Bayan Muna v. Romulo

8/10/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 641 8/10/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 641
(1994). In cases of transcendental importance, we wrote

again in Bayan v. Zamora, 342 SCRA 449 (2000). “The
Court may relax the standing requirements and allow a suit
to prosper even where there is no direct injury to the party
claiming the right of judicial review.”
Constitutional Law; Executive Department; Executive
244 SUPREME COURT REPORTS ANNOTATED Agreements; Words and Phrases; The terms “exchange of
notes” and “executive agreements” have been used
Bayan Muna vs. Romulo
interchangeably, exchange of notes being considered a form
of executive agreement that becomes binding through
G.R. No. 159618. February 1, 2011.* executive action.—In another perspective, the terms
“exchange of notes” and “executive agreements” have been
BAYAN MUNA, as represented by Rep. SATUR
used inter-
OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA
L. MAZA, petitioner, vs. ALBERTO ROMULO, in his
capacity as Executive Secretary, and BLAS F. OPLE, _______________
in his capacity as Secretary of Foreign Affairs,
* EN BANC.
respondents.
245
Actions; Procedural Rules and Technicalities; Locus
Standi; Locus standi is a right of appearance in a court of
VOL. 641, FEBRUARY 1, 2011 245
justice on a given question.—Locus standi is “a right of
appearance in a court of justice on a given question.” Bayan Muna vs. Romulo
Specifically, it is “a party’s personal and substantial
interest in a case where he has sustained or will sustain
changeably, exchange of notes being considered a form
direct injury as a result” of the act being challenged, and
of executive agreement that becomes binding through
“calls for more than just a generalized grievance.” The term
executive action. On the other hand, executive agreements
“interest” refers to material interest, as distinguished from
concluded by the President “sometimes take the form of
one that is merely incidental.
exchange of notes and at other times that of more formal
Same; Same; Same; In cases of transcendental documents denominated ‘agreements’ or ‘protocols.’ ”
importance, the Court may relax the standing requirements
Same; Same; Same; There are no hard and fast rules on
and allow a suit to prosper even where there is no direct
the propriety of entering, on a given subject, into a treaty or
injury to the party claiming the right of judicial review.—At
an executive agreement as an instrument of international
any event, the primordial importance to Filipino citizens in
relations.—There are no hard and fast rules on the
general of the issue at hand impels the Court to brush aside
propriety of entering, on a given subject, into a treaty or an
the procedural barrier posed by the traditional requirement
executive agreement as an instrument of international
of locus standi, as we have done in a long line of earlier
relations. The primary consideration in the choice of the
cases, notably in the old but oft-cited emergency powers
form of agreement is the parties’ intent and desire to craft
cases and Kilosbayan v. Guingona, Jr., 232 SCRA 110
https://central.com.ph/sfsreader/session/0000017b3020be9c671c7ec8000d00d40059004a/t/?o=False 1/112 https://central.com.ph/sfsreader/session/0000017b3020be9c671c7ec8000d00d40059004a/t/?o=False 2/112
an international agreement in the form they so wish to as explained above, it is always the responsibility and
further their respective interests. within the prerogative of the RP either to prosecute
Same; Same; Same; RP-US Non-Surrender Agreement; criminal offenses equally covered by the Rome Statute or to
An executive agreement that does not require the concurrence accede to the jurisdiction of the ICC. Thus, the Philippines
of the Senate for its ratification may not be used to amend a may decide to try “persons” of the US, as the term is
treaty that, under the Constitution, is the product of the understood in the Agreement, under our national criminal
ratifying acts of the Executive and the Senate.—Petitioner’s justice system. Or it may opt not to exercise its criminal
reliance on Adolfo is misplaced, said case being inapplicable jurisdiction over its erring citizens or over US “persons”
owing to different factual milieus. There, the Court held committing high crimes in the country and defer to the
that an executive agreement cannot be used to amend a secondary criminal jurisdiction of the ICC over them.
duly ratified and existing treaty, i.e., the Bases Treaty. Same; Same; Same; Same; International Law; One
Indeed, an executive agreement that does not require the State can agree to waive jurisdiction to subjects of another
concurrence of the Senate for its ratification may not be State due to the recognition of the principle of
used to amend a treaty that, under the Constitution, is the extraterritorial immunity.—In the context of the
product of the ratifying acts of the Executive and the Constitution, there can be no serious objection to the
Senate. The presence of a treaty, purportedly being subject Philippines agreeing to undertake the things set forth in
to amendment by an executive agreement, does not obtain the Agreement. Surely, one State can agree to waive
under the premises. Considering the above discussion, the jurisdiction—to the extent agreed upon—to subjects of
Court need not belabor at length the third main issue another State due to the recognition of the principle of
raised, referring to the validity and effectivity of the extraterritorial immunity.
Agreement without the concurrence by at least two-thirds
of all the members of the Senate. The Court has, in Eastern Same; Same; Same; Same; Same; What the Agreement
Sea Trading, as reiterated in Bayan, given recognition to contextually prohibits is the surrender by either party of
the obligatory effect of executive agreements without the individuals to international tribunals, without the consent
concurrence of the Senate. of the other party, which may desire to prosecute the crime
under its existing laws.—Persons who may have committed
Same; Same; Same; Same; The RP-US Non-Surrender
acts penalized under the Rome Statute can be prosecuted
Agreement is but a form of affirmance and confirmance of
and punished in the Philippines or in the US; or with the
the Philippines’ national criminal jurisdiction.—As it were,
consent of the RP or the US, before the ICC, assuming, for
the Agreement is but a form of affirmance and confirmance
the nonce, that all the formalities necessary to bind both
of the Philippines’ national criminal jurisdiction. National
countries to the Rome Statute have been met. For
criminal jurisdiction being primary,
perspective, what the Agreement contextually prohibits is
246 the surrender by either party of individuals to international
tribunals, like the ICC, without the consent of the other
party, which may desire to prosecute the crime under its
246 SUPREME COURT REPORTS ANNOTATED existing laws. With the view we take of things, there is
nothing immoral or violative of international law concepts
in the act of the Philippines of assuming criminal
jurisdiction pursuant to the non-surrender agreement over

an offense considered criminal by both Philippine laws and afforded great respect. The power to enter into executive
the Rome Statute. agreements has long been recognized to be lodged with the
Same; Same; Same; Same; In agreeing to conclude President. x x x The rationale behind this principle is the
the Agreement, then President Gloria Macapagal-Arroyo, inviolable doctrine of separation of powers among the
represented by the Secretary of Foreign Affairs, acted within legislative, executive and judicial branches of the
the scope of the authority and discretion vested in her by the government. Thus, absent any clear contravention of the
Constitution.—In thus agreeing to conclude the Agreement law, courts should exercise utmost caution in declaring any
thru E/N BFO-028-03, then executive agreement invalid. In light of the above
consideration, the position or view that the challenged RP-
247 US Non-Surrender Agreement ought to be in the form of a
treaty, to be effective, has to be rejected.
VOL. 641, FEBRUARY 1, 2011 247 CARPIO, J., Dissenting Opinion:

