  • Disposition of private lands or holding of lands the public domain

    • No private land shall be transferred or conveyed except to individuals, corporations or associations qualified to acquire or hold lands of the public domain. (Sec. 7, Art. XII, 1987 Constitution)

  • Exceptions:

    • 1. By hereditary succession;

      • This means foreigners who inherit through intestate succession. It does not extend to testate succession for otherwise the Constitutional prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land. (Ramirez v. Ramirez, GR No. L-27952, February 15, 1982)

    • 2. Former natural-born citizens of the Philippines who has lost his Philippine citizenship;

      • Any natural-born citizen of the Philippines who has lost his Philippine citizenship and who has the legal capacity to enter into a contract under Philippine laws may be a transferee of a private land up to a maximum area of one thousand square meters, in the case of urban land, or one hectare in the case of rural land, to be used by him as his residence. (Sec. 2, BP 185)

    • 3. Condominium units

      • Foreign nationals can own Philippine real estate through the purchase of condominium units or townhouses constituted under the Condominium principle with Condominium Certificates of Title as long as the alien interest in such corporation does not exceed the limits imposed by existing laws. (Sec. 5, RA 4726)

      • It expressly allows foreigners to acquire condominium units and shares in condominium corporations up to not more than 40% of the total and outstanding capital stock of a Filipino-owned or controlled corporation. As long as the 60% of the members of this Condominium Corporation are Filipino, the remaining members can be foreigners. (Jacobus Bernhard Hulst v. PR Builders, Inc., GR No. 156364, September 25, 2008)

    • 4. Those acquired by Americans while the Parity Right Agreement was still in effect.

      • What is the Parity Right Agreement? Provision within the Bell Trade Act of 1946, the parity clause granted U.S citizens and corporations equal rights to Philippine natural resources as Filipino citizens

      • The parity agreement expired in 1974, and was not renewed

  • Can Religious corporations own land?

    • Religious Corporations can own lands

      • A corporation sole by the nature of its incorporation is vested with the right to purchase and hold real estate property. It need not therefore be treated as an ordinary private corporation because whether or not it be so treated as such, the Constitutional provision involved will, nevertheless, be not applicable. (Sec. 113, BP 68; Republic v. IAC, GR No. 75042, November 29, 1988)

  • Can religious associations controlled by non-Filipinos own lands?

    • But religious associations controlled by non-Filipinos cannot own lands

      • The Constitution makes no exception in favor of religious associations restricting the acquisition of public agricultural lands and other natural resources to corporations or associations at least sixty per centum of the capital of which is owned by such citizens. To permit religious associations controlled by non-Filipinos to acquire agricultural lands would be to drive the opening wedge to revive alien religious land holdings in this country. (Register of Deeds v. Ung Siu Si Temple, GR No. L-6776, May 21, 1955)

  • Can Foreigners and Foreign-owned corporations lease private lands?

    • Aliens and alien-owned corporations may lease private lands

      • Yes, but only to an allowable amount of period. The maximum period allowable for the duration of leases of private lands to aliens or alien-owned corporations, associations, or entities not qualified to acquire private lands in the Philippines shall be twenty-five (25) years, renewable for another period of twenty-five (25) years upon mutual agreement of both lessor and lessee. (Sec. 1, PD 471)

Control Test and the Grandfather Rule

  • Can Foreigners and Foreign-owned corporations lease private lands?

    • Yes, but only to an allowable amount of period

    • The maximum period allowable for the duration of leases of private lands to aliens or alien-owned corporations, associations, or entities not qualified to acquire private lands in the Philippines shall be twenty-five (25) years, renewable for another period of twenty-five (25) years upon mutual agreement of both lessor and lessee. (Sec. 1, PD 471)

  • Control Test and The Grandfather Rule

    • In Narra Nickel Mining and Development Corporation v. Redmont Consolidated Mines Corporation, G.R. No. 195580, January 28, 2015 (Resolution), these two tests were discussed by the Supreme Court in determining whether or not Narra Nickel Mining and Development Corporation Tesoro Mining and Development, Inc., and McArthur Mining, Inc. complied with the Filipino ownership requirement, thus, entitled to Mineral Production Sharing Agreements (MPSAs).

