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Qatar vs Bahrain* Treaties. While treaties are generally in written form, there are writers who hold that even an oral agreement can be binding. However, only written agreements that are new come under the provisions of the Vienna Convention. No particular form is prescribed. Facts: On 8 July 1991 Qatar filed in the Registry of the Court an Application instituting proceedings against Bahrain in respect of certain disputes between the two States relating to "sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime areas of the two States". Qatar contended that the Court had jurisdiction to entertain the dispute by virtue of two "agreements" concluded between the Parties in December1987 and December1990 respectively, the subject and scope of the commitment to the Court's jurisdiction being determined, according to the Applicant, by a formula proposed by Bahrain to Qatar on 26October1988 and accepted by Qatar in December1990 (hereinafter referred to as the "Bahraini formula"). By letters of 14July and 18August1991, Bahrain contested the basis of jurisdiction invoked by Qatar. By a Judgment of 1July 1994, the Court found that the exchanges of letters between the King of Saudi Arabia and the Amir of Qatar of 19and 21December1987, and between the King of Saudi Arabia and the Amir of Bahrain of 19and 26December1987, and the document headed "Minutes" and signed at Doha on 25December1990 by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia, were international agreements creating rights and obligations for the Parties; and that, by the terms of those agreements, the Parties had undertaken to submit to the Court the whole of the dispute between them, as circumscribed by the Bahraini formula. The Court decided to afford the Parties the opportunity to submit to it the whole of the dispute. After each of the Parties had filed a document on the question within the time-limit fixed, the Court, by a Judgment of 15February1995, found that it had jurisdiction to adjudicate upon the dispute between Qatar and Bahrain which had been submitted to it; that it was now seised of the whole of the dispute; and that the Application of the State of Qatar as formulated on 30November1994 was admissible. In the course of the written proceedings on the merits, Bahrain challenged the authenticity of 82documents produced by Qatar as annexed to its pleadings. Arguments: On the part of the Bahrains (D) Foreign Minister, he argued that no agreement existed because he never intended to enter an agreement fails on the grounds that he signed documents creating rights and obligations for his country. Also, Qatars (P) delay in applying to the United Nations Secretariat does not indicate that Qatar (P) never considered the Minutes to be an international agreement as Bahrain (D) argued. However, the registration and non-registration with the Secretariat does not have any effect on the validity of the agreement.Issue: Whether or not an international agreement creating rights and obligations can be constituted by the signatories to the minutes of meetings and letters exchanged.Held: Yes. An international agreement creating rights and obligations can be constituted by the signatories to the minutes of meetings and letters exchanged. Though Bahrain (D) argued that the Minutes were only a record of negotiation and could not serve as a basis for the I.C.J.s jurisdiction, both parties agreed that the letters constituted an international agreement with binding force. International agreements do not take a single form under the Vienna Convention on the Law of Treaties, and the Court has enforced this rule in the past. In this case, the Minutes not only contain the record of the meetings between the parties, it also contained the reaffirmation of obligations previously agreed to and agreement to allow the King of Saudi Arabia to try to find a solution to the dispute during a six-month period, and indicated the possibility of the involvement of the I.C.J. The Minutes stipulated commitments to which the parties agreed, thereby creating rights and obligations in international law. This is the basis therefore of the existence of international agreement.Additional information: There is no doubt that language plays a vital role in influencing a courts decision as to whether an agreement has been entered into and in this particular case, the language was the main focus of the I.C.J and it was the contents of the Minutes that persuaded the I.C.J. to reject the Bahrain foreign ministers claim that he did not intend to enter into an agreement. Where this is compared to general U.S. contract law, where a claim by one of the parties that no contract existed because there was no meeting of the minds might be the ground upon which a U.S. court would consider whether a contract did exist with more care and thought than the I.C.J. gave the foreign minister of Bahrains claims.