Constitutional Law; Executive Agreements; RP-US Non-
Surrender Agreement; View that the RP-US Non-Surrender
Agreement (Agreement) violates existing municipal laws on
President Gloria Macapagal-Arroyo, represented by the the Philippine State’s obligation to prosecute persons
Secretary of Foreign Affairs, acted within the scope of the responsible for any of the international crimes of genocide,
authority and discretion vested in her by the Constitution. war crimes and other crimes against humanity.—The RP-
At the end of the day, the President––by ratifying, thru her US Non-Surrender Agreement (Agreement) violates
deputies, the non-surrender agreement––did nothing more existing municipal laws on the Philippine State’s obligation
than discharge a constitutional duty and exercise a
prerogative that pertains to her office. 248
Same; Same; Same; Same; Philippine Act on Crimes

against International Humanitarian Law, Genocide, and 248 SUPREME COURT REPORTS ANNOTATED
Other Crimes against Humanity (Republic Act No. 9851);
Nowhere in RA 9851 is there a proviso that goes against the Bayan Muna vs. Romulo
tenor of the Agreement.—RA 9851 clearly: (1) defines and
establishes the crimes against international humanitarian to prosecute persons responsible for any of the
law, genocide and other crimes against humanity; (2) international crimes of genocide, war crimes and other
provides penal sanctions and criminal liability for their crimes against humanity. Being a mere executive
commission; and (3) establishes special courts for the agreement that is indisputably inferior to municipal law,
prosecution of these crimes and for the State to exercise the Agreement cannot prevail over a prior or subsequent
primary criminal jurisdiction. Nowhere in RA 9851 is there municipal law inconsistent with it.
a proviso that goes against the tenor of the Agreement.
Same; Same; Same; Philippine Act on Crimes against
Same; Same; Same; Same; The power to enter into International Humanitarian Law, Genocide, and Other
executive agreements has long been recognized to be lodged Crimes against Humanity (Republic Act No. 9851); View
with the President.—More importantly, an act of the that Republic Act No. 9851 requires that the RP-US Non-
executive branch with a foreign government must be Surrender Agreement should be ratified as a treaty by the

Senate before the Agreement can take effect.—Republic Act This petition1 for certiorari, mandamus and
No. 9851 (RA 9851) or the Philippine Act on Crimes Against prohibition under Rule 65 assails and seeks to nullify
International Humanitarian Law, Genocide, and Other the Non-Surrender Agreement concluded by and
Crimes Against Humanity requires that the RP-US Non- between the Republic of the Philippines (RP) and the
Surrender Agreement, which is in derogation of the duty of United States of America (USA).
the Philippines to prosecute those accused of grave
international crimes, should be ratified as a treaty by the The Facts
Senate before the Agreement can take effect.
Petitioner Bayan Muna is a duly registered party-
Same; Same; Same; Same; View that the RP-US Non- list group established to represent the marginalized
Surrender Agreement to be valid and effective must be sectors of society. Respondent Blas F. Ople, now
ratified by the Philippine Senate, and unless so ratified, the deceased, was the Secretary of Foreign Affairs during
Agreement is without force and effect.—Likewise, any the period material to this case. Respondent Alberto
derogation from the surrender option of the Philippines Romulo was impleaded in his capacity as then
under Section 17 of RA 9851 must be embodied in an Executive Secretary.2
applicable extradition law or treaty and not in a mere
executive agreement because such derogation violates RA Rome Statute of the International Criminal
9851, which is superior to, and prevails over, a prior Court
executive agreement allowing such derogation. Under no
circumstance can a mere executive agreement prevail over Having a key determinative bearing on this case is
a prior or subsequent law inconsistent with such executive the Rome Statute3 establishing the International
agreement. Thus, the RP-US Non-Surrender Agreement to Criminal Court (ICC) with “the power to exercise its
be valid and effective must be ratified by the Philippine jurisdiction over persons for the most serious crimes of
Senate, and unless so ratified, the Agreement is without international concern x x x and shall be
force and effect. complementary to the national criminal
jurisdictions.”4 The serious crimes adverted to cover
SPECIAL CIVIL ACTION in the Supreme Court. those considered grave under international law, such
Certiorari, Mandamus and Prohibition. as genocide, crimes against humanity, war crimes,
The facts are stated in the opinion of the Court. and crimes of aggression.5
Julius Garcia Matibag, Edre U. Olalia, Ephraim On December 28, 2000, the RP, through Charge
B. Cortez for petitioner. d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is “subject to ratification,
249 acceptance or approval” by
VOL. 641, FEBRUARY 1, 2011 249 _______________
Bayan Muna vs. Romulo 1 Rollo, pp. 241-265.

2 He is now the DFA Secretary.
VELASCO, JR., J.: 3 Rollo, pp. 74-145.
4 Rome Statute, Art. 1.
The Case
5 Id., Art. 5. 2. Persons of one Party present in the territory of the other
shall not, absent the express consent of the first Party,
250
_______________
250 SUPREME COURT REPORTS ANNOTATED
6 Rome Statute, Article 125.
Bayan Muna vs. Romulo 7 Rollo, pp. 68-69.
8 Id., at p. 72, Paper on the RP-US Non-Surrender Agreement.
the signatory states.6 As of the filing of the instant 9 Id., at p. 70.
petition, only 92 out of the 139 signatory countries
appear to have completed the ratification, approval 251
and concurrence process. The Philippines is not

among the 92. VOL. 641, FEBRUARY 1, 2011 251
RP-US Non-Surrender Agreement Bayan Muna vs. Romulo
On May 9, 2003, then Ambassador Francis J. (a) be surrendered or transferred by any means to
Ricciardone sent US Embassy Note No. 0470 to the
any international tribunal for any purpose,

Department of Foreign Affairs (DFA) proposing the
unless such tribunal has been established by

terms of the non-surrender bilateral agreement the UN Security Council, or
(Agreement, hereinafter) between the USA and the (b) be surrendered or transferred by any means to any
RP. other entity or third country, or expelled to a third
Via Exchange of Notes No. BFO-028-037 dated country, for the purpose of surrender to or transfer to
May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, any international tribunal, unless such tribunal has
represented by then DFA Secretary Ople, agreed with been established by the UN Security Council.
and accepted the US proposals embodied under the 3. When the [US] extradites, surrenders, or otherwise
US Embassy Note adverted to and put in effect the transfers a person of the Philippines to a third country, the [US]
Agreement with the US government. In esse, the will not agree to the surrender or transfer of that person by the
Agreement aims to protect what it refers to and third country to any international tribunal, unless such tribunal
defines as “persons” of the RP and US from frivolous has been established by the UN Security Council, absent the
and harassment suits that might be brought against express consent of the Government of the Republic of the
them in international tribunals.8 It is reflective of the Philippines [GRP].
increasing pace of the strategic security and defense 4. When the [GRP] extradites, surrenders, or otherwise
partnership between the two countries. As of May 2, transfers a person of the [USA] to a third country, the [GRP] will
2003, similar bilateral agreements have been effected not agree to the surrender or transfer of that person by the third
by and between the US and 33 other countries.9 country to any international tribunal, unless such tribunal has
The Agreement pertinently provides as follows: been established by the UN Security Council, absent the express
consent of the Government of the [US].
1. For purposes of this Agreement, “persons” are current or
5. This Agreement shall remain in force until one year after
former Government officials, employees (including contractors), or
the date on which one party notifies the other of its intent to
military personnel or nationals of one Party.
terminate the Agreement. The provisions of this Agreement shall DISCRETION AMOUNTING TO LACK OR EXCESS OF
continue to apply with respect to any act occurring, or any JURISDICTION FOR CONCLUDING THE RP-US NON
allegation arising, before the effective date of termination. SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-
028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE
In response to a query of then Solicitor General GOVERNMENT HAS ALREADY SIGNED THE ROME
Alfredo L. Benipayo on the status of the non- STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
surrender agreement, Ambassador Ricciardone RATIFICATION BY THE PHILIPPINE SENATE.
replied in his letter of October 28, 2003 that the A. Whether by entering into the x x x Agreement
exchange of diplomatic notes constituted a legally Respondents gravely abused their discretion when
binding agreement under international law; and that, they capriciously abandoned, waived and
under US law, the said agreement did not require the relinquished our only legitimate recourse through
advice and consent of the US Senate.10 the Rome Statute of the [ICC] to prosecute and try
In this proceeding, petitioner imputes grave abuse “persons” as defined in the x x x Agreement, x x x
of discretion to respondents in concluding and or literally any conduit of American interests, who
ratifying the Agree- have committed crimes of genocide, crimes against
humanity, war crimes and the crime of aggression,
_______________ thereby abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification
10 Id., at p. 175. of the Rome Statute of the [ICC] the [RP] President
and the [DFA] Secretary x x x are obliged by the
252
principle of good faith to refrain from doing all acts
which would substantially impair the value of the
252 SUPREME COURT REPORTS ANNOTATED undertaking as signed.
Bayan Muna vs. Romulo C. Whether the x x x Agreement constitutes an act
which defeats the object and purpose of the Rome
Statute of the International Criminal Court and
ment and prays that it be struck down as
contravenes the obligation of good faith inherent in
unconstitutional, or at least declared as without force
the signature of the President affixed on the Rome
and effect.
Statute of the International
For their part, respondents question petitioner’s
standing to maintain a suit and counter that the 253
Agreement, being in the nature of an executive
agreement, does not require Senate concurrence for
its efficacy. And for reasons detailed in their VOL. 641, FEBRUARY 1, 2011 253
comment, respondents assert the constitutionality of Bayan Muna vs. Romulo
the Agreement.
Criminal Court, and if so whether the x x x
The Issues
Agreement is void and unenforceable on this
ground.
I. WHETHER THE [RP] PRESIDENT AND THE [DFA]
SECRETARY x x x GRAVELY ABUSED THEIR
D. Whether the RP-US Non-Surrender Agreement 254