  • What is the control test?

    • Also known as the “liberal test”

    • Provides that shares belonging to corporations or partnerships at least 60% of the capital of which is owned by Filipino citizens shall be considered of Philippine nationality. This does not scrutinize further the ownership of the Filipino shareholdings

    • Primary test (but may be combined with the Grandfather rule)

  • What is the Grandfather Rule?

    • The method by which the percentage of Filipino equity in a corporation is computed, in cases where corporate shareholders are present, by attributing the nationality of the second or even subsequent tier of ownership to determine the nationality of the corporate shareholder. Thus, to arrive at the actual Filipino ownership and control in a corporation, both the direct and indirect shareholdings in the corporation are determined.

    • Applies only when the 60-40 Filipino-foreign ownership is in doubt or where there is reason to believe that there is non-compliance with the provisions of the Constitution on the nationality restriction.

      • “Doubt” - does not refer to the fact that the apparent Filipino ownership of the corporation’s equity falls below the 60% threshold. Rather, it refers to various indicia that the "beneficial ownership" and "control" of the corporation do not in fact reside in Filipino shareholders but in foreign stakeholders.

Constitutional Democracy in the Family of Nations

Membership in the Family of Nations

  • What does state mean in the international scene?

    • States are the repositories of legitimated authority over people territories

  • When did the Philippines become a member of the family of nations?

    • 1946, when the Philippines gained its independence from the United

      States

    • However, in 1945 the Philippines participated in the founding of the

      United Nations which is considered as one of the earliest and most

      significant acts of the country as an international legal personality

    • 1945 also marked the world’s public acceptance of the Philippines as an international legal person

  • What are the elements of the state?

    • According to the Montevideo Convention of 1933, Article I:

      • “The state as a person of international law should possess the following qualifications:

        • a) A permanent population

        • b) Defined territory

        • c) Government

        • d) Capacity to enter into relations with other states

  • Permanent Population or People

    • A community of persons sufficient in number to maintain the continued existence of the community and held together by a common bond of law

  • Definite territory

    • Consisting of land and waters and the airspace above them and the submarine areas below them.

  • Does a state cease to be a state if it temporarily loses control of its territory?

    • “An entity may satisfy the territorial requirement for statehood even if its boundaries have not been finally settled, if one or more of its boundaries are disputed, or if some of its territory is claimed by another state. An entity does not necessarily cease to be a state even if all its territory has been occupied by a foreign power or it it has otherwise lost control of its territory temporarily” - Third Restatement on the Foreign Relations Law of the United States

  • Government

    • Government is defined as “that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them”

  • Does international law require a specific form of government?

    • No, International Law does not require any particular form of government

  • How does the Philippines define its government?

    • On a national scale, “the government of the Philippines” refers to the three departments: executive, legislative, and judicial, mandated by the constitution.

    • On the local level, it means the autonomous regional, provincial,

      city, municipal and barrio governments.

    • In International Law, it is the national government that has legal personality and is therefore responsible for the actions of other agencies and instrumentalities of the state.

  • Capacity to enter into relations with other states

    • “An entity is not a state unless it has competence, within its own

      constitutional system, to conduct international relations with other states, as well as political, technical, and financial capabilities to do so.”

  • Does a state lose its statehood if it turns over its capacity to conduct

    foreign relations?

    • A state does not cease to be a state because it voluntarily turns over to another state control of its foreign relations, as in the ‘protectorates’ of the period of colonialism, or the “associated states of today”. States do not cease to be states because they have agreed not to engage in certain international activities or have delegated authority to do so to a “supranational” entity

    • Section I, Article II (1987 Constitution of the Philippines)

      • The capacity to conduct international relations as asserted in the

        aforementioned section and article in the constitution.