BORIS MEJOFF, petitioner, vs. DIRECTOR OF PRISONS, respondent.*Stateless persons are those who do not have a nationality (de facto or de jure statless). De Jure stateless are those who have lost their nationality while de Facto stateless are those who have nationality but to whom protection is denied by their state when out of the state. The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation he was arrested as a Japanese spy, by U. S. Army Counter Intelligence Corps. Later he was handed to the Commonwealth Government for disposition in accordance with Commonwealth Act No. 682. Thereafter the People's Court ordered his release. But the deportation board taking his case up, found that having no travel documents Mejoff was illegally in this country, and consequently referred the matter to the immigration authorities. After the corresponding investigation, the Board of Commissioners of Immigration on April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without inspection and admission by the immigration officials at a designated port of entry and, therefore, it ordered that he be deported on the first available transportation to Russia. The petitioner was then under custody, he having been arrested on March 18, 1948. In May, 1948, he was transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some Russian vessels. In July and in August of that year two boats of Russian nationality called at the Cebu Port. But their masters refused to take petitioner and his companions alleging lack of authority to do so. In October, 1948, after repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner of Immigration believes it is for the best interest of the country to keep him under detention while arrangements for his deportation are being made.For the Petitioner: 1) that having been brought to the Philippines legally by the Japanese forces, he may not now be deported. It is enough to say that the argument would deny to this Government the power and the authority to eject from the Islands any and all of those members of the Nipponese Army of occupation who may still be found hiding in remote places. 2) he may not be deported because the statutory period to do that under the laws has long expired. The proposition has no basis. Under section 37 of the Philippine Immigration Act of 1940 any alien who enters this country "without inspection and admission by the immigration authorities at a designated point of entry" is subject to deportation within five years. In a recent decision of a similar litigation (Borovsky vs. Commissioner of Immigration) we denied the request for habeas corpus, saying: "It must be admitted that temporary detention is a necessary step in the process of exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation, the Government has the right to hold the undesirable alien under confinement for a reasonable length of time. However, under established precedents, too long a detention may justify the issuance of a writ of habeas corpus."The meaning of "reasonable time" depends upon the circumstances, specially the difficulties of obtaining a passport, the availability of transportation, the diplomatic arrangements concerned and the efforts displayed to send the deportee away. Considering that this Government desires to expel the alien, and does not relish keeping him at the people's expense, we must presume it is making efforts to carry out the decree of exclusion by the highest officer of the land. On top of this presumption assurances were made during the oral argument that the Government is really trying to expedite the expulsion of this petitioner. On the other hand, the record fails to show how long he has been under confinement since the last time he was apprehended. Neither does he indicate neglected opportunities to send him abroad. And unless it is shown that the deportee is being indefinitely imprisoned under the pretence of awaiting a chance for deportation or unless the Government admits that it cannot deport him or unless the detainee is being held for too long a period our courts will not interfere."In the United States there were at least two instances in which courts fixed a time limit within which the imprisoned aliens should be deported otherwise their release would be ordered by writ of habeas corpus. Nevertheless, supposing such precedents apply in this jurisdiction, still we have no sufficient data fairly to fix a definite deadline."The difference between this and the Borovsky case lies in the fact that the record shows this petitioner has been detained since March, 1948. However, considering that in the United States (where transportation facilities are much greater and diplomatic arrangements are easier to make) a delay of twenty months in carrying out an order of deportation has not been held sufficient to justify the issuance of the writ of habeas corpus, this petition must be, and it is hereby denied. PERFECTO, J., dissenting:To continue keeping petitioner under confinement is a thing that shocks conscience. Under the circumstances, petitioner is entitled to be released from confinement. He has not been convicted for any offense for which he may be imprisoned. Government's inability to deport him no pretext to keep him imprisoned for an indefinite length of time. The constitutional guarantee that no person shall be deprived of liberty without due process of law has been intended to protect all inhabitants or residents who may happen to be under the shadows of Philippine flag.Our vote is the same as one we cast when the case of Borovsky vs. Commissioner of Immigration, L-2852, was submitted for decision although, for some misunderstanding, our vote was overlooked at the time of the decision was promulgated. Our vote is to grant the petition and to order the immediate release of petitioner, without prejudice for the government to deport him as soon as the government could have the means to do so. In the meantime, petitioner is entitled to live a normal life in a peaceful country, ruled by the principles of law and justice.

Goldwater vs Carter*Topic: Authority to terminate. While the Vienna Convention enumerates those who have the capacity to enter into treaties, it does not say who may terminate a treaty. Logically, however, the authority to terminate should also belong to the one who has the authority to enter into the treaty. (Question: Can the President unilaterally terminate a treaty? Goldwater vs Carter discussed this question relative to Pres. Carters termination of the defense treaty with Taiwan. No decision was reached except to say that the matter was not yet ripe for judicial review.Facts: President Carter terminated a defense treaty with Taiwan. Neither the Senate nor the House have taken action to prevent or contest the action. Several members brought this claim alleging the President has deprived them of their Constitutional role. In the present posture of this case, we do not know whether there ever will be an actual confrontation between the Legislative and Executive Branches. Although the Senate has considered a resolution declaring that Senate approval is necessary for the termination of any mutual defense treaty, no final vote has been taken on the resolution. Arguments: P) The Constitution makes specific mention that the President needs the approval and consent of the Senate to make a treaty, therefor the contra positive is true: President cannot terminate a treaty without approval and consent of the Senate. If so, a constitutional case and controversy are ripened for decision. Whether the decision making authority is Constitutionally valid is a determination left to the courts.Def) The issue is a political question where the PL is asking the court to issue an advisory opinion on whether the President can or cannot terminate a treaty.Issue: Whether the President, in terminating at treaty with another country, needs the approval of Congress, and if so does it involve a political question?Held: The judgment is vacated and the case remanded to the court for dismissal.Rule: The President is authorized to make treaties with the advice and consent of the Senate. Treaties shall be a part of the supreme law of the land.Court has recognized that an issue should not be decided if it is not ripe for judicial review. Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political rather than legal considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflictCourt Rationale: If Congress had challenged the Presidents authority to terminate, then the court would have justiciable issue to decide. Without a challenge the issue only involves a political question. Neither the Senate nor the House have taken any action, thereby rendering the case unripe for decision. There is no specific language preventing the President from terminating treaties without approval. There is no showing that Congress has rejected the Presidents claim. It is Congress choice to challenge the President not the Courts.Where the Constitution is silent this case is controlled by political standards. Congress has terminated treaties without Presidential approval.