is void and unenforceable for grave abuse of
discretion amounting to lack or excess of jurisdiction
in connection with its execution.
II. WHETHER THE RP-US NON SURRENDER Bayan Muna vs. Romulo
AGREEMENT IS VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER IMMORAL OR this regard is what is usually referred to as the
OTHERWISE AT VARIANCE WITH UNIVERSALLY emergency powers cases,12 in which ordinary citizens
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW. and taxpayers were accorded the personality to
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING question the constitutionality of executive issuances.
AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT Locus standi is “a right of appearance in a court of
LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF justice on a given question.”13 Specifically, it is “a
THE SENATE x x x.11 party’s personal and substantial interest in a case
where he has sustained or will sustain direct injury
The foregoing issues may be summarized into two: as a result”14 of the act being challenged, and “calls
first, whether or not the Agreement was contracted for more than just a generalized grievance.”15 The
validly, which resolves itself into the question of term “interest” refers to material interest, as
whether or not respondents gravely abused their distinguished from one that is merely incidental.16
discretion in concluding it; and second, whether or not The rationale for requiring a party who challenges
the Agreement, which has not been submitted to the the validity of a law or international agreement to
Senate for concurrence, contravenes and undermines allege such a personal stake in the outcome of the
the Rome Statute and other treaties. But because controversy is “to assure the concrete adverseness
respondents expectedly raised it, we shall first tackle which sharpens the presentation of issues upon which
the issue of petitioner’s legal standing. the court so largely depends for illumination of
difficult constitutional questions.”17
The Court’s Ruling
Locus standi, however, is merely a matter of
This petition is bereft of merit. procedure and it has been recognized that, in some
cases, suits are not brought by parties who have been
Procedural Issue: Locus Standi of Petitioner personally injured by the operation of a law or any
other government act, but by concerned citizens,
Petitioner, through its three party-list taxpayers, or voters who actually sue in the
representatives, contends that the issue of the
validity or invalidity of the Agreement carries with it _______________
constitutional significance and is of paramount
importance that justifies its standing. Cited in 12 Philconsa v. Gimenez, No. L-23326, December 18, 1965, 15
SCRA 479; Iloilo Palay & Corn Planters Association, No. L-24022,
_______________ March 3, 1965, 13 SCRA 377; Araneta v. Dinglasan, 84 Phil. 368
(1949).
11 Id., at pp. 25-27.

13 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, sustained or is in imminent danger of sustaining some
489 SCRA 160. direct injury as a result of its enforcement, and not merely
14 Jumamil v. Café, G.R. No. 144570, September 21, 2005, 470 that he suffers thereby in some indefinite way. It must
SCRA 475; citing Integrated Bar of the Philippines v. Zamora, G.R. appear that the person complaining has been or is about to
No. 141284, August 15, 2000, 338 SCRA 81. be denied some right or privilege to which he is lawfully
15 Id. entitled or that he is about to be subjected to some burdens
16 Id. or penalties by reason of the statute or act complained of. In
17 Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, fine, when the proceeding involves the assertion of a public
December 10, 2003, 417 SCRA 503; citing Baker v. Carr, 369 U.S. right, the mere fact that he is a citizen satisfies the
186 (1962). See also Gonzales v. Narvasa, G.R. No. 140835, August
requirement of personal interest.”21
14, 2000, 337 SCRA 733.
_______________
255
18 Agan, Jr. v. Philippine International Air Terminals Co., Inc.,
G.R. Nos. 155001, 155547 & 155661, May 5, 2003, 402 SCRA 612.
VOL. 641, FEBRUARY 1, 2011 255 19 Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005,
Bayan Muna vs. Romulo 472 SCRA 515; Agan, Jr., supra note 18; Del Mar v. Philippine
Amusement and Gaming Corporation, G.R. No. 138298, November
18 19
public interest. Consequently, in a catena of cases, 29, 2000, 346 SCRA 485; Tatad v. Garcia, G.R. No. 114222, April 6,
this Court has invariably adopted a liberal stance on 1995, 243 SCRA 436; Kilosbayan v. Guingona, Jr., G.R. No.
locus standi. 113375, May 5, 1994, 232 SCRA 110.
Going by the petition, petitioner’s representatives 20 G.R. No. 160261, November 10, 2003, 415 SCRA 45.
pursue the instant suit primarily as concerned 21 Id., at pp. 136-137.
citizens raising issues of transcendental importance,
both for the Republic and the citizenry as a whole. 256
When suing as a citizen to question the validity of