  • Is satisfying the elements of a state enough for an entity to be considered a

    state?

    • Depends, whether or not an entity possesses the elements that make a state is judged on the basis of recognition it has received or not received from the other states

      ● In the context of the United Nations, recognition as a state by other

      established states is crucial for full participation in the international

      community

A Constitutional Democracy

  • What kind of state is the Philippines?

    • The Philippines is “a democratic and republican state”. Sovereignty resides from the people and all government authority emanates from them. - Article II, Section I (1987 Constitution of the Philippines)

    • However, under the 1935 and 1973 Constitution, the Philippines was merely referred to as a “republican state”

      • Meaning our system was one where sovereignty

        resided in the people and all government authority

        emanated from the people

  • Why was the political system of the Philippines changed from '“republican” to “democratic and republican”?

    • During the deliberations of the Constitutional Convention in 1971, the

      Committee on Declaration of Principles and Ideologies recommended

      that the Philippines be designated a “national and social democratic

      republic”.

      • However, the convention was not prepared to accept a

        designation whose meaning and implication it did not fully

        comprehend

    • Instead, it preferred to retain the formulation of the 1935 Constitution but added the word “democratic”

      • The addition of this word is a monument to “people power”

        which re-won democracy in EDSA, the Philippines under the

        new Constitution is not just a representative government but

        also shares some aspects of direct democracy.

      • It is envisioned as a government whose decision processes must

        be closer to the pulse beat of the masses

      • “Government of the people, by the people, and for the people” -

        Abraham Lincoln

  • What is the difference between a Republican government and a Democratic?

    • Both forms of government use a representational system where people elect politicians to represent their interests and form the government

Republican

Democratic (Pure Democracy)

Has a written constitution of basic rights that protect the minority from being unrepresented or abused by the majority

Ruled by majority. An individual, or group of individuals composing any minority have no protection against the power of the majority.

Individuals make decisions for themselves insofar as a majority faction has limited individuals

Individuals may make decisions for themselves, insofar as there is a constitutional prohibition on interfering with freedom of choice

  • What is then a Democratic Republican Government?

    • It is a government by representatives of the people and represents popular trust in the good judgment and honorable intentions of representatives. Citizens elect officials to act on their behalf but have opportunities to directly influence decisions. It is essentially a republican form of government but emphasizes citizen participation beyond simple representative democracy.

  • How is democratic republicanism manifested in the Philippines?

    • The Philippines operates under a presidential democracy with a multi-party system. Citizens elect representatives at various levels: national (president, senators, congressmen), regional, and local

    • This allows for representation of diverse voice and interests in the government

    • The Philippine constitution allows for a citizen-initiated constitutional amendments through a petition process

    • Some local government units also utilize plebiscites on specific

      issues

    • The Philippines has a decentralized government structure (power is distributed across national, provincial, city, and municipal levels) theoretically, this allows for decision-making closer to the people.

    Constitutionalism

    The idea that government can and should be legally limited in its powers and its authority or legitimacy depends on observing these limitations

    It is a popularly lived acceptance of political process governed by public rules and institutions which define and contain the exercise of political authority

    Theocracy

    A state that is governed by a government that derives its authority directly from a religion; priests dictate process

    Aristocracy

    Nobility rules the government

    Militarism

    The belief that a government or a state should maintain a strong military capability and be prepared to use it aggressively to defend or promote national interests

  • What is a Constitution?

  • Where specifically, in the Constitution can we find the Foreign Policies of the Phillippines

    • Most are found in Article II of the 1987 Constitution

  • Define most of the foreign policy of the Philippines in this Article

  • What are the 2 aspects of Sovereingty?

  • What is constitutionalism and why is it important in our context?

  • What did constitutionalism do to power?

    • The birth of constitutionalism in the Philippines was in essence a limitation and redistribution of power. It pre-supposed a distinction between state and society. Up until the tum of the century power was concentrated in the state. The triumph of constitutionalism effected the transfer of power from the state to society.