Department of Foreign Affairs vs. NLRC (G.R. No. 113191)* Immunities. Because they are international personality, they can also be given the immunities and privileges of international persons. Their immunities, however, have for basis not sovereignty, as it is for states, but the need for the effective exercise of their function.Facts: On 27 January 1993, private respondent Magnayi filed an illegal dismissal case against ADB and the latters violation of the labor only contracting law. Two summonses were served, one sent directly to the ADB and the other through the Department of Foreign Affairs ("DFA"). ADB and the DFA notified respondent Labor Arbiter that the ADB, as well as its President and Officers, were covered by an immunity from legal process except for borrowings, guaranties or the sale of securities pursuant to Article 50(1) and Article 55 of the Agreement Establishing the Asian Development Bank (the "Charter") in relation to Section 5 and Section 44 of the Agreement Between The Bank And The Government Of The Philippines Regarding The Bank's Headquarters (the "Headquarters Agreement"). The Labor Arbiter took cognizance of the complaint on the impression that the ADB had waived its diplomatic immunity from suit and, in time, rendered a decision in favour Magnayi. The ADB did not appeal the decision. Instead, on 03 November 1993, the DFA referred the matter to the NLRC; in its referral, the DFA sought a "formal vacation of the void judgment." When DFA failed to obtain a favorable decision from the NLRC, it filed a petition for certiorari. Issues: 1) Whether or not ADB is immune from suitNo. Under the Charter and Headquarters Agreement (Art. 50(1) and Section 5 respectively), the ADB enjoys immunity from legalprocess of every form, except in the specified cases of borrowing and guarantee operations, as well as the purchase, sale and underwriting of securities. The Banks officers, on their part, enjoy immunity in respect of all acts performed by them in theirofficial capacity. The Charter and the Headquarters Agreement granting these immunities and privileges are treaty covenants and commitments voluntarily assumed by the Philippine government which must be respected. Being an international organization that has been extended a diplomatic status, the ADB is independent of the municipal law. One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from the legal writs and processes issued by the tribunals of the country where it is found. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may interfere in their operations or even influence or control its policies and decisions of the organization; besides, such subjection to local jurisdiction would impair the capacity ofsuch body to discharge its responsibilities impartially on behalf of its member-states."2) Whether or not by entering into service contracts with different private companies, ADB has descended to the level of an ordinary party to a commercial transaction giving rise to a waiver of its immunity from suit.No. The ADB didn't descend to the level of an ordinary party to a commercial transaction, which should have constituted a waiver of its immunity from suit, by entering into service contracts with different private companies. There are two conflicting concepts of sovereign immunity, each widely held and firmly established.According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the Courts of another sovereign.According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or actsjure imperiiof a state, but not with regard to private act or actsjure gestionis.Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test.Such an act can only be the start of the inquiry.The logical question is whether the foreign state is engaged in the activity in the regular course of business.If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature.If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an actjure imperii, especially when it is not undertaken for gain or profit.The service contracts referred to by private respondent have not been intended by the ADB for profit or gain but are official acts over which a waiver of immunity would not attach.3) Whether or not the DFA has the legal standing to file the present petitionYes. The DFA's function includes, among its other mandates, the determination of persons and institutions covered by diplomatic immunities, a determination which, when challenged, entitles it to seek relief from the court so as not to seriously impair the conduct of the country's foreign relations.The DFA must be allowed to plead its case whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before the international community.When international agreements are concluded, the parties thereto are deemed to have likewise accepted the responsibility of seeing to it that their agreements are duly regarded.In our country, this task falls principally on the DFA as being the highest executive department with the competence and authority to so act in this aspect of the international arena.In Holy See vs. Hon. Rosario, Jr.,this Court has explained the matter in good detail;viz:In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. In the United States, the procedure followed is the process of 'suggestion,' where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity.If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a 'suggestion' that the defendant is entitled to immunity.In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity.But how the Philippine Foreign Office conveys its endorsement to the courts varies.In International Catholic Migration Commission vs. Calleja, the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity.In World Health Organization vs. Aquino, the Secretary of Foreign Affairs sent the trial court a telegram to that effect.In Baer vs. Tizon, the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, inbehalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a 'suggestion' to respondent Judge.The Solicitor General embodied the 'suggestion' in a manifestation and memorandum asamicus curiae.In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner.The Court allowed the said Department to file its memorandum in support of petitioner's claim of sovereign immunity. In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels.In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved.