In 2023, Philippine State practice consisted mainly of Supreme Court decisions covering varied issues and concerns discussing and reiterating fundamental international law doctrine. For instance, in Macalintal v. Bersamin, the Court addressed the incorporation and transformation modes of applying international law in domestic law. In this case, the Court clarified the distinction between “generally accepted principles of international law” and “general principles of law.” In Bayan Muna v. President Arroyo, the Court discussed the principle of auto-limitation, such that states may limit their sovereignty when entering into treaties. The Court also mentioned the power of the Philippine President to enter into treaties. This power was also discussed in IDEALS, Inc. v. The Senate, but the Court noted that this power was not absolute, noting the obligation of the President to make sure that treaties are in line with the Constitution and statutes. This case also discussed the concept of reservations under the Vienna Convention on the Law of Treaties (VCLT) and also reiterated that under Philippine law, international agreements can be in the form of treaties or executive agreements and that an exchange of notes is an example of the latter. The case also mentioned Article 31 of the VCLT as a mode of interpretation.
Moreover, the Supreme Court applied international law in tandem with domestic law to decide cases. In Icebergs v. Filipino Society, the Court applied the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) alongside the Intellectual Property Code of the Philippines in ruling that there was copyright infringement. In this case, the Court considered the Berne Convention as domestic law or at least equivalent to it in stature. In Water for All v. Manila Waterworks, the Court interpreted the precautionary principle in ruling against the petitioners.
As in previous years, some cases discussed international human rights obligations. For example, in Macalintal v. Bersamin, the Court discussed the right of suffrage under Article 25 of the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). The Court also reiterated previous rulings identifying the entire UDHR as customary international law. In Re: Disturbing Social Media Posts, an administrative case was filed against some lawyers, and the Court invoked Article 26 of the ICCPR to rule against them. In Baquirin v. Dela Rosa, the Court explained the right-to-life provisions of the ICCPR, the Convention on the Rights of the Child, and the International Convention on the Protection of All Migrant Workers.
Regarding treaties, the most significant developments were in international economic law and multinational or regional cooperation. The most important development is perhaps the concurrence of the Philippine Senate with the ratification of the President of the Regional Comprehensive Partnership. Other significant developments include a treaty under the auspices of the International Labour Organization and bilateral treaties with the Republic of Korea and Brunei Darussalam. As for legislation, the most significant is an act that governs internet transactions and another that protects cultural heritage.
Judicial Decisions
Territory and Jurisdiction
International Cooperation in Adjudication and Enforcement (e.g., Obtaining Evidence from Abroad and Extradition Agreements)
The Board of Commissioners of the Bureau of Immigration and the Jail Warden, Bureau of Immigration Detention Center, Petitioners, VS. YUAN WENLE, Respondent. [G.R. No. 242957, 28 February 2023]
Through a letter, the Embassy of the People’s Republic of China in the Philippines requested the Bureau of Immigration (Bureau) to arrest and deport three Chinese nationals, including the Respondent. The Board of Commissioners of the Bureau issued a summary deportation order (SDO). The Respondent was arrested and detained. The Respondent filed a petition for habeas corpus, which the Regional Trial Court granted.
In the process of discussing the validity of the SDO, the Court explained that “the temporary stay of aliens in the Philippines is but a privilege, not a right, subject to the dictates of public policy and the appropriate determination by the authorities vested with that power under our Immigration Law.” It added, “[a]ny legislation aimed at preserving national security and protecting public safety through border control measures is considered a legitimate and compelling state interest.” It ruled that “SDO s satisfy the requirement of an existence of compelling state interest for them to be used in the enforcement of immigration laws.”
Relationship between International and Domestic Law
Theories of International and Domestic Law – Monism, Dualism
Atty. Romulo B. Macalintal, Petitioner, Vs. Commission on Elections and the Office of the President, through Executive Secretary Lucas P. Bersamin, Respondents. [G.R. No. 263590. 27 June 2023, and G.R. No. 263673. 27 June 2023]
Consolidated Petitions assailing the constitutionality of Republic Act No. (RA) 11935, which postponed the December 2022 Barangay and Sangguniang Kabataan Elections were filed with the Court. The Court argued the importance of the right of suffrage and, in the process, quoted portions of the Universal Declaration of Human Rights (UDHR) and Article 25 of the International Covenant on Civil and Political Rights (ICCPR).
Thereafter, the Court explained the binding effect of these instruments by reiterating how international law becomes binding in the Philippine jurisdiction. It began with the Philippine Constitution stating that “international law can become part of the sphere of Philippine law either by transformation or incorporation.”