    • It empowered people through Social Justice and Bill of Rights

Guiding Principles in Foreign Relations

1. International Law as part of the law of the land

  • How does the Philippines manifest its adherence to International Law?

    • Article II, Section 2 of the 1987 Constitution of the Philippines states 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 land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations”

    • The provision aforementioned states:

      • The Philippines, in its relations with other states, considers itself bound by international law

      • It makes the “generally accepted principles of international law’ part of domestic law binding on the members of the national community in relations with each other

      • The Philippines adopts the concept of dualism which views the domestic legal system and international legal system as discrete entities

      • At the same time bridges that duality by making international law part of domestic law

  • Philippine Foreign Relations Law consists of two sets of law:

    • International Law - applied to the Philippines and its relations to other states and other subjects of International Law.

    • Domestic Law - laws that has significance for relations with other states or which has substantial international consequence.

      • Domestic Law - consisting of legal legislation passed by legislative bodies.

      • International Law - incorporated as part of the domestic law.

  • Article II Section 2 posits that (1) Philippine in its relations with other states considered itself as bounded by International law, and (2) makes the generally accepted principles of international law part of domestic law binding on members of the national community.

    • Dualism - views the dichotomy of laws and views that IL and DL are discrete entities.

  • What is International Law?

    • Traditional - It is a body of rules and principles of action which are binding upon civilized states in their relations to one another.

      • Under this definition, only sovereign states are subjects of international law; that is only states are recognized as having rights and obligations under international law

      • Are states the only subjects of International Law?

        • The aforementioned definition of International Law is valid

          insofar as sovereign states remain as the principal subjects of international law, and international law litigation is generally between states

        • However, international law has expanded and now, to a limited extent, also governs relations of states to individuals

    • 3RD RESTATEMENT OF FOREIGN RELATIONS DEFINITION - The law concerned with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.

  • What are sources of International Law?/Where can International Law be found?

    • Article 38, Statute of the International Court of Justice - The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

      • international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

      • international custom, as evidence of a general practice accepted as law;

      • the general principles of law recognized by civilized nations;

      • subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

      • This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

    • Restatement (Third) of the Foreign Relations Law of the United Nations - A rule of international law is one that has been accepted as such by the international community of states:

      • a) in the form of customary law;

        • Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation

      • b) By international agreement; or

        • International agreements create law for the states parties thereto and may lead to the creation of customary international law which such agreements are intended for adherence by states generally and are in fact widely accepted

      • c) By derivation from general principles common to the major legal systems of the world

        • General principles common to the major legal systems even if not incorporated or reflected in customary law or international agreements, may be invoked as supplementary rules of international law where appropriate

  • Is there a hierarchy in the sources of International Law?

    • No, there is no hierarchy in the sources of international law as it is in the state’s jurisdiction which source of international law they will apply in specific circumstances

  • Is there a significance in the order of enumeration of the Statute and the Restatement?

    • The statute is “generally regarded a complete statement of the sources of international law”

      • The statue mentions international covenants first and gives second mention to customs in recognition of the importance treaties have come to occupy in international law since the start of the 20th century

    • The restatement, likewise authoritative, contains substantially

      the same enumeration

      • On the other hand, the restatement gives mention to customary international law first as according to the restatement treaties lead to the creation of customary law and therefore even with the proliferation of treaties, the importance of custom in international law remains

  • What is a treaty?

    • A treaty is an : (a) international agreement; (b) conducted between states; (c) in written form; and (d) governed by international law; (e) whether embodied in a single instrument or in two or more related instruments, and whatever particular designation they may be given. [VCLT, art.2(1)(a)]

  • What if a treaty and a custom contradict each other?

    • The answer varies. In the Wimbledon case, a treaty that came later than a particular custom prevailed since it manifested the deliberate choice of the parties and the principle of pacta sunt servanda. Article 53 of the VCLT however, emphasizes that a later treaty is “void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”

  • Is treaty a direct source of International Law?