a law or other government action, a petitioner needs 256 SUPREME COURT REPORTS ANNOTATED
to meet certain specific requirements before he can be
clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.20 expounded on this In the case at bar, petitioner’s representatives
requirement, thus: have complied with the qualifying conditions or
specific requirements exacted under the locus standi
“In a long line of cases, however, concerned citizens, rule. As citizens, their interest in the subject matter
taxpayers and legislators when specific requirements have of the petition is direct and personal. At the very
been met have been given standing by this Court. least, their assertions questioning the Agreement are
When suing as a citizen, the interest of the petitioner made of a public right, i.e., to ascertain that the
assailing the constitutionality of a statute must be direct Agreement did not go against established national
and personal. He must be able to show, not only that the policies, practices, and obligations bearing on the
law or any government act is invalid, but also that he State’s obligation to the community of nations.
At any event, the primordial importance to Filipino Bayan Muna vs. Romulo
citizens in general of the issue at hand impels the
Court to brush aside the procedural barrier posed by Validity of the RP-US Non-Surrender Agreement
the traditional requirement of locus standi, as we
have done in a long line of earlier cases, notably in Petitioner’s initial challenge against the Agreement
the old but oft-cited emergency powers cases22 and relates to form, its threshold posture being that E/N
Kilosbayan v. Guingona, Jr.23 In cases of BFO-028-03 cannot be a valid medium for concluding
transcendental importance, we wrote again in Bayan the Agreement.
v. Zamora,24 “The Court may relax the standing Petitioners’ contention––perhaps taken unaware of
requirements and allow a suit to prosper even where certain well-recognized international doctrines,
there is no direct injury to the party claiming the practices, and jargons––is untenable. One of these is
right of judicial review.” the doctrine of incorporation, as expressed in Section
Moreover, bearing in mind what the Court said in 2, Article II of the Constitution, wherein the
Tañada v. Angara, “that it will not shirk, digress Philippines adopts the generally accepted principles
from or abandon its sacred duty and authority to of international law and international jurisprudence
uphold the Constitution in matters that involve grave as part of the law of the land and adheres to the
abuse of discretion brought before it in appropriate policy of peace, cooperation, and amity with all
cases, committed by any officer, agency, nations.26 An exchange of notes falls “into the
instrumentality or department of the government,”25 category of inter-governmental agreements,”27 which
we cannot but resolve head on the issues raised before is an internationally accepted form of international
us. Indeed, where an action of any branch of agreement. The United Nations Treaty Collections
government is seriously alleged to have infringed the (Treaty Reference Guide) defines the term as follows:
Constitution or is done with grave abuse of discretion,
it becomes not only the right but in fact the duty of An “exchange of notes” is a record of a routine
the judiciary to settle it. As in this petition, issues are agreement, that has many similarities with the private law
precisely raised putting to the fore the propriety of contract. The agreement consists of the exchange of two
the Agreement pending the ratification of the Rome documents, each of the parties being in the possession of
Statute. the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the
offering State to record its assent. The signatories of the
_______________
letters may be government Ministers, diplomats or
22 Supra note 12. departmental heads. The technique of exchange of notes is
23 Supra note 19. frequently resorted to, either because of its speedy
24 G.R. No. 138587, October 10, 2000, 342 SCRA 449. procedure, or, sometimes, to avoid the process of legislative
25 G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49. approval.”28
257 In another perspective, the terms “exchange of

notes” and “executive agreements” have been used
interchangeably, exchange of notes being considered a
VOL. 641, FEBRUARY 1, 2011 257 form of executive agree-

_______________ agreement concluded between states in written form

and governed by international law, whether embodied
26 Cruz, Philippine Political Law 55 (1995).
in a single instrument or in two or more related
27 Harris, Cases and Materials on International Law 801
instruments and whatever its particular
(2004).
designation.”32 International agreements may be in
28 Official Website of the UN
the form of (1) treaties that require legislative
<http://untreaty.un.org/English/guide.asp.>; cited in Abaya v.
concurrence after executive ratification; or (2)
Ebdane, G.R. No. 167919, February 14, 2007, 515 SCRA 720.
executive agreements that are similar to treaties,
258
except that they do not require legislative concur-
_______________
29 Abaya v. Ebdane, supra.
30 Id.; citing The Constitutionality of Trade Agreement Acts by
Francis Sayre.
ment that becomes binding through executive
31 Cited in Commissioner of Customs v. Eastern Sea Trading,
action.29 On the other hand, executive agreements
113 Phil. 333; 3 SCRA 351 (1961).
concluded by the President “sometimes take the form
32 Executive Order No. 459, dated November 25, 1997, contains
of exchange of notes and at other times that of more
a similar definition.
formal documents denominated ‘agreements’ or
‘protocols.’ ”30 As former US High Commissioner to 259
the Philippines Francis B. Sayre observed in his
work, The Constitutionality of Trade Agreement Acts:
VOL. 641, FEBRUARY 1, 2011 259
“The point where ordinary correspondence between this
and other governments ends and agreements—whether
denominated executive agreements or exchange of notes or
otherwise—begin, may sometimes be difficult of ready rence and are usually less formal and deal with a
ascertainment.”31 x x x narrower range of subject matters than treaties.33
Under international law, there is no difference
It is fairly clear from the foregoing disquisition between treaties and executive agreements in terms
that E/N BFO-028-03––be it viewed as the Non- of their binding effects on the contracting states
Surrender Agreement itself, or as an integral concerned,34 as long as the negotiating functionaries
instrument of acceptance thereof or as consent to be have remained within their powers.35 Neither, on the
bound––is a recognized mode of concluding a legally domestic sphere, can one be held valid if it violates
binding international written contract among nations. the Constitution.36 Authorities are, however, agreed
that one is distinct from another for accepted reasons
Senate Concurrence Not Required apart from the concurrence-requirement aspect.37 As
has been observed by US constitutional scholars, a
Article 2 of the Vienna Convention on the Law of treaty has greater “dignity” than an executive
Treaties defines a treaty as “an international agreement, because its constitutional efficacy is
beyond doubt, a treaty having behind it the authority Customs v. Eastern Sea Trading, in which the Court
of the President, the Senate, and the people;38 a reproduced the following observations made by US
legal scholars: “[I]nternational agreements involving
_______________ political issues or changes of national policy and those
involving international arrangements of a permanent
33 B.A. Boczek, International Law: A Dictionary 346 (2005). character usually take the form of treaties [while]
34 Bayan v. Zamora, supra note 24; citing Richard Erickson, those embodying adjustments of detail carrying out
“The Making of Executive Agreements by the US Department of well established national policies and traditions and
Defense,” 13 Boston U. Intl. L. J. 58 (1955); Randall, The Treaty those involving arrangements of a more or less
Power, 51 Ohio St. L.J., p. 4; see also Restatement (Third) of temporary nature take the form of executive
Foreign Relations Law § 301 (1987), which states that “[t]he agreements.” 40
terminology used for international agreements is varied. Among Pressing its point, petitioner submits that the
the terms used are: treaty, convention, agreement, protocol, subject of the Agreement does not fall under any of
covenant, charter, statute, act, declaration, concordat, exchange the subject-categories that are enumerated in the
of notes, agreed minute, memorandum of agreement, Eastern Sea Trading case, and that may be covered
memorandum of understanding, and modus vivendi. Whatever by an executive agreement, such as
their designation, all agreements have the same legal status, commercial/consular relations, most-favored nation
except as their provisions or the circumstances of their conclusion rights, patent rights, trademark and copyright
indicate otherwise.” (Emphasis supplied.) protection, postal and navigation arrangements and
35 Id., at p. 489; citing 5 Hackworth, Digest of International settlement of claims.
Law 395; cited in USAFE Veterans Association Inc. v. Treasurer of In addition, petitioner foists the applicability to the
the Philippines, 105 Phil. 1030, 1037 (1959). instant case of Adolfo v. CFI of Zambales and
36 Reid v. Covert, 354 U.S. 77 S. Ct.1230. Merchant,41 holding that an executive agreement
37 In the US constitutional system, it is the legal force of through an exchange of notes cannot be used to
treaties and executive agreements on the domestic plane. amend a treaty.
38 Henkin, Foreign Affairs and the United States Constitution We are not persuaded.
224 (2nd ed., 1996). The categorization of subject matters that may be
covered by international agreements mentioned in
260 Eastern Sea Trad-
260 SUPREME COURT REPORTS ANNOTATED _______________
Bayan Muna vs. Romulo 39 Prof. Edwin Borchard, Treaties and Executive Agreements—
Reply, Yale Law Journal, June 1945; cited in Justice Antonio T.
ratified treaty, unlike an executive agreement, takes Carpio’s Dissent in Nicolas v. Romulo, G.R. Nos. 175888, 176051 &
precedence over any prior statutory enactment.39 176222, February 11, 2009, 578 SCRA 438.
Petitioner parlays the notion that the Agreement is 40 No. L-14279, October 31, 1961, 3 SCRA 351, 356.
of dubious validity, partaking as it does of the nature 41 No. L-30650, July 31, 1970, 34 SCRA 166.
of a treaty; hence, it must be duly concurred in by the
261
Senate. Petitioner takes a cue from Commissioner of
VOL. 641, FEBRUARY 1, 2011 261 force is binding upon the parties to it and must be performed by
them in good faith.” Pacta sunt servanda is based on good faith.
This entitles states to require that obligations be respected and to
rely upon the obligations being respected. This good-faith basis of
ing is not cast in stone. There are no hard and fast
treaties implies that a party to the treaty cannot invoke provisions
rules on the propriety of entering, on a given subject,
of its domestic law as justification for a failure to perform. The only
into a treaty or an executive agreement as an
limit to pacta sunt servanda is jus cogens (Latin for “compelling
instrument of international relations. The primary
law”), the peremptory norm of general international law.
consideration in the choice of the form of agreement is
the parties’ intent and desire to craft an international 262
agreement in the form they so wish to further their
respective interests. Verily, the matter of form takes
a back seat when it comes to effectiveness and 262 SUPREME COURT REPORTS ANNOTATED
binding effect of the enforcement of a treaty or an Bayan Muna vs. Romulo
executive agreement, as the parties in either
international agreement each labor under the pacta nuclear safety, among others.43 Surely, the
sunt servanda42 principle. enumeration in Eastern Sea Trading cannot
As may be noted, almost half a century has elapsed circumscribe the option of each state on the matter of
since the Court rendered its decision in Eastern Sea which the international agreement format would be
Trading. Since then, the conduct of foreign affairs has convenient to serve its best interest. As Francis Sayre
become more complex and the domain of international said in his work referred to earlier:
law wider, as to include such subjects as human
rights, the environment, and the sea. In fact, in the “x x x It would be useless to undertake to discuss here
US alone, the executive agreements executed by its the large variety of executive agreements as such concluded
President from 1980 to 2000 covered subjects such as from time to time. Hundreds of executive agreements, other
defense, trade, scientific cooperation, aviation, atomic than those entered into under the trade-agreement act,
energy, environmental cooperation, peace corps, arms have been negotiated with foreign governments. x x x They
limitation, and cover such subjects as the inspection of vessels, navigation
dues, income tax on shipping profits, the admission of civil
_______________
air craft, custom matters and commercial relations
generally, international claims, postal matters, the
42 Latin for “agreements must be kept,” Black’s Law Dictionary registration of trademarks and copyrights, etc. x x x”
(8th ed., 2004). The principle of pacta sunt servanda, in its most
common sense, refers to private contracts, stressing that these And lest it be overlooked, one type of executive
pacts and clauses are the law between the parties, and implying agreement is a treaty-authorized44 or a treaty-
that the non-fulfilment of respective obligations is a breach of the implementing executive agreement,45 which
pact. necessarily would cover the same matters subject of
With regard to international agreements, Art. 26 of the Vienna the underlying treaty.
Convention on the Law of Treaties (signed on May 23, 1969 and But over and above the foregoing considerations is
entered into force on January 27, 1980) states that “every treaty in the fact that––save for the situation and matters