The Court explained that “[t]he transformation method ‘requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation.’” This rule applies to treaties, which “become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution, which requires Senate concurrence. From then, they have the force and effect of a statute enacted by Congress.”
On the other hand, the Court discussed that incorporation “applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law.” This rule is based on Article II, Section 2 of the Constitution, which “declares that generally accepted principles of international law are adopted as part of the law of the land.” It explained that the term generally accepted principles of international law “refer to norms of general or customary international law that are binding on all states.” The Court also cited the case Pangilinan v. Cayetano, which “explained that the term ‘generally accepted principles of international law’ includes both ‘international custom’ and ‘general principles of law’ – both of which constitute distinct sources of international law under Article 38 of the Statute of the International Court of Justice.” The Court then quoted Razon v. Tagitis, which explained that “international custom pertains to ‘customary rules accepted as binding [and] 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).’”
Given these rules, the Court concluded that:
[W]hile the UDHR is not a treaty and may not have been originally intended to have legal binding force, it nonetheless has been recognized as reflecting customary international law or has gained binding character as customary law through the subsequent adoption of treaties and international instruments that reflect its various principles. Indeed, this Court has recognized the UDHR as part of the generally accepted principles of international law, and therefore, binding on the State.
Thus, this ruling is consistent with the Court’s other decisions wherein it decided that the entire UDHR is customary international law.
In contrast, the Court noted that “the Philippines ratified the ICCPR on 23 October 1986 [and] following Article VII, Section 21 of the Constitution, the ICCPR likewise has the force and effect of a statute enacted by Congress.” Thus, this case follows the line of cases that consider treaties with equal status as domestic law.
The Court concluded by stating that:
the recognition by the UDHR and the ICCPR of the people’s right to take part in the conduct of public affairs, directly or through freely chosen representatives and participate in genuine and periodic elections, subject only to such conditions or restrictions established by law based on objective and reasonable criteria are deemed to be binding on the State and have the force of domestic law.” (emphasis in the original)
Treatment of International Law by Domestic Courts
Bayan Muna Party-List Representatives Satur C. Ocampo and Teodoro A. Casiño, Anakpawis Representative Crispin B. Beltran, Gabriela Women’s Party Representatives Liza L. Maza and Luzviminda C. Ilagan, Rep. Lorenzo R. Tañada III, and Rep. Teofisto L. Guingona III, Petitioners, Vs. President Gloria Macapagal-Arroyo, Executive Secretary Eduardo R. Ermita, Secretary of the Department of Foreign Affairs, Secretary of the Department of Energy, Philippine National Oil Company, and Philippine National Oil Company Exploration Corporation. [G.R. No. 182734. 10 January 2023]
This case deals with the following companies: PNOC, the national oil company of the Republic of the Philippines (Republic); CNOOC, the state-owned oil company of the People’s Republic of China; and PETROVIETNAM, the state-owned oil company of the Socialist Republic of Vietnam. The three companies, with the authorization of their respective Governments, signed the Joint Marine Seismic Undertaking (JMSU) in Manila, Philippines. The JMSU has a term of three years, and its execution is an expression of the Parties’ desire “to engage in a joint research of petroleum resource potential of a certain area of the South China Sea as a pre-exploration activity.” Moreover, the JMSU covers the portion of the South China Sea claimed by the Philippines, China, and Vietnam. In 2008, the petitioners sought to declare the JMSU as unconstitutional and void. The Philippine Supreme Court held that the JMSU was unconstitutional.
In the course of explaining why the JMSU was unconstitutional, the Court discussed “the State’s power of auto-limitation or that property of a state-force due to which it has exclusive capacity of legal self-determination and self-restriction [pursuant to which] the State may, by its consent, express or implied, submit to a restriction of its sovereign rights.” The Court held that “the consent of the State to the alleged restriction of its sovereign rights over the Agreement Area is wanting because the President did not personally sign the JMSU.”
The Court also stated that the JMSU would not be valid even if treated as an international agreement. The Court explained, “This is because in our system of government, the President, being the head of the State, is the chief architect of our foreign policy. The JMSU was not also concurred in by at least two-thirds of all the members of the Senate.” Thus, the Court considered the JMSU as a treaty that, under Philippine law, required ratification by the President and the concurrence of two-thirds of the members of the Philippine Senate for it to be valid.