    • According to Article 38 of the Statute of ICJ, a treaty is one of the primary or direct sources of International Law. However, not all treaties can be considered as a direct source of international law.

      • A bilateral treaty for example is binding only upon the signatories and the rest of the international community which had no participation or adoption in the said treaty are not bound upon the treaty

        • Such a treaty, being limited in operation is a source of “particular international law”

        • In a multilateral treaty, only the state who has been aggrieved by its fellow signatory can claim legal obligations

  • What is a particular International Law?

    • Refers to specific treaties or agreements entered into by states or other international actors, these agreements create specific obligations only for the parties involved

  • Can a bilateral treaty become a primary source of International Law?

    • Yes, bilateral treaties may become a primary source of international law if, (1) they are of the same nature, (2) contain uniform provisions, and (3) concluded by a substantial number of states

      • General rule - for a treaty to be considered as a direct source of international law, it must be concluded by a sizable number of states and thus reflect the will or consensus of the family of nations

      • Even if originally agreed upon by a few states, the treaty may become binding upon the whole world if it is intended to lay down rules for observance by all and it is subsequently signed or acceded to be other states which thereby submit to its provisions.

  • What is a custom?

    • A custom is defined as a practice which has grown up between states and has come to be accepted as binding by there mere persistent usage over a long period of time

  • Are all states bound by customary law?

    • Yes, all states are bound by customary international law considering the following principles.

      • Consent - even if a state has not specifically consented to be bound by a customary law, the consistent practice of following a custom and accepting it as law implicates their consent

      • Universality - customary law arises from widespread and consistent state practice accompanied by opinio juris sive necesitaties or practice through a sense legal obligation. This universality creates a general expectation of compliance

      • Objectivity - international courts and tribunals identify and interpret customary law based on objective evidence and not state preference

  • Can a state choose not to be bound or adhere to customary law?

    • While in a general sense, the states are bound by customary international law. There may be exemptions to this:

      • Persistent objectors - a state may not be bound by custom since the process of formation and development of the custom, the state expressed its objection to the practice. The evidence of objection must be clear and unequivocal.

      • Emerging norms - if a customary norm is new and under development, not all states may be bound to them

    • However, it should be noted that a state’s objection to adherence to an international custom has the risk of international backlash and repercussions.

  • What are the defects of customary international law?

    • The difficulty in determining when a practice can be considered as a custom and has acquired obligatory character

    • Inability to adjust to the moving developments of the international society which it is supposed to regulate

  • What is the difference between an international custom and an international norm?

    • International norms can have various sources and may or may not be legally binding, encompassing wider principles and behaviors. International customs on the other hand are a specific type of norm arising from state practice with the force of law or opinio juris sive necessitaties

  • How can a norm be an international custom?

    • In the discussion Bayan Muna v. Romulo, in order to establish the customary practice of a norm, two elements must be considered namely:

      • (1) state practice, and

        • The objective element of establishing the status of a norm as a customary law

        • It must follow or adhere to the elements of customary law:

          • Generality - a significant number of the international

            community must practice the norm

          • Uniformity and Consistency - the practice must be uniform and consistent, the uniformity in some cases may not need to be complete but rather substantial

          • Duration - the duration of the practice can be short or long, provided that the practice is consistent and general

      • (2) opinio juris sive necessitaties

        • The subjective and psychological element of establishing the status of a norm as customary law

        • It requires that the state practice or the norm must “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 requiring it”

        • In summary, state practice of the norm must be from a sense of legal obligation

  • Where does the Philippines stand in regards to customary law?

    • Section II, Article II of the 1987 Constitution - the Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land

  • Why are the General Principles of Law universally binding?

    • The general principles of the law have become universal in application

      because of the unilateral decision of a considerable number of states to adopt and observe them in recognition of their intrinsic merit

      • Examples:

        • Pacta sunt servanda

        • Consent

        • Res judicata

        • Renunciation of war as an instrument of national policy

        • Right to life, liberty, and due process

  • What are the secondary sources of International Law?

    • Judicial decisions

    • Writings and teaching of the most highly qualified publicists

  • Why are they considered as secondary sources?

    • Secondary sources are those that interpret and analyze the primary sources of international law.

    • They do not directly create laws.

  • Are judicial decisions only rendered by international tribunals?

    • Article 38 of the Statute of ICJ does not distinguish between those rendered by international tribunals and arbitration bodies and those promulgated only by national courts

    • Both kinds of decisions are acceptable as long as they are a correct application and interpretation of the law of nations

    • “The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect” - Thirty Hogshead of Sugar v. Boyle

  • Is state decisis applicable in International Law?

    • Stare decisis is the policy of using judicial decisions made in the past to interpret written laws and appropriately apply those laws to the facts in the present case

    • The doctrine of stare decisis is not applicable in international law, the

      decision of a court in one case will only have persuasive value and has no binding force except between parties in respect to that particular case

  • Can any writings of a publicist qualify as a secondary source of International

    Law?

  • No, only the writings and teachings of a highly qualified publicist who is a scholar of public international law (legal scholars or academic writers) is considered a legitimate secondary source of International Law

2. War and National Policy

  • What is the Philippines’ stand on war?

    • The Philippines renounces war as an instrument of national policy…and

      adheres to the policy of peace, equaliy, justice, freedom, cooperation,

      and amity with all nations” - Article II, Section 2 (1987 Constitution)

  • Was War acceptable in early International Law

    • War was an acceptable instrument of self-help

    • It was legally admissible means for gaining political or other advantage over another state

  • When did the International Community renounce war as an instrument of

    national policy/self-help?

    • The Great War of 1914 showed the intense savagery that wars can take

      on.

    • The commitment made through the United Nations charter includes the renunciation of the “use of force against the territorial integrity or

      political independence of any state”

  • Is the renunciation of war definite?

    • The use of force is not excluded when the Security Council authorizes it after a determination of the “existence of any threat to the peace, breach of the peace, or act of aggression…”

    • The right to use force in “humanitarian intervention” is also allowed by the charter

  • Is the renunciation of war applicable to the International Community as a whole?

    • The Prohibition of War has ripened into customary international law

      binding on all and has the character of jus cogens

      • Jus cogens - peremptory norm of international law that

        holds the highest hierarchical position among all

        customary norms and principles, it can only be

        modified by another jus cogens

  • August 27, 1928 the General Treaty for Renunciation of War as an

    Instrument of National Policy (Kellogg-Briand Pact)

    • Article I

      • The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another

    • Article II

      • The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature of whatever origin they may be, which may arise among them, shall never be sought except by pacific means

  • When did the Philippines renounce war as an instrument of national policy?

    • The Kellogg-Briand Pact became the inspiration of the provision of the renunciation of war in the 1935 Philippine Constitution

    • The constitution only renounced wars of aggression

    • The power to wage a defensive war is of the very essence of sovereignty

    • The Constitution makes defense of the state a duty of government and of the people and gives to Congress the power to declare a state of war

3. An Independent Foreign Policy

  • Article II, Section 7 (The 1987 Constitution of the Philippines)

    • “The state shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination”

4. Freedom from Nuclear Power

  • Article II, Section 8 (The 1987 Constitution of the Philippines)

    • “The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory”

5. Personal Dignity and Human Rights

  • Article II, Section 11 (The 1987 Constitution of the Philippines

    • “The State values the dignity of every human person and guarantees full respect for human rights”

    • The concretization of this provision is found in the Bill of Rights and in the human rights provisions of Article XII.

6. Nationalist Economy and Private Initiatve

  • Article II, Section 19 (The 1987 Constitution of the Philippines)

    • “The State shall develop a self-reliant and independent national economy efficiently controlled by Filipinos”

  • Article II, Section 20 (The 1987 Constitution of the Philippines)

  • “The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments”

7. Sovereign Immunity of Foreign States

  • Article XVI, Section 3 (THe 1987 Constitution of the Philippines)

    • “The state may not be sued without its consentI

  • Are there any exceptions to Sovereign Immunity?