contemplated in Sec. 25, Art. XVIII of the Executive and the Senate. The presence of a treaty,
Constitution46––when a treaty is required, the purportedly being subject to amendment by an
Constitution does not classify any subject, like that executive agreement, does not obtain under the
involving political issues, to be in the form of, and premises.
ratified as, a treaty. What the Constitution merely Considering the above discussion, the Court need
prescribes is not belabor at length the third main issue raised,
referring to the validity and effectivity of the
_______________ Agreement without the concurrence by at least two-
thirds of all the members of the Senate. The Court
43 Oona A. Hathaway, Presidential Power Over International has, in Eastern Sea Trading,48 as reiterated in
Law: Restoring the Balance, 119 YLJ 140, 152 (2009). Bayan,49 given recognition to the obligatory effect of
44 Rotunda, Nowak and Young, Treatise on Constitutional Law executive agreements without the concurrence of the
394; cited in then Chief Justice Puno’s dissent in Bayan v. Zamora, Senate:
supra.
“x x x [T]he right of the Executive to enter into binding
45 Nicolas, supra note 39.
agreements without the necessity of subsequent
46 Sec. 25. After the expiration in 1991 of the [RP-US
Congressional approval has been confirmed by long usage.
Military Bases Agreement] foreign military bases, troops, or
From the earliest days of our history, we have entered
facilities shall not be allowed in the Philippines except under a
executive agreements covering such subjects as commercial
treaty duly concurred in by the Senate, and when Congress so
and consular relations, most favored-nation rights, patent
requires, ratified x x x in a national referendum held for that
rights, trademark and copyright protection, postal and
purpose, and recognized as a treaty by the contracting state.
navigation arrangements and the settlement of claims. The
263 validity of these has never been seriously questioned by our
courts.”
VOL. 641, FEBRUARY 1, 2011 263