Treaties
Making and Concluding Treaties – Negotiation, Accession, Ratification, Deposit, Registration, Internal Constitutional Arrangements
Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, Inc.), Represented by Its Executive Director, Mr. Edgardo Ligon, Alliance of Progressive Labor (Apl), Represented by Its Chairperson, Daniel L. Edralin, Ecological Waste Coalition of the Philippines, Inc., Represented by Its President/Executive Director, Riedo Panaligan; Mother Earth Foundation, Represented by Its President, Marietta Marciano; Concerned Citizens Against Pollution, Represented by Its President, Renato D. Pineda, Jr.; NGOs For Fisheries Reform, Represented by Its Executive Director, Dennis F. Calvan; Kilusan Para Sa Pagpapaunlad ng Industriya ng Pangisdaan, Represented by Its Executive Committee Member, Pablo R. Rosales, Jr.; Ana Theresia Hontiveros-Baraquel, as the Duly Elected Representative of the Akbayan Citizens’ Action Party; and Philippine Workers Alliance, Represented by Its President Francisco P. Mero, Petitioners, Vs. the Senate of the Philippines, Represented by Senators Who Cast a Vote of Concurrence for the JPEPA; the Secretary of Trade and Industry; the Secretary of Foreign Affairs; the Executive Secretary; the Secretary of Finance; and the Commissioner of Bureau of Customs, Respondents. [G.R. Nos. 184635 and 185366, 13 June 2023]
In 2006, the Philippines and Japan signed the Japan-Philippines Economic Partnership Agreement (JPEPA), the first bilateral free trade agreement entered into by the Philippines in over half a century. This case involves two petitions challenging the JPEPA’s constitutionality.
After quoting Article (2) of the Vienna Convention on the Law of Treaties (VCLT), which defines what a treaty is, the Court stated that “[t]he authority to negotiate and enter into treaties is solely bestowed on the president, who represents the country in all external relations.” The Court also quoted from Pimentel, Jr. v. Office of the Executive Secretary where it stated that “As the chief architect of foreign policy, … the [p]resident is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.” But it clarified that “[n]onetheless, this authority is not absolute,” noting that the Philippine Constitution “limits this power by requiring the Senate’s concurrence for a treaty or international agreement to be valid and effective.” It added that “the president must ensure that ‘paramount importance [is given] to the sovereignty of the nation, the integrity of its territory, its interest, and the right of the sovereign Filipino people to self-determination.’” Thus, “[i]n the conduct of foreign relations, the president must guarantee that all treaties entered into are in line with the Constitution and statutes.” The Court quoted from Pangilinan v. Cayetano:
The Constitution is the fundamental law of the land. It mandates the President to “ensure that the laws be faithfully executed.” Both in negotiating and enforcing treaties, the President must ensure that all actions are in keeping with the Constitution and statutes. Accordingly, during negotiations, the President can insist on terms that are consistent with the Constitution and statutes, or refuse to pursue negotiations if those negotiations’ direction is such that the treaty will turn out to be repugnant to the Constitution and our statutes.
The Court also noted that Article VIII, Section 5(2)(a) of the Constitution vests this Court with the authority to declare a treaty unconstitutional. Thus, this case follows the line of cases that hold that domestic law has primacy over international law.
Exceptions and Reservations
Initiatives for Dialogue and Empowerment Through Alternative Legal Services, Inc. (IDEALS, Inc.), et al. Petitioners, Vs. the Senate of the Philippines et al. [G.R. Nos. 184635 and 185366, 13 June 2023]
The Court noted that the VCLT defines “reservation” as “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving[,] or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State[.]” It added that “[i]ts purpose is to ensure that the national policymakers are not unduly constrained in advancing their countries’ national policy objectives amid efforts to enhance investment opportunities.”
The Court agreed with the “respondents that the limitation imposed by Article XII, Section 2 of the Constitution has been protected in the Philippine list of reservations.” It noted that “Annex 7 of the JPEPA lists the measures that Japan and the Philippines excluded from the coverage of their commitments.” It reiterated that “all elements shall be considered in interpreting a reservation for existing measures.”
Application of Treaties to the State
Initiatives for Dialogue and Empowerment Through Alternative Legal Services, Inc. (Ideals, Inc.), et al. Petitioners, Vs. the Senate of the Philippines et al. [G.R. Nos. 184635 and 185366, 13 June 2023]
On 22 August 22, Foreign Affairs Secretary Romulo sent former Japanese Prime Minister of Foreign Affairs Koumura (Minister Koumura) a letter containing the Philippines and Japan’s shared understanding of how the JPEPA would be implemented. Minister Koumura replied on 28 August 2008, confirming the shared understanding. This exchange of letters constitutes the Romulo-Koumura Exchange of Notes.