    • The concept of state immunity only covers acts under jus imperii (public acts). Once a state enters into a commercial transaction or jus gestionis, it becomes treated as a private individual and therefore is not immune from the resulting liability and consequences of its actions

      • In violations of treaties for example, a treaty is considered to be

        a contract between two states, if a state fails to perform its duties and obligations stated in the treaty for unjustified reasons,

        the state may be sued and state immunity will not be applicable

Foreign Relations in the National Economy

1. General Economic Policy of the Constitution

  • Article XII, Section 1 (1987 Constitution of the Philippines)

    • The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

    • The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

    • In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.

      • The above provisions express some general economic policies of the Constitution

      • They are guidelines for all those who share in the conduct of the country’s foreign relations

      • It is packed with principles that shall serves as a constitutional guidelines for the various branches of government for the promotion of the common good in the economic sphere

  • THREEFOLD GOAL OF THE PHILIPPINE’S ECONOMIC POLICY

    • more equitable distribution of opportunities, income, and wealth;

    • a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and

    • an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

  • 3 BASIC DIRECTIONS OF THE PHILIPPINE’S ECONOMIC POLICY

    • Sets the dual goal of dynamic productivity and a more equitable distribution of what is produced

      • The dynamism of the economy that is envisioned is expressed in the words “sustained increase in the amount of goods and services produced” and “expanding productivity”

      • The equity goal is expressed in various ways: “a more equitable distribution of opportunities, income, and wealth”, “for the benefit of the people…especially the underprivileged”, and “to broaden the base of ownership”

    • Seeks complementarity between industrialization and agricultural development

      • Does this entail that industrialization cannot take off until agricultural development is achieved?

        • No, what is envisioned in the provision is industrialization as a result of releasing locked up capital through agrarian reform

        • A flexible and rational relationship between the industrialization and agricultural development

    • It is protective of the Filipino

      • The Filipino consumer is protected against low quality products, therefore a healthy degree of (foreign) competition is allowed

      • The Filipino producer is protected from unfair foreign competition and trade practices

      • “Unfair foreign competition and trade practices” - anything that is harmful to Philippine enterprises, the protection may be in the form of tariffs, quantitative restrictions, or even total ban of imports

        • There is no intention to protect Filipino industries from foreign competition at the expense of consumers

2. Alien and Public Lands and other Natural Resources

  • Article XII, Section 2 (1987 Constitution of the Philippines)

    • All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

    • The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

    • The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.

    • The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

    • The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

  • Jura Regalia

    • Based on the Spanish degree that all lands were held from the Crown

    • Became the foundation of Philippine law on natural resources

      • “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State”

        • Any other person claiming ownership of a portion of the public domain or claiming benefit from it must be able to show title or authorization from the state

  • Dominium VS Imperium

    • Dominium - the power to alienate what is owned and the capacity of the State to own or acquired properties

      • Only agricultural lands of the public domain may be alienated. All other natural resources cannot.

      • Section 1, Article XIII of 1935 Constitution

    • Imperium - the power to govern possessed by the State which is embraced in its sovereignty.

  • If natural resources, except agricultural land, can not be alienated, how can they be explored, developed, or utilized?

    • Earlier Constitutions

      • By license, concession, or lease

        • Lease - involves delegation of some powers of control and is therefore a diminution of control by the State

          • Alienable lands may be subject to lease to Filipinos and Filipino corporations (Article XII, Section 3 1835 Constitution)

          • Inalienable lands can only be developed and utilized directly by the state either by itself or in conjunction with qualified individuals or corporations through “co-production, joint venture, or production sharing agreements''. It is through these devices that “full control and supervision of the State” is observed

          • This rule however, does not apply to leases and concessions already granted prior to the adoption of the new Constitution

    • 1987 Constitution

      • Co-production, joint venture, or production sharing agreements

        • Under the full control and supervision of the State

  • Who is/are allowed to exploit or develop natural resources?