_______________
47 Supra note 39.
that treaties need the concurrence of the Senate by a 48 Supra note 41.
vote defined therein to complete the ratification 49 Supra note 31.
process.
264
Petitioner’s reliance on Adolfo47 is misplaced, said
case being inapplicable owing to different factual
milieus. There, the Court held that an executive 264 SUPREME COURT REPORTS ANNOTATED
agreement cannot be used to amend a duly ratified Bayan Muna vs. Romulo
and existing treaty, i.e., the Bases Treaty. Indeed, an
executive agreement that does not require the
concurrence of the Senate for its ratification may not The Agreement Not in Contravention
be used to amend a treaty that, under the of the Rome Statute
Constitution, is the product of the ratifying acts of the
It is the petitioner’s next contention that the request outlined in article 91, to any State on the territory of which
Agreement undermines the establishment of the ICC that person may be found and shall request the cooperation of that
and is null and void insofar as it unduly restricts the State in the arrest and surrender of such a person. States Parties
ICC’s jurisdiction and infringes upon the effectivity of shall, in accordance with the provisions of this Part
the Rome Statute. Petitioner posits that the
265
Agreement was constituted solely for the purpose of
providing individuals or groups of individuals with
immunity from the jurisdiction of the ICC; and such VOL. 641, FEBRUARY 1, 2011 265
grant of immunity through non-surrender agreements
allegedly does not legitimately fall within the scope of
Art. 98 of the Rome Statute. It concludes that state
parties with non-surrender agreements are prevented and 9053 thereof.
from meeting their obligations under the Rome
Statute, thereby constituting a breach of Arts. 27,50 _______________
86,51 8952
and the procedure under their national law, comply with
requests for arrest and surrender.
_______________
2. Where the person sought for surrender brings a challenge
50 Article 27 before a national court on the basis of the principle of neb is in
Irrelevance of official capacity idem as provided in article 20, the requested State shall
511. This Statue shall apply equally to all persons without any immediately consult with the Court to determine if there has been
distinction based on official capacity. In particular, official capacity a relevant ruling on admissibility. If the case is admissible, the
as a Head of State or Government, a member of a Government or requested State shall proceed with the execution of the request. If
parliament, an elected representative or a government official shall an admissibility ruling is pending, the requested State may
in no case exempt a person from criminal responsibility under this postpone the execution of the request for surrender of the person
Statute, nor shall it, in and of itself, constitute a ground for until the Court makes a determination on admissibility.
reduction of sentence. 3. (a) A State Party shall authorize, in accordance with its
2. Immunities or special procedural rules which may attach to national procedural law, transportation through its territory of a
the official capacity of a person, whether under national or person being surrendered to the Court by another State, except
international law, shall not bar the Court from exercising its where transit through that State would impede or delay the
jurisdiction over such a person. surrender.
Article 86 (b) A request by the Court for transit shall be transmitted in
General Obligation to Cooperate accordance with article 87. The request for transit shall contain:
States Parties shall, in accordance with the provisions of this (i) A description of the person being transported;
Statute, cooperate fully with the Court in its investigation and (ii) A brief statement of the facts of the case and their
prosecution of crimes within the jurisdiction of the Court. legal characterization; and
52 Article 89 (iii) The warrant for arrest and surrender;
Surrender of persons to the Court (c) A person being transported shall be detained in custody
1. The Court may transmit a request for the arrest and during the period of transit;
surrender of a person, together with the material supporting the
(d) No authorization is required if the person is transported by is admissible and that determination takes into account the
air and no landing is scheduled on the territory of the transit State; investigation or prosecution conducted by the requesting State in
(e) If an unscheduled landing occurs on the territory of the respect of its request for extradition; or
transit State, that State may require a request for transit from the (b) The Court makes the determination described in
Court as provided for in subparagraph (b). The transit State shall subparagraph (a) pursuant to the requested State’s notification
detain the person being transported until the request for transit is under paragraph 1.
received and the transit is effected, provided that detention for 3. Where a determination under paragraph 2 (a) has not been
purposes of this subparagraph may not be extended beyond 96 made, the requested State may, at its discretion, pending the
hours from the unscheduled landing unless the request is received determination of the Court under paragraph 2 (b), proceed to deal
within that time. with the request for extradition from the requesting State but shall
4. If the person sought is being proceeded against or is serving not extradite the person until the Court has determined that the
a sentence in the requested State for a crime different from that for case is inadmissible. The Court’s determination shall be made on
which surrender to the Court is sought, the requested State, after an expedited basis.
making its decision to grant the request, shall consult with the 4. If the requesting State is a State not Party to this Statute
Court. the requested State, if it is not under an international obligation to
53 Article 90 extradite the person to the requesting State, shall give priority to
Competing requests the request for surrender from the Court, if the Court has
1. A State Party which receives a request from the Court for determined that the case is inadmissible.
the surrender of a person under article 89 shall, if it also receives a 5. Where a case under paragraph 4 has not been determined to
request from any other State for the extradition of the same person be admissible by the Court, the requested State may, at its
for the same conduct which forms the basis of the crime for which discretion, proceed to deal with the request for extradition from the
the Court seeks the person’s surrender, notify the Court and the requesting State.
requesting State of that fact. 6. In cases where paragraph 4 applies except that the
requested State is under an existing international obligation to
266
extradite the person to the requesting State not Party to this
Statute, the requested State shall determine whether to surrender
266 SUPREME COURT REPORTS ANNOTATED the person to the Court or extradite the person to the requesting
State. In making its decision, the requested State shall consider all
the relevant factors, including but not limited to:
(a) The respective dates of the requests;
Petitioner stresses that the overall object and purpose (b) The interests of the requesting State including, where
of the Rome Statute is to ensure that those relevant, whether the crime was committed in its territory and the
responsible for the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court
_______________ and the requesting State.
7. Where a State Party which receives a request from the
2. Where the requesting State is a State Party, the requested
Court for the surrender of a person also receives a request from any
State shall give priority to the request from the Court if:
State for the extradition of the same person for conduct other than
(a) The Court has, pursuant to article 18 or 19, made a
that which constitutes the crime for which the Court seeks the
determination that the case in respect of which surrender is sought
person’s surrender:
(a) The requested State shall, if it is not under an existing (b) The requested State shall, if it is under an existing
international obligation to extradite the person to the requesting international obligation to extradite the person to the requesting
State, give priority to the request from the Court; State, determine whether to surrender the person to the Court or to
extradite the person to the requesting State. In making its decision,
267
the requested State shall consider all the relevant factors,
including but not limited to those set out in paragraph 6, but shall
VOL. 641, FEBRUARY 1, 2011 267 give special consideration to the relative nature and gravity of the
conduct in question.
8. Where pursuant to a notification under this article, the
Court has determined a case to be inadmissible, and subsequently
worst possible crimes are brought to justice in all extradition to the requesting State is refused, the requested State
cases, primarily by states, but as a last resort, by the shall notify the Court of this decision.
ICC; thus, any agreement—like the non-surrender 54 Tenth preambular paragraph of the ICC Statute.
agreement—that precludes the ICC from exercising
its complementary function of acting when a state is 268
unable to or unwilling to do so, defeats the object and
purpose of the Rome Statute. 268 SUPREME COURT REPORTS ANNOTATED
Petitioner would add that the President and the
DFA Secretary, as representatives of a signatory of Bayan Muna vs. Romulo
the Rome Statute, are obliged by the imperatives of
good faith to refrain from performing acts that Article 1
substantially devalue the purpose and object of the The Court
Statute, as signed. Adding a nullifying ingredient to “An International Crimininal Court (“the Court”) is
the Agreement, according to petitioner, is the fact that hereby established. It x x x shall have the power to
it has an immoral purpose or is otherwise at variance exercise its jurisdiction over persons for the most serious
with a priorly executed treaty. crimes of international concern, as referred to in this
Contrary to petitioner’s pretense, the Agreement Statute, and shall be complementary to national
does not contravene or undermine, nor does it differ criminal jurisdictions. The jurisdiction and functioning
from, the Rome Statute. Far from going against each of the Court shall be governed by the provisions of this
other, one complements the other. As a matter of fact, Statute.” (Emphasis ours.)
the principle of complementarity underpins the
creation of the ICC. As aptly pointed out by
respondents and admitted by petitioners, the Significantly, the sixth preambular paragraph of
jurisdiction of the ICC is to “be complementary to the Rome Statute declares that “it is the duty of every
national criminal jurisdictions [of the signatory State to exercise its criminal jurisdiction over those
states].”54 Art. 1 of the Rome Statute pertinently responsible for international crimes.” This provision
provides: indicates that primary jurisdiction over the so-called
international crimes rests, at the first instance, with
the state where the crime was committed;
_______________
secondarily, with the ICC in appropriate situations

contemplated under Art. 17, par. 155 of the Rome The foregoing provisions of the Rome Statute,
Statute. taken collectively, argue against the idea of
Of particular note is the application of the jurisdictional conflict between the Philippines, as
principle of ne bis in idem56 under par. 3 of Art. 20, party to the non-surrender agreement, and the ICC;
Rome Statute, which or the idea of the Agreement substantially impairing
the value of the RP’s undertaking under the Rome
_______________ Statute. Ignoring for a while the fact that the RP
signed the Rome Statute ahead of the Agreement, it is
55 1. Having regard to paragraph 10 of the Preamble and abundantly clear to us that the Rome Statute
Article 1, the Court shall determine that a case is inadmissible expressly recognizes the primary jurisdiction of
where: states, like the RP, over serious crimes committed
(a) The case is being investigated or prosecuted by a State within their respective borders, the complementary
which has jurisdiction over it, unless the State is unwilling or jurisdiction of the ICC coming into play only when the
unable genuinely to carry out the investigation or prosecution; signatory states are unwilling or unable to prosecute.
(b) The case has been investigated by a State which has Given the above consideration, petitioner’s
jurisdiction over it and the State has decided not to prosecute the suggestion––that the RP, by entering into the
person concerned, unless the decision resulted from the Agreement, violated its duty required by the
unwillingness or inability of the State genuinely to prosecute; imperatives of good faith and breached its
(c) The person concerned has already been tried for conduct commitment under the Vienna Convention57 to
which is the subject of the complaint, and a trial by the Court is not refrain from performing any act tending to impair the
permitted under article 20, paragraph 3; value of a treaty, e.g., the Rome Statute––has to be
(d) The case is not of sufficient gravity to justify further action rejected outright. For nothing in the provisions of the
by the Court. Agreement, in relation to the Rome Statute, tends to
56 Latin for “not twice for the same,” a legal principle that diminish the efficacy of the Statute, let alone defeats
means no legal action can be instituted twice for the same cause of the purpose of the ICC. Lest it be overlooked, the
269
_______________
VOL. 641, FEBRUARY 1, 2011 269 action. In gist, it is a legal concept substantially the same as or
synonymous to double jeopardy.
57 A state is obliged to refrain from acts that would defeat the
again underscores the primacy of the jurisdiction of a object and purpose of a treaty when: (a) it has signed the treaty or
state vis-a-vis that of the ICC. As far as relevant, the has exchanged instruments constituting the treaty subject to
provision states that “no person who has been tried by ratification, acceptance or approval, until it shall have made its
another court for conduct x x x [constituting crimes intention clear not to become a party to the treaty; or (b) it has
within its jurisdiction] shall be tried by the expressed its consent to be bound by the treaty, pending the entry
[International Criminal] Court with respect to the into force of the treaty and provided that such entry into force is
same conduct x x x.” not unduly delayed.
270
to follow any provision in the treaty would be

premature.
As a result, petitioner’s argument that State-
Bayan Muna vs. Romulo Parties with non-surrender agreements are prevented
from meeting their obligations under the Rome
Rome Statute contains a proviso that enjoins the ICC Statute, specifically Arts. 27, 86,
from seeking the surrender of an erring person,
should the process require the requested state to _______________
perform an act that would violate some international
agreement it has entered into. We refer to Art. 98(2) 58 Vienna Convention on the Law of Treaties, Art. 18.
of the Rome Statute, which reads:
271
Article 98
Cooperation with respect to waiver of immunity VOL. 641, FEBRUARY 1, 2011 271
and consent to surrender
x x x x Bayan Muna vs. Romulo

2. The Court may not proceed with a request for
surrender which would require the requested State to act 89 and 90, must fail. These articles are only legally
inconsistently with its obligations under international binding upon State-Parties, not signatories.
agreements pursuant to which the consent of a sending Furthermore, a careful reading of said Art. 90
State is required to surrender a person of that State to the would show that the Agreement is not incompatible
Court, unless the Court can first obtain the cooperation of with the Rome Statute. Specifically, Art. 90(4)
the sending State for the giving of consent for the provides that “[i]f the requesting State is a State not
surrender.” Party to this Statute the requested State, if it is not
under an international obligation to extradite the
Moreover, under international law, there is a person to the requesting State, shall give priority to
considerable difference between a State-Party and a the request for surrender from the Court. x x x” In
signatory to a treaty. Under the Vienna Convention applying the provision, certain undisputed facts
on the Law of Treaties, a signatory state is only should be pointed out: first, the US is neither a State-
obliged to refrain from acts which would defeat the Party nor a signatory to the Rome Statute; and
object and purpose of a treaty;58 whereas a State- second, there is an international agreement between
Party, on the other hand, is legally obliged to follow the US and the Philippines regarding extradition or
all the provisions of a treaty in good faith. surrender of persons, i.e., the Agreement. Clearly,
In the instant case, it bears stressing that the even assuming that the Philippines is a State-Party,
Philippines is only a signatory to the Rome Statute the Rome Statute still recognizes the primacy of
and not a State-Party for lack of ratification by the international agreements entered into between
Senate. Thus, it is only obliged to refrain from acts States, even when one of the States is not a State-
which would defeat the object and purpose of the Party to the Rome Statute.
Rome Statute. Any argument obliging the Philippines

Sovereignty Limited by International discretion to the US to exercise either its national

Agreements criminal jurisdiction over the “person” concerned or to
give its consent to the referral of the matter to the
Petitioner next argues that the RP has, through ICC for trial. In the same breath, the US must extend
the Agreement, abdicated its sovereignty by the same privilege to the Philippines with respect to
bargaining away the jurisdiction of the ICC to “persons” of the RP committing high crimes within
prosecute US nationals, government US territorial jurisdiction.
officials/employees or military personnel who commit In the context of the Constitution, there can be no
serious crimes of international concerns in the serious objection to the Philippines agreeing to
Philippines. Formulating petitioner’s argument a bit undertake the things set forth in the Agreement.
differently, the RP, by entering into the Agreement, Surely, one State can agree to waive jurisdiction—to
does thereby abdicate its sovereignty, abdication the extent agreed upon—to subjects of another State
being done by its waiving or abandoning its right to due to the recognition of the principle of
seek recourse through the Rome Statute of the ICC extraterritorial immunity. What the Court wrote in
for erring Americans committing international crimes Nicolas v. Romulo59—a case involving the
in the country. implementation of the criminal jurisdiction provisions
We are not persuaded. As it were, the Agreement is of the RP-US Visiting Forces Agreement—is apropos:
but a form of affirmance and confirmance of the
Philippines’ national criminal jurisdiction. National “Nothing in the Constitution prohibits such agreements
criminal jurisdiction being primary, as explained recognizing immunity from jurisdiction or some aspects of
above, it is always the responsibility and within the jurisdiction (such as custody), in relation to long-recognized
prerogative of the RP either to prosecute subjects of such immunity like Heads of State, diplomats
and members of the armed forces contingents of a foreign
272 State allowed to enter another State’s territory. x x x”
To be sure, the nullity of the subject non-surrender

