IV. CONCEPT OF STATE
1. State: Definition
2. Elements
Montevideo Convention
 Qualifications of a State as person of international law
In the so called Montevideo Convention, cited by the Supreme Court in the Province of North
Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain,
specifies the accepted criteria for the establishment of state, namely, a permanent population,
a defined territory, a government, and a capacity to enter relations with other states.
The Province of North Cotabato v. The Government of the Republic of
the Philippines Peace Panel on Ancestral Domain, GR No. 183591,
October 14, 2008, 568 SCRA 402
 What is the international legal concept of association
used to describe the relationship between the Central
Government and the BJE?
These considerations led the SC to describe the relationship of the Central
Government and the BJE under the MOA-AD as “associative, characterized by
shared authority and responsibility”, stressing that the in “international practice”,
the ‘associated state’ arrangement has usually been used as a transitional device
of former colonies on their way to full independence.
 Are there provisions in the MOA-AD said to be consistent
with the concept of association?
o
 Is the concept of association recognized under the
present Constitution?
The MOA-AD cannot be reconciled with the present Constitution and laws. The
very concept underlying them, the associative relationship envisioned between
the Government of the Philippines and the BJE, are unconstitutional for the
concept presupposes that the associated entity is a state and implies that the
same is on its way to independence.
Under the Memorandum of Agreement on the Ancestral Domain the
Bangsamoro Juridical Entity would have possessed the elements of a
state; Reasons.
o
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These elements were considered by the SC in declaring unconstitutional the proposed MOA-AD
between the Government of the Philippines and the MILF which would paved the way for the
conversion of the Bangsamoro Judicial Entity.
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The SC state that the BJE is not an expanded version of the ARMM but has a
relationship status that is entirely different from the ARMM.That BJE is a state in
all (but name) as it meets the criteria of a state laid down in the Montevideo
Convention.
Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the
people themselves through initiative, for the only way that the Executive can
ensure the outcome of the amendment process is through an undue influence or
interference with that process
People
- It simply refers to the inhabitants of the State. (Cruz, Philippine Political Law, 21) They must be
numerous enough to be self-sufficing and to defend themselves and small enough to be easily
administered and sustained.
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Territory
It is the fixed portion of the surface of the earth inhabited by the people of the
State.
It must be neither too bog as to be difficult to administer and defend nor too
small as to be unable to provide for the needs of the population.
Components of a Territory:
o Terrestrial Domain – the Land mass
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o Fluvial Domain – the internal waters; (such as rivers and lakes)
o Aerial Domain – the Air space above the land and the waters
o Maritime – Territorial Seas, external waters
National Archipelago
The national territory comprises the Philippine archipelago, with all the islands
and waters embraced therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of terrestrial, fluvial, and aerial domain,
including its territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breath and dimensions, form part of the internal
waters of the Philippines. (Article I, 1987 Constitution)
Archipelago Doctrine
The waters around, between, and connecting the islands of the archipelago,
regardless of their breath and dimensions, form part of the internal waters of the
Philippines. (second sentence, Art. I, 1987 Constitution)
- The entire archipelago is regarded as one integrated unit instead of being
fragmented into so many thousand islands.
o United Nations Convention of the Law of the Sea (UNCLOS III)
 Territorial Sea
Territorial Sea:
o Every State has the right to establish the breadth of its territorial sea up to a
limit not exceeding 12 nautical miles, measured from the baselines determined in
accordance with this Convention. (Article 3, Sec. 2, UNCLOS III)
o The sovereignty of a coastal State extends, beyond its land territory and
internal waters and, in the case of an archipelagic State, its archipelagic waters,
to an adjacent belt of sea, described as the territorial sea.
Contiguous Zone
The Contiguous Zone may not extend 24 nautical miles beyond from which the
breadth of the territorial sea is measured. (Art. 33, Sec. 2, UNCLOS III)
o The coastal State may exercise control necessary to:
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▪ Prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea;
▪ Punish infringement of the above laws and regulations committed within its territory or
territorial sea.
●Exclusive Economic Zone
o The Exclusive Economic Zone (EEZ) shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured. (Art. 57, UNCLOS III)
o The coastal State has:
▪ Sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the seabed and of
the seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and winds;
Republic Act No. 9522
 Magallona v. Ermita, G. R. No. 187167, 16 August 2011, 655
SCRA 476
MAGALLONA vs. ERMITA GR no. 187167, August 16, 2011
Baseline laws such as RA 9522 are enacted by UNCLOS III States parties to
mark-out specific based points along their coasts from which baselines are
drawn, either straight or contoured, to serve as geographic starting points to
measure the breadth of the maritime zones and continental shelf.
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS States
parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within which
States parties exercise treaty-based rights, namely, the exercise of sovereignty
over territorial waters.
o
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Government – the corporate governmental entity through which the functions of
the government are exercised throughout the Philippines, including, the various
arms through which political authority is made effective in the Philippines,
whether pertaining to autonomous regions, the provincial, city, municipal or
barangay subdivisions or other forms of local government.
o Functions
Constituent Function – constitute the very bonds of society and are therefore
compulsory.
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The keeping of order and providing for the protection of persons and property
from violence and robbery;
The fixing of the legal relations between husband and wife and between parents
and children;
The regulation of the holding, transmission and interchange of property, and the
determination of its liabilities for debt or for crime;
The determination of contractual rights between individuals;
The definition and punishment of crimes;
The administration of justice in civil cases;
The administration of political duties, privileges and relations of citizens; and
The dealings of the State with foreign powers; the preservation of the State from
external danger or encroachment and the advancement of its international
interests.
Ministrant Functions
Those undertaken to advance the interests of society, such as public works, public
charity, and regulation of trade and industry.
These functions are merely optional.
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 Bacani v. Nacoco, 100 PHIL. 471 (1955)
 PVTA v CIR, 65 SCRA 416
In PVTA vs. CIR (65 SCRA 416), the SC noted that the distinction between the
two function had become blurred because of the repudiation of the laissez faire
policy in the Constitution.
o Doctrine of Parens Patriae
- The government is tasked to be the guardian of the rights of the people who
may be disadvantaged or suffering from some disability or misfortune.
- In the case of PHILIPPINE ISLANDS vs. MONTE DE PIEDAD (35 Phil 728),
contributions were collected during the Spanish regime for the relief of the
victims of an earthquake but part of the money was never distributed and
instead deposited with the defendant bank (Monte de Piedad). An action for its
recovery was filed later by the Government of the Philippines, defendant bank
questioned the competent of the Government of the Philippines contending that
the suit could be instituted only by the intended beneficiaries themselves or by
their heirs. The SC rejected defendant bank’s contention and upheld the right of
the Government of the Philippines to file the case for the State as ‘parens
patriae’ in representation of the legitimate claimants.
 Cabañas vs. Pilapil, 58 SCRA 94
In the case of CABAÑ AS vs. PILAPIL (58 SCRA 94), the government of the
Philippines acting for the State as ‘parens patriae’ chose the mother of an
o De Jure Government
Has rightful title but no power or control, either because this has been withdrawn
from it, or because it has not yet actually entered into the exercise thereof.
De Facto Government - This is a government of fact, that is, it actually exercises power or control
but without legal title.
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 Kinds of De Facto Government
Kinds of De Facto Government:
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1. By Revolution, Insurrection, or Cessation:
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2. Against the Parents State:
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3. By Invasion:
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- The government that gets possession and control of, or usurps, by force or by
the voice of the majority, the rightful legal government and maintains itself
against the will of the latter, such as the government of England under the
Commonwealth, first by Parliamentary and later by Cromwell as Protector.
- That was established as an independent government by the inhabitants of a
country who rise in insurrection against the parent state, such as the
government of the Southern Confederacy in revolt against the Union during the
was of secession in the US.
- That which is established and maintained by military forces who invade and
occupy a territory of the enemy in the course of war, and which is denominated
as a government of paramount force, such as the cases of Castine in Maine,
which was reduced to a British possession in the 1812 War, and of Tampico,
Mexico, occupied during the war with Mexico by the troops of the US. (Co Kim
Chan vs. Valdez Tan Keh, 75 Phil. 113)
o Government of the Philippines
It is the corporate governmental entity through which the functions of
government are exercised throughout the Philippines, including, save as the
contrary appears from the context, the various arms though which political
authority is made effective in the Philippines, whether pertaining to the
autonomous regions, the provincial, city, municipal or barangay subdivisions or
other forms of local government. (Sec. 2(1), Administrative Code of 1987)
Government vs. Administration
This refers to any of the various units of the Government of the Republic of the Philippines,
including a department, bureau, office, instrumentality Government owned Controlled
Corporation (GOCC), or a local government or a distinct unit therein. (RA 10149, Sec. 3(k))
Government - The agency or instrumentality through which the will of the State is formulated,
expressed and realized. is more permanent
Administration - The group of persons in whose hands the reins of government are for the time
being. This is transitional.
Sovereignty - This refers to the supreme and uncontrollable power inherent in a State by which
that State is governed. (Garner, Political Science and Government)
o Kinds of Sovereignty
LEGAL SOVEREIGNTY
POLITICAL SOVEREIGNTY
The authority which has the power to The power behind the legal sovereignty, or the sum of
issue final commands.
the influences that operate upon it.
INTERNAL SOVEREIGNTY
EXTERNAL SOVEREIGNTY
The power of the State to control its
The power of the State to direct its relations with other
domestic affairs.
States (also known as Independence)
In our country, the Congress is the legal sovereign, while the different sectors that mold public
opinion make up the political sovereign. (Cruz (2014), Political Law, p.43)
o
Effects of a Belligerent Occupation on Laws of Occupied Territory
Effect of Belligerent Occupation:
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- Gen. Rule: No change in sovereignty. (Ruffy vs. Chief of Staff, 75 Phil. 875)
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- Exemption: However, political laws (except the law on treason) are
suspended (Laurel vs. Misa, supra); municipal laws remain in force unless
repealed by the belligerent occupant.
- At the end of the belligerent occupation, when the occupant is ousted from the
territory, the political laws which had been suspended during the occupation
shall automatically become effective again, under the doctrine of Jus
Postliminium.
o
 Ruffy vs Chief of Staff, 75 Phil. 975
 Laurel vs. Misa, 76 Phil. 372
o Effects of Change of Sovereignty
The Political Laws of the former sovereign are abrogated.
Non-political law continue in operation, for the reason also that they regulate
private relations only, unless they are changed by the new sovereign or are
contrary to its institutions.
o
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Act of State
An act of State is an act done by the sovereign power of a country, or by its delegate, within the
limits of the power vested in him.
V. DOCTRINE OF STATE IMMUNITY
1. Basis
“The State may not be sued without its consent”
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Article XVI, Section 3, Constitution
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Justification for the Doctrine
o
The doctrine of non-suability is based on the fact that there can be no
legal right against the authority which makes the law on which the right
depends. (J. Holmes; Republic vs. Villasor, 54 SCRA 83).
o - The demands and inconvenience of litigation will divert the time and
resources of the State from the more pressing matters demanding its
attention, to the prejudice of the public welfare. (Cruz (2014) Political
Law, p. 48)
2. Immunity of Foreign States
 Constitutional basis (Article II, Sec. 2)
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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 and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations. (Art. II, Sec. 2)
Principle of par in parem non habet imperium
Equals have no sovereignty over each other”. A sovereign state cannot exercise jurisdiction over
another sovereign state.
-However, this does not mean that foreign state would at all times be immune from suits filed
against it before courts of a host or local state.
Process of Suggestion
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.
(Holy See vs. Rosario, supra)
- 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 and, thereafter, the Philippine Foreign
Office conveys its endorsement to the court either by:
o Just sending a letter directly (International Catholic Migration vs. Calleja, 190 SCRA 130);
o Sending a telegram to that effect (WHO vs. Aquino, 48 SCRA 242);
o When a foreign state asked the Secretary of Foreign Affairs to request the Solicitor General to make a
“suggestion” to the judge. (Baer vs. Tizon, 57 SCRA 1)
CLASSICAL or ABSOLUTE THEORY
NEWER or RESTRICTIVE THEORY
A sovereign cannot, without its consent, be
made a respondent in the courts of another
sovereign.
The immunity of the sovereign is recognized only with regard to
public acts (jure imperii) of a state, but not with regard to private
acts (jure gestionis).
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The Holy See v. Judge Rosario, Jr. (238 SCRA 524 [Dec. 1, 1994])
Determination of Immunity by the Department of Foreign Affairs
The DFA’s determination that a certain person is covered by immunity is only preliminary which has no
binding effect in courts. (Liang vs. People, GR no. 125865, January 28, 2000)
3. Immunity of State’s Diplomatic Agents
- This refers to the head of the mission or a member of the diplomatic staff of the mission. (Art. 1, Sec. e,
Vienna Convention on Diplomatic Relations)
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Vienna Convention on Diplomatic Relations (April 18, 1961)
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The premises of the mission shall be inviolable. The agents of the receiving State may not enter
them, except with the consent of the head of the mission.
The receiving State is under a special duty to take all appropriate steps to protect the premises of
the mission against any intrusion or damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity.
The premises of the mission, their furnishings and other property thereon and the means of
transport of the mission shall be immune from search, requisition, attachment or execution.
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4. Immunity of the United Nations (UN), its Specialized Agencies and other
International Organizations
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The United Nations, as well as its organs and specialized agencies, are likewise beyond the
jurisdiction of local courts. (Convention on Privileges and Immunities of the United Nations;
Convention on Privileges and Immunities of Specialized Agencies of the United Nations)
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Rationale for the grant of immunity
SEAFDEC v. NLRC (241 SCRA 580 [Feb. 14, 1992])
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German Agency for Technical Cooperation v. CA, G.R. # 152318, 16 April 2009
Permanent international commissions and administrative bodies have been created by the
agreement of a considerable number of States for a variety of international purposes, economic
or social and mainly non-political. In so far as they are autonomous and beyond the control of any
one State, they have a distinct juridical personality independent of the municipal law of the State
where they are situated. As such, they must be deemed to possess a species of international
personality of their own. (SEAFDEC vs. NLRC, 241 SCRA 580)
5. Waiver of Immunity
As a general rule, The State may not be sued:
Exception: If the State consent to be sued.
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Forms of Consent
Express Consent:
- When a law expressly provides that the State be sued.
- This is manifested either by a general law or special law.
- The express consent of the State to be sued must be embodied in a duly enacted statute and
may not be given by a mere counsel of the government. (Republic vs. Purisima, 78 SCRA 470)
I. General Law:
- Act no. 3083, declaring that “the Government of the Philippine Islands hereby consents and
submits to be sued upon any money claims involving liability arising from contracts, express or
implied, which could be serve as a basis of civil action between private parties.
CA 327, as amnded by PD 1445
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- Under CA no. 327 (as amended by PD no. 1445), a claim against the government must first be
filed with the Commission on Audit (COA) within 60 days. Rejection of the claim will authorize
the claimant to elevate the matter to the Supreme Court on Certiorari and in effect sue the State
with its consents. (PD no. 1445, Secs. 49-50)
DA v. NLRC, 277 SCRA 693
(GR no. 104269, November 11, 1993)
The States’ consent may be given expressly or impliedly. Express consent may be made through a general law or a special law. In
this jurisdiction, the general law waiving the immunity of the state from suit is found in Act no. 3083, where the Philippine
Government “consents and submits to be sued upon any money claims involving liability arising from contract, express or implied,
which could serve as a basis of civil action between private parties.
The claims of private respondents (underpayment of wages, overtime pay, and similar items) arising from the Contract of Service
clearly constitute money claims. Act no. 3082 gives the consent of the State to be sued upon any moneyed claim involving liability
from contract, express or implied. However, pursuant to CA no. 327 (as amended by PD 1445), the money claim first be brought to
the Commission on Audit.
Exception:
Amigable v. Cuenca, 43 SCRA 360 [1972]
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Exception to the Requirement that “Money claims must first be brought to the Commission
on Audit” (Under CA 327, as amended by PD 1445):
- In the case of Amigable vs. Cuenca (GR L-26400, February 29, 1972), where the question raised
was the right of the plaintiff Amigable to sue the government for recovery of the value of her
property which had been converted into public streets without payment to her of just
compensation. Although it was shown that she had not previously filed her claim with the
Auditor General as normally required The SC decided in her favor.
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Article 2180, Civil Code of the Phil.
Special Law
II. Special Law:
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When the Philippine Legislature enacted a law authorizing an individual to sue the Philippine Government
for injuries he had sustained. (Merrit vs. Government of the Philippines, 34 Phil. 311)
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- This special express consent must be embodied in in a duly enacted statute and may not be
given by a mere counsel of the government. (Republic vs. Purisima, supra.)
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o
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 Meritt v. Gov’t. of the Phil. Islands, 34 PHIL. 311
Implied Consent
This is given when the State itself commences litigation or when it enters into a contract.
I. When the State Enters into a Contract:
- A State may be said to have descended to the level of an individual and can thus be deemed to have
tacitly given its consent to be sued only when it enters into business contracts. (USA vs. Ruiz, 136 SCRA
487)
- Gen. Rule: There is implied consent when the State Enters into a Contract.
- Exception: When the State enters into a contract in Jure Imperii (sovereign acts), there is not implied
consent, and the State enjoys immunity.
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USA v. Ruiz, 136 SCRA 487
USA vs. RUIZ
GR. L-35645, May 22, 1985)
The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs.
It does not apply where the contract relates to the exercise of its sovereign functions. In this case, the projects
are an integral part of the naval base which is devoted to the defense of both the US and the Philippines,
indisputably a function of the government of the highest order; they are not utilized for nor dedicated to
commercial or business purposes.
Restrictive theory of state immunity
- State immunity now extends only to acts jure imperii. (USA vs. Ruiz, GR, L-35645, May 22, 1985)
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o Jure Imprerii v. Jure Gestionis
o
 USA v. Judge Guinto, G.R. No. 76607, Februry 26, 1990.
 Republic v. Sandiganbayan, 204 SCRA 212
o Expropriation without payment of just
compensation; immunity not valid defense
When the State Commences Litigation
 Froilan v. Pan Oriental Shipping, G.R. # L-6060, 30 Sept.
1950
 Lim v. Brownell, 107 SCRA 345
6. Suits against Public Officers
 Sanders v. Veridiano , 162 SCRA 88
 Republic v. Sandoval, 220 SCRA 124
 Festejo v. Fernando, 94 Phil. 504
7. Suits Against Government Agencies
 Incorporated Agency
o Consult charter
o Rayo v. CFI of Bulacan, 110 SCRA 460 [1981]
 Unincoporated Agency
o If Principal Function is Governmental
 Veterans Manpower & Protective Services, Inc. v CA, 214 SCRA
286
 Mobil Phils. Exploration vs Customs Arrastre Service, 18 SCRA
1120
 Bureau of Printing v. Bureau of Printing Employees Asso., 1
SCRA 340
o If Principal Function is Proprietary
 ATO v. Spouses Ramos, G.R. # 159402, 23 February 2011
 Municipal Corporations
o Charters of municipal corporations grant them the competence
to sue and be sued.
 Municipality of San Fernando, La Union v. Judge Firme, 195
SCRA 692
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Municipality of San Miguel, Bulacan v. Fernandez, 130 SCRA 56
[1984])
The City of Bacolod vs. Mayor Leonardia, et al. G.R. No. 190289,
January 17, 2018.
8. Liability
 When is the State liable?
o Meritt v. Gov’t. of the Phil. Islands, 34 PHIL. 311
 When can a public officer be held liable?
o Festejo v. Fernando, 94 Phil. 504
 When is a municipal corporation liable?
o Municipality of San Fernando, La Union v. Judge Firme, 195 SCRA 692
(1991)
o Palafox v. Province of Ilocos Norte, G. R. No. L-10659, January 31, 1958
9. Consent to be Sued does not Include Consent to Execution
 Republic v. Villasor, 54 SCRA 84
 Department of Agriculture v. NLRC, 277 SCRA 693 [1993]
 PNB v. Pabalan, 130 SCRA 206
 Municipality of Makati v. CA, 190 SCRA 206 [1990]
 UP v. Dizon, G.R. No. 171182, August 23, 2012, 679 SCRA 54.
 GSIS V. Group Management Corporation, G.R. No. 167000, June 8, 2011, 651
SCRA 279