    • This right is reserved for Filipino citizens, or corporations, or associations at least 60% of whose capital is owned by (Filipino) such citizens

      • The rights to develop the natural resources and operate the public utilities of the Philippines is one of the bulwarks of our national integrity

  • Is foreign capitalization allowed?

    • Yes, but foreign capitalization is only limited to 40%

  • Can marine resources be exploited?

    • No, As stipulated in Section 2, Article XII, “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens”

      • Foreigners cannot exploit marine resources even if they are willing to pay rent or fees for fishing rights

      • Foreign entities are clearly excluded from fishing

  • How is foreign investment allowed in the National Economy?

    • Through presidential agreements with entities for the purpose of exploration, development, and utilization of minerals, petroleum, and other mineral oils

    • The authority to enter into agreements with foreign corporations, that is “foreign owned corporations” is given to the President

      • Any agreement entered to must be “according to the general terms and conditions prescribed by law, based on real contributions to the economic growth and general welfare of the country”

      • The President must report to the congress every contract he enters into in order to keep the law abreast of the needs of the country

      • Agreements may only be for technical and financial assistance and only in relation to large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils

3. Aliens and Private Lands

  • Article XII, Section 7

    • Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

  • Article XII, Section 8

    • Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law.

  • What is the meaning of “Private Lands”?

    • Lands of private ownership

    • Lands owned by private individuals and those which are patrimonial property of the state or municipal corporations

  • Who can acquire or hold lands of public domain?

    • 1. Filipino citizens

    • 2. Filipino corporations

  • Can aliens acquire private land?

    • No, unless under the following exceptions:

      • 1. In cases of hereditary succession

        • through interstate succession

      • 2. Former natural-born Filipino citizens who lost their citizenship

        • Limited to 1000 square meters (urban land)

        • 1 hectare (rural land)

      • 3. Those acquired when the Parity Right Agreement was still in effect (1946)

        • The Parity Right Agreement (1946) granted US Citizens and corporations equal rights to Philippine natural resources as Filipino citizens

  • How about Condominium Units?

    • Foreign nationals can own Philippine real estate through the purchase of condominium units or townhouse (Condominium principle with Condominium Certificates of Title)

4. Aliens and Public Utilities

  • Article XII, Section 11

    • No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

5. Aliens and Security Areas of Investment and Trades

  • Article XII, Section 10

    • The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

    • In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

    • The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

  • Article XII, Section 11

    • The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.

  • Article XII, Section 13

    • The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.

6. A Nationalist Manpower Policy

  • Article XII, Section 11

    • The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.

  • Article XII, Section 14

    • The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit.

7. Foreign Loans

  • Article XII, Section 21

    • Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public

  • Implications:

    • Foreign loans whether private or public can be obtained only in accordance with law and regulations

    • Information on public foreign loans and government guaranteed loans must be made public

  • Article VII, Section 20 - gives the President authority to contract or guarantee foreign loans with the prior concurrence of the monetary board and subject to limitations which the legislature might impose

8. Aliens, Mass Media, and Advertising

  • Article XVI, Section 11

    • The ownership and management of mass media shall be limited to the Philippines, or to corporations, cooperatives, or associations, wholly-owned and managed by such citizens.

    • The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.

    • Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry

    • The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines

  • Mass Media

    • Include radio, television, and printed media

    • They do not include commercial telecommunications, nor the advertising industry for which a different rule applies

    • 100% Filipino ownership and management are required

    • Section 11 (1) also prohibits combinations in restraint of trade and unfair competition, it commands congress to “regulate or prohibit monopolies in commercial mass media”

      • The definition of monopolies are up to the discretion of the congress

  • Advertising

    • The advertising industry is treated less stringent than are mass media on the argument that advertising is not mass media but the use of mass media

    • Only 30% of Foreign Participation is allowed