While discussing the binding nature of the Romulo-Koumura Exchange of Notes, the Court reiterated that under Philippine law, “[t]reaties and executive agreements are both international agreements. In the international sphere, they are both binding. However, unlike a treaty, which to be valid and effective requires Senate concurrence after executive ratification, an executive agreement does not.” Referring to Bayan Muna v. Romulo, the Court stated that it had “categorized an exchange of notes as an internationally accepted form of intergovernmental agreement.” It reiterated that “treaties and executive agreements are both legally binding in our jurisdiction” and thereafter quoted from its decision in Pangilinan v. Cayetano, which discussed the difference between an executive agreement and a treaty. Later, it clarified that “treaties and executive agreements are not wholly the same.” Citing Saguisag v. Ochoa, it added that “[a]n executive agreement can be distinguished from a treaty based on two essential features: (1) the existence of an executive agreement must be ‘traceable to an express or implied authorization under the Constitution, statutes, or treaties;’ and (2) treaties are regarded as ‘superior to executive agreements.’” It further explained that:
An exchange of notes, as an executive agreement, is concluded to implement existing policies, or to be considered in interpreting a treaty or applying its provisions. It is just as binding as a treaty but must yield in case of conflict with the Constitution, a statute, or a treaty. The obligations created by an executive agreement cannot go beyond what is explicitly allowed or reasonably implied by the mandate it seeks to implement. An executive agreement that contains overbroad obligations renders its validity and effectivity questionable.
The Court also quoted the third paragraph of Article 31 of the VCLT. It stated that “the Vienna Convention expressly provides for the rule in interpreting a treaty in relation to any subsequently executed agreement between the parties.” It concluded that “the Vienna Convention allows the consideration of any subsequent agreement between the parties in interpreting the treaty or applying its provisions.”
The Court stated that “[t]he Romulo-Koumura Exchange of Notes shows that both countries confirmed their shared understanding that the JPEPA’s provisions shall be implemented in accordance with the Constitution of the Philippines and that of Japan.” The Court also noted that “[t]he Senate of the Fourteenth Congress, upon concurring in the JPEPA’s ratification, expressly recognized the Romulo-Koumura Exchange of Notes.” Thus, it held that “the Romulo-Koumura Exchange of Notes is a valid executive agreement. Therefore, as with the JPEPA, it is likewise binding.”
International Economic Law
Intellectual Property (WIPO)
Icebergs Food Concepts, Inc. and Allan John T. Young, Petitioners, Vs. Filipino Society of Composers, Authors, and Publishers Inc. [G.R. NO. 256091. 12 April 2023]
The Respondent discovered that the Petitioner publicly played in its restaurants copyrighted musical works found in the former’s musical repertoire without the required public performance license. The Respondent filed a complaint for copyright infringement. The Regional Trial Court and the Court of Appeals ruled in favor of the Respondent, hence the petition. The Court affirmed the lower courts’ rulings and found the petitioner guilty of copyright infringement.
As to the applicable law, the Court said that “[i]ntellectual property right, being primarily a private right, is governed by the law of the country where its enforcement is being sought.” Thus, the Court held that the applicable law is the Intellectual Property Code of the Philippines “as well as the treaties on intellectual property rights, to which the Philippines is a party, such as the Berne Convention for the Protection of Literary and Artistic Works. Thus, in this case, the Berne Convention was considered as domestic law because the Philippines was a party to it. This follows the line of cases that consider treaties the Philippines is a party to as domestic law.
In the course of explaining the difference between public performance and communication to the public, the Court explained that “the Berne Convention likewise distinguishes public performance from communication to the public.” The Court then quoted Articles 11 and 11bis of the Berne Convention. The Court further explained that “the Berne Convention deals with the protection of works and the rights of their authors, and also gives the creators a degree of control with regard to how their works are used, by whom, and on what terms” and that “[t]he Philippines became a party to the Berne Convention in 1951.”
International Environmental Law
Environmental Protection through Law/Regulation
Water for All Refund Movement, Inc., Petitioner, Vs. Manila Waterworks and Sewerage System, Maynilad Water Systems, Inc., and Manila Water Company, Inc., Respondents. [G.R. No. 212581, 28 March 2023]
The petitioner filed a suit against the respondents for allegedly operating a combined drainage-sewerage system without the necessary permits from the Department of Environment and Natural Resources and the Department of Health. The lower Court dismissed the petition, so the petitioner filed a Petition for Certiorari before the Supreme Court, invoking the precautionary principle as the basis for the issuance of a Writ of Kalikasan. It argued that the principle requires the Supreme Court to require evidence from the respondents that all environmental laws are complied with and that no environmental harm is caused.
The Court explained that “the extraordinary remedy of a Writ of Kalikasan is provided [for]under Section 1, Rule 7, Part III of the [Rules of Procedure for Environmental Cases (RPEC)]…[and] is categorized as a special civil action and conceptualized as an extraordinary remedy; it covers environmental damage of such magnitude that will prejudice the life, health or property of inhabitants in two or more cities or provinces.” The Court ruled that the petitioner did not meet the requirements for the writ and “sidestepped its obligation to substantiate its allegations by invoking the Precautionary Principle, specifically the stringent requirement to prove environmental damage.”
The Court quoted Section 1, Rule 20, Part V of the RPEC, on the Precautionary Principle, which provides that ‘[w]hen there is lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it.” It added that “The precautionary principle likewise mandates that the constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.” Citing West Tower Condominium Corp. v. First Phil. Industrial Corp., the Court said that “the precautionary principle only applies when the link, between the cause, that is the human activity sought to be inhibited, and the effect, that is the damage to the environment, cannot be established with full scientific certainty.” In this case, the Court found that the petitioner “not only failed to provide a link, it likewise did not provide the scientific basis for its particular objection to the operation of a combined sewerage-drainage system or submit any evidence of a resulting environmental damage.”
Law of the Sea
Exploring and Exploiting Living and Non-living Resources
Bayan Muna Party-List Representatives Satur C. Ocampo and Teodoro A. Casiño, Anakpawis Representative Crispin B. Beltran, Gabriela Women’s Party Representatives Liza L. Maza and Luzviminda C. Ilagan, Rep. Lorenzo R. Tañada III, and Rep. Teofisto L. Guingona III, Petitioners, Vs. President Gloria Macapagal-Arroyo, Executive Secretary Eduardo R. Ermita, Secretary of the Department of Foreign Affairs, Secretary of the Department of Energy, Philippine National Oil Company, and Philippine National Oil Company Exploration Corporation. [G.R. No. 182734. 10 January 2023]
This case deals with the Joint Marine Seismic Undertaking (JMSU) aforementioned above, which was signed by the three companies – PNOC, CNOOC, and PETROVIETNAM. The Court explained that while they could not assume that the area covered by the agreement in question included the West Philippine Sea due to the absence of an official map covering the agreement, the Court was certain that “the Agreement Area is within the Philippines’ [Exclusive Economic Zone (EEZ)]. Therefore, whatever natural resources found therein is owned by the Republic.” Thus, this case demonstrates the Philippines’ position that it exercises ownership over the natural resources within the Philippine EEZ. After the statement, the Court discussed the constitutional and legal requirements for exploring natural resources. The Court did not seem to distinguish between natural resources found in the territory of the Philippines and within the EEZ.
Human Rights
Implementation of Human Rights Treaties (e.g., Domestic Laws and Institutions)
Atty. Romulo B. Macalintal, Petitioner, Vs. Commission on Elections and the Office of the President, through Executive Secretary Lucas P. Bersamin, Respondents. [G.R. No. 263590. 27 June 2023, and G.R. No. 263673. 27 June 2023]
Consolidated Petitions assailing the constitutionality of Republic Act No. (RA) 11935, which postponed the December 2022 Barangay and Sangguniang Kabataan Elections, were filed with the Court. The Court argued that “[b]ecause of the fundamental and indispensable role that the right of suffrage plays in the preservation and enjoyment of all other rights, it is protected in various international instruments.” It began by explaining that “[f]oremost of these instruments is the Universal Declaration of Human Rights” and quoted portions of Article 21 thereof. The Court also quoted portions of Article 25 of the ICCPR.
The Court further explained that “[t]o clarify the coverage and limitations of the rights guaranteed under Article 25 of the ICCPR, the United Nations Committee on Human Rights adopted General Comment No. 25.” After quoting the General Comment 25 (GC 25), the Court emphasized “that any conditions or restrictions to be imposed in the exercise of the rights protected by Article 25 should be based on ‘objective and reasonable criteria.’” It further explained that “the suspension or exclusion from the exercise thereof should be founded ‘only on grounds which are established by law and which are objective and reasonable.’” The Court further quoted from paragraphs 9 and 19 of GC 25. The use of GC 25 in making its arguments aligns with judicial decisions that make use of general comments without necessarily commenting on their binding or legal effects.
Re: Disturbing Social Media Posts of Lawyers/Law Professors. [A.M. No. 21-06-20-SC. 11 April 2023]
This is an administrative case before the Supreme Court resulting from Facebook posts by Attys. Antay, Jr., Tabujara III, Calderon, Nicanor, and Navarrete that allegedly violate the Code of Professional Responsibility (CPR). The posts may be perceived as discriminating against or disparaging any member of the Lesbian, Gay, Bisexual, Transsexual, Queer or Questioning, Intersex, Asexual, and more (LGBTQIA+) community.
The Court reiterated that “the Philippines adheres to the internationally-recognized principle of non-discrimination and equality.” It quoted from CBEAI v. Bangko Sentral ng Pilipinas, which stated that:
The principle of equality has long been recognized under international law. Article 1 of the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights. Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes basic principles in the protection of human rights.
Most, if not all, international human rights instruments include some prohibition on discrimination and/or provisions about equality. The general international provisions pertinent to discrimination and/or equality are the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of all Forms of Racial Discrimination (CERD); the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); and the Convention on the Rights of the Child (CRC).
In the broader international context, equality is also enshrined in regional instruments such as the American Convention on Human Rights; the African Charter on Human and People’s Rights; the European Convention on Human Rights; the European Social Charter of 1961 and revised Social Charter of 1996; and the European Union Charter of Rights (of particular importance to European states). Even the Council of the League of Arab States has adopted the Arab Charter on Human Rights in 1994, although it has yet to be ratified by the Member States of the League.
The equality provisions in these instruments do not merely function as traditional “first generation” rights, commonly viewed as concerned only with constraining rather than requiring State action. Article 26 of the ICCPR requires “guarantee[s]” of “equal and effective protection against discrimination” while Articles 1 and 14 of the American and European Conventions oblige States Parties “to ensure … the full and free exercise of [the rights guaranteed] … without any discrimination” and to “secure without discrimination” the enjoyment of the rights guaranteed. These provisions impose a measure of positive obligation on States Parties to take steps to eradicate discrimination. (emphasis in the original)
In the light of this, the Court held that “the principles of non-discrimination and equality are deeply embedded in the Philippine system of laws. As such, every member of the legal profession is bound to observe and abide by them, especially when dealing with LGBTQIA+ individuals.”
Anna May V. Baquirin, Mary Jane N. Real, Maria Lulu G. Reyes, Joan Dymphna G. Saniel, and Evalyn G. Ursua, Petitioners, Vs. Ronald M. Dela Rosa, In His Capacity as Director-General of the Philippine National Police, Jose Luis Martin C. Gascon, in His Capacity as Chairperson of the Commission on Human Rights, and Vitaliano Aguirre II, in His Capacity as the Secretary of the Department of Justice, Respondents. [G.R. No. 233930. 11 July 2023]
Petitioners came before the Court asking for the issuance of a writ of continuing mandamus to compel the respondents to perform their duties under the Constitution, pertinent laws, and treaties pertaining to violations of the right to life and investigation and prosecution thereof, and to report to the Court the measures they will be taking in carrying out such duties. The Court ruled against the petitioners.
In the course of discussing the petition, the Court noted the following treaties guaranteeing the right to life:
(a) the International Covenant on Civil and Political Rights (ICCPR),
(b) the Convention on the Rights of the Child (CRC), and
(c) the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW).
The Court stated that “[w]hile State parties, such as the Philippines, are bound to protect the right of every human being to life, they are allowed to do so in accordance with their national law and to the extent of their available resources.” It added:
In consideration thereof, State parties are essentially obligated to establish a system of accessible and effective remedies through judicial and administrative mechanisms, which ensure that: (a) any person whose rights are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; and(c) the competent authorities shall enforce such remedies when granted.
Thus, the Court held that “State parties to the ICCPR, CRC, and CMW are thus afforded a wide latitude in complying with their obligations thereunder, owing to their sovereignty.” Because of this, “the petitioners cannot impose on the respondents the standards and characteristics of investigation which they deem to be appropriate and sufficient through a Mandamus Petition, as it lies only to compel the performance of purely ministerial duties.”
International Agreements
International and Regional Organizations
Admission, Membership, and Participation in International Organizations
International Labour Organization Convention – No. 190 or the “Convention Concerning the Elimination of Violence and Harassment in the World of Work”
The International Labour Organization Convention No. 190 (ILO C190) or the “Convention Concerning the Elimination of Violence and Harassment in the World of Work” was signed and adopted by the International Labour Organization General Conference in Geneva, Switzerland on 21 June 2019. The President of the Philippines ratified the ILO C190 on 13 October 2023 and submitted it to the Senate for concurrence. On 11 December 2023, the Philippine Senate concurred in the ratification.
ILO C190 is the first common international framework that addresses violence and harassment in the world of work. It applies to all sectors, whether public or private, in urban or rural areas, both in the formal and informal economy. It protects workers and other persons in the world of work, including employees as defined by national law and practice, as well as persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, job seekers, and job applicants, and individuals exercising the authority, duties or responsibilities of an employer.
ILO C190 provides that parties shall respect, promote, and realize everyone’s right to a world of work free from violence and harassment. It further provides that
With a view to preventing and eliminating violence and harassment in the world of work, [parties] shall respect, promote and realize the fundamental principles and rights at work, namely freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation, as well as promote decent work.
It also provides that parties shall adopt laws, regulations, and policies ensuring the right to equality and non-discrimination in employment and occupation,
International Relations and Cooperation
Specific Bilateral Relations Issues
The Agreement on Social Security between the Government of the Republic of the Philippines and the Government of the Republic of Korea
The Agreement on Social Security Between the Government of the Republic of the Philippines and the Government of the Republic of Korea (Social Security Agreement) was signed on 25 November 2019 in Busan, Republic of Korea. The President of the Philippines ratified it on 20 February 2023 and submitted it to the Senate for concurrence. On 13 December2023, the Philippine Senate concurred in the ratification.
The objective of the Social Security Agreement is to promote mutual cooperation between the two countries in the field of social security. It applies to the National Pension Act of Korea and to the following legislations of the Philippines:
• Republic Act No. 11199, also known as the “Social Security Act of 2018”, as it relates to retirement, disability, and death benefits;
• Republic Act No. 8291, also known as the “Government Service Insurance Act of 1997”, as it relates to retirement, disability, death, and survivorship; and
• Republic Act No. 7699, also known as the “Portability Law” and, as it relates to totalizing creditable period of contributions under the Acts specified in Republic Act No. 11199 and Republic Act No. 8291
The Social Security Agreement provides for equality of treatment, entitling a covered person, including the person’s dependents and survivors, to social security benefits under the same conditions as nationals of the other State. It also provides for the export of benefits enabling covered persons to continue receiving their benefits wherever they decide to reside, totalization of insurance periods, and mutual administrative assistance.
International Economic Law
International and Regional Trade Treaties and Bodies
Regional Comprehensive Economic Partnership (RCEP)
The President of the Philippines ratified the Agreement on 28 November 2022 and submitted it to the Senate for concurrence in accordance with the Constitution. On 21 February 2023, by virtue of Senate Resolution No. 42 (SR 42), the Philippine Senate concurred in the ratification by the President of the RCEP. The Senate explained that “the Philippines needs to harness international trade agreements, such as the RCEP, as a way towards a sustainable and inclusive economy.”
The RCEP was virtually signed during the 4th RCEP Leader’s Summit on 15 November 2020. The signatories included Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, Vietnam, Australia, China, Japan, the Republic of Korea, and New Zealand.
As explained in SR 42, “the RCEP, currently the world’s largest trade and investment agreement, accounts for almost a third of the world’s gross domestic product (GDP), and a combined market that covers a third of the world’s population.” It further adds that “the Agreement builds upon existing economic linkages among the Parties to further broaden and deepen economic integration in the region, strengthen economic growth, promote equitable economic development, and establish clear and mutually advantageous rules to facilitate trade and investment, including participation in regional and global supply chains.” The objectives of the RCEP include:
a) establishing a modern, comprehensive, high-quality, and mutually beneficial economic partnership framework;
b) liberalize and facilitate trade in goods through the progressive elimination of tariff and. non-tariff barriers;
c) progressively liberalize trade in services to achieve substantial elimination of restrictions and discriminatory measures; and
d) create a liberal, facilitative, and competitive investment environment in the region.
The RCEP entered into force for the Philippines on 2 June 2023.
Implementing International Economic Law – Business, Sale, Contract, Tax, Competition Law
Agreement between the Government of the Republic of the Philippines and the Government of His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income
The Agreement between the Government of the Republic of the Philippines and the Government of His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (Philippines Brunei Tax Treaty) was signed on 16 July 2021 in Bandar Seri Begawan, Brunei Darussalam. The President of the Philippines ratified the Philippines Brunei Tax Treaty on 20 February 2023 and submitted it to the Senate for concurrence. By virtue of Senate Resolution No. 100 (SR 100) issued on 13 December 2023, the Philippine Senate concurred with the ratification.
The Philippines Brunei Tax Treaty applies to persons who are residents of one or both of the Contracting States and to taxes on income imposed on behalf of a Contracting State irrespective of how they are levied.
The objectives of the Philippines-Brunei Tax Treaty include:
a) strengthening the Philippines’ commitment to the Association of Southeast Asian Nations (ASEAN) Forum on Taxation;
b) mitigating the adverse effects of double taxation on the profits of business enterprises in cross-border transactions;
c) enhancing bilateral trade relations between the Philippines and Brunei Darussalam;
d) generating more employment for Filipinos in Brunei Darussalam;
e) encouraging investors to invest in both countries; and
f) promoting inbound transfer of technology and skills.
Legislation and Administrative Regulations
International Economic Law
Implementing International Economic Law
Republic Act No. 11967 – an Act Protecting Online Consumers and Merchants Engaged in Internet Transactions, Creating for This Purpose the Electronic Commerce Bureau, Appropriating Funds Therefor, and for Other Purposes
The law creates a regulatory framework for e-commerce in the Philippines, including foreign businesses operating online within its jurisdiction. The law to all “business-to-business and business-to-consumer internet transactions within the mandate of the Department of Trade and Industry … where one (1) of the parties is situated in the Philippines or where the digital platform, e-retailer, or online merchant is availing of the Philippine market and has minimum contacts therein.” However, online media content, and consumer-to-consumer (C2C) transactions” are not covered by the law.
The law has an extra-territorial application as foreign entities engaging in e-commerce and targeting the Philippine market are subject to Philippine laws, ensuring accountability regardless of legal presence in the country. Specifically, the law provides that “[a] person who engages in e-commerce, who avails of the Philippine market to the extent of establishing minimum contacts herein, shall be subject to applicable Philippine laws and regulations and cannot evade legal liability in the Philippines despite lack of legal presence in the country.”
It also provides for equal treatment of online and offline commercial activities. Specifically, it provides that “[u]nless otherwise specified, [the law] shall be construed to ensure that those who engage in e-commerce shall not enjoy any beneficial treatment that is more favorable, nor be placed at a disadvantage, in relation to other enterprises that offer goods and services offline in the Philippines.” Furthermore, the law mandates compliance with international standards on consumer protection, data privacy, and intellectual property rights. The law strengthens trust in online transactions, ensures accountability for digital platforms, and enhances the country’s integration into the global digital economy. The law was approved on 5 December 2023, and became effective on 18 December 2023.
International Environmental Law
Environmental Protection through Law/Regulation
Republic Act No. 11961 – an Act Strengthening the Conservation and Protection of Philippine Cultural Heritage through Cultural Mapping and an Enhanced Cultural Heritage Education Program, Amending for the Purpose Republic Act No. 10066, Otherwise Known as the “National Cultural Heritage Act of 2009”
This law amends Republic Act No. 10066, otherwise known as the “National Cultural Heritage Act of 2009,” and provides for the categorization, designation, and maintenance of cultural resources. It reinforces the Philippines’ commitment to cultural heritage conservation while aligning with international standards and agreements. Among others, it defines “ASEAN heritage parks,” which refers to “protected areas recognized by ASEAN to be of high conservation importance, preserving in total a complete spectrum of representative ecosystems of the ASEAN Region.”
The law was approved on 24 August 2023, and became effective on 26 September 2023.
Resolutions and Statements
Settlement of Disputes
Legal Solution of Disputes
Statement Delivered by H.E. Enrique A. Manalo, Secretary for Foreign Affairs the Republic of the Philippines during the 78th Session of the United Nations General Assembly High-Level Week 23 September 2023 “Solidarity for SDG s and a Just, Equitable and Rules-Based Order”
Secretary Manalo addressed the General Assembly on behalf of President Ferdinand R. Marcos Jr. In this Statement, the Secretary reiterated that “The UN spirit calls upon us to respond decisively to existential threats such as global warming, degrading ecosystems, diseases, and food insecurity, and to reclaim the power of dialogue and diplomacy as we manage new complexions of conflict and strategic competition.” The Statement also reaffirmed the belief that “The preservation of a rules-based global order is our collective responsibility” and that “The UN is underwritten by a rules-based order governed by international law and informed by the principles of equity and justice.”
Regarding settlement of disputes, the Statement confirms that the Philippines “advocate[s] the peaceful settlement of disputes, in accordance with international law.” It adds, “[t]his has always been our position with respect to the disputes in the West Philippine Sea, inasmuch as we are prepared to defend our sovereignty, sovereign rights and territorial integrity.” The Statement adds, “[w]e advocate the peaceful uses of outer space, the elaboration of the principle of due regard in the space domain and greater responsibility among states to reduce space threats, including debris from rocket launches.”
Associate Professor, University of the Philippines (UP) College of Law; Director, Institute of International Legal Studies, UP Law Center.