agreement cannot be predicated on the postulate that
Bayan Muna vs. Romulo some of its provisions constitute a virtual abdication
of its sovereignty. Almost every time a state enters
criminal offenses equally covered by the Rome into an international agree-
Statute or to accede to the jurisdiction of the ICC.
Thus, the Philippines may decide to try “persons” of _______________
the US, as the term is understood in the Agreement,
under our national criminal justice system. Or it may 59 Supra note 39.
opt not to exercise its criminal jurisdiction over its
273
erring citizens or over US “persons” committing high
crimes in the country and defer to the secondary
criminal jurisdiction of the ICC over them. As to VOL. 641, FEBRUARY 1, 2011 273
“persons” of the US whom the Philippines refuses to Bayan Muna vs. Romulo
prosecute, the country would, in effect, accord
ment, it voluntarily sheds off part of its sovereignty. 61 Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA
The Constitution, as drafted, did not envision a 18.
reclusive Philippines isolated from the rest of the 62 Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948); cited in
world. It even adheres, as earlier stated, to the policy Agpalo, Public International Law 222-223 (2006).
of cooperation and amity with all nations.60
By their nature, treaties and international 274
agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of 274 SUPREME COURT REPORTS ANNOTATED
sovereignty. By their voluntary act, nations may
decide to surrender or waive some aspects of their Bayan Muna vs. Romulo
state power or agree to limit the exercise of their
otherwise exclusive and absolute jurisdiction. The cludes our country from delivering an American
usual underlying consideration in this partial criminal to the [ICC] x x x.”63
surrender may be the greater benefits derived from a The above argument is a kind of recycling of
pact or a reciprocal undertaking of one contracting petitioner’s earlier position, which, as already
party to grant the same privileges or immunities to discussed, contends that the RP, by entering into the
the other. On the rationale that the Philippines has Agreement, virtually abdicated its sovereignty and in
adopted the generally accepted principles of the process undermined its treaty obligations under
international law as part of the law of the land, a the Rome Statute, contrary to international law
portion of sovereignty may be waived without principles.64
violating the Constitution.61 Such waiver does not The Court is not persuaded. Suffice it to state in
amount to an unconstitutional diminution or this regard that the non-surrender agreement, as
deprivation of jurisdiction of Philippine courts.62 aptly described by the Solicitor General, “is an
assertion by the Philippines of its desire to try and
Agreement Not Immoral/Not at Variance punish crimes under its national law. x x x The
with Principles of International Law agreement is a recognition of the primacy and
competence of the country’s judiciary to try offenses
Petitioner urges that the Agreement be struck under its national criminal laws and dispense justice
down as void ab initio for imposing immoral fairly and judiciously.”
obligations and/or being at variance with allegedly Petitioner, we believe, labors under the erroneous
universally recognized principles of international law. impression that the Agreement would allow Filipinos
The immoral aspect proceeds from the fact that the and Americans committing high crimes of
Agreement, as petitioner would put it, “leaves international concern to escape criminal trial and
criminals immune from responsibility for punishment. This is manifestly incorrect. Persons
unimaginable atrocities that deeply shock the who may have committed acts penalized under the
conscience of humanity; x x x it pre- Rome Statute can be prosecuted and punished in the
Philippines or in the US; or with the consent of the
_______________ RP or the US, before the ICC, assuming, for the
nonce, that all the formalities necessary to bind both
60 Constitution, Art. II, Sec. 2.
countries to the Rome Statute have been met. For
perspective, what the Agreement contextually agreement was executed by the President, thru the
prohibits is the surrender by either party of DFA Secretary, in grave abuse of discretion.
individuals The Court need not delve on and belabor the first
portion of the above posture of petitioner, the same
_______________ having been discussed at length earlier on. As to the
second portion, We wish to state that petitioner
63 Rollo, pp. 53-54. virtually faults the President for performing, through
64 Under Vienna Convention on the Law of Treaties, Art. 18, a respondents, a task conferred the President by the
State has the obligations not to defeat the object and purpose of a Constitution—the power to enter into international
treaty prior to its entry into force when (a) it has signed the treaty agreements.
or has exchanged instruments constituting the treaty subject to By constitutional fiat and by the nature of his or
ratification, acceptance or approval, until it shall have made its her office, the President, as head of state and
intention clear not to become a party to the treaty; or (b) it has government, is the sole organ and authority in the
expressed its consent to be bound by the treaty, pending the entry external affairs of the country.65 The Constitution
into force of the treaty and provided that such entry into force is vests in the President the power to enter into
not unduly delayed. international agreements, subject, in appropriate
cases, to the required concurrence votes of the Senate.
275
But as earlier indicated, executive agreements may
be validly entered into without such concurrence. As
VOL. 641, FEBRUARY 1, 2011 275 the President wields vast powers and influence, her
conduct in the external affairs of the nation is, as
Bayan would put it, “executive altogether.” The
to international tribunals, like the ICC, without the

_______________
consent of the other party, which may desire to
prosecute the crime under its existing laws. With the 65 Bayan v. Zamora, supra.
view we take of things, there is nothing immoral or
violative of international law concepts in the act of 276
the Philippines of assuming criminal jurisdiction
pursuant to the non-surrender agreement over an
offense considered criminal by both Philippine laws
and the Rome Statute. Bayan Muna vs. Romulo
No Grave Abuse of Discretion right of the President to enter into or ratify binding
executive agreements has been confirmed by long
Petitioner’s final point revolves around the
practice.66
necessity of the Senate’s concurrence in the
In thus agreeing to conclude the Agreement thru
Agreement. And without specifically saying so,
E/N BFO-028-03, then President Gloria Macapagal-
petitioner would argue that the non-surrender
Arroyo, represented by the Secretary of Foreign
Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the VOL. 641, FEBRUARY 1, 2011 277
end of the day, the President––by ratifying, thru her Bayan Muna vs. Romulo
deputies, the non-surrender agreement––did nothing
more than discharge a constitutional duty and
exercise a prerogative that pertains to her office. required to complete the treaty process and, thus,
While the issue of ratification of the Rome Statute bring it into force, insofar as the Philippines is
is not determinative of the other issues raised herein, concerned, have yet to be done.
it may perhaps be pertinent to remind all and sundry
Agreement Need Not Be in the Form of a Treaty
that about the time this petition was interposed, such
issue of ratification was laid to rest in Pimentel, Jr. v. On December 11, 2009, then President Arroyo
Office of the Executive Secretary.67 As the Court signed into law Republic Act No. (RA) 9851, otherwise
emphasized in said case, the power to ratify a treaty, known as the “Philippine Act on Crimes Against
the Statute in that instance, rests with the President, International Humanitarian Law, Genocide, and
subject to the concurrence of the Senate, whose role Other Crimes Against Humanity.” Sec. 17 of RA 9851,
relative to the ratification of a treaty is limited particularly the second paragraph thereof, provides:
merely to concurring in or withholding the
ratification. And concomitant with this treaty-making “Section 17. Jurisdiction.—x x x x
power of the President is his or her prerogative to In the interest of justice, the relevant Philippine
refuse to submit a treaty to the Senate; or having authorities may dispense with the investigation or
secured the latter’s consent to the ratification of the prosecution of a crime punishable under this Act if another
treaty, refuse to ratify it.68 This prerogative, the court or international tribunal is already conducting the
Court hastened to add, is the President’s alone and investigation or undertaking the prosecution of such crime.
cannot be encroached upon via a writ of mandamus. Instead, the authorities may surrender or extradite
Barring intervening events, then, the Philippines suspected or accused persons in the Philippines to
remains to be just a signatory to the Rome Statute. the appropriate international court, if any, or to
Under Art. 12569 thereof, the final acts another State pursuant to the applicable extradition
laws and treaties.” (Emphasis supplied.)
_______________
A view is advanced that the Agreement amends
66 Id.; citing Commissioner of Customs, supra. existing municipal laws on the State’s obligation in
67 G.R. No. 158088, July 6, 2005, 462 SCRA 622. relation to grave crimes against the law of nations,
68 Id., at pp. 637-638; citing Cruz, International Law 174 i.e., genocide, crimes
(1998).
69 Signature, ratification, acceptance, approval or accession. _______________
1. This Statute shall be open for signature by all States in
open for signature in Rome at the Ministry of Foreign Affairs of
Rome, at the headquarters of the Food and Agriculture
Italy until 17 October 1998. After that date, the Statute shall
Organization of the United Nations, on 17 July 1998. Thereafter, it
remain open for signature in New York, at United Nations
shall remain
Headquarters, until 31 December 2000.
277

2. This Statute is subject to ratification, acceptance or the consent of the US, and any derogation of Sec. 17
approval by signatory States. Instruments of ratification, of RA 9851, such as requiring the consent of the US
acceptance or approval shall be deposited with the Secretary- before the Philippines can exercise such option,
General of the United Nations. requires an amendatory law. In line with this
3. This Statute shall be open to accession by all States. scenario, the view strongly argues that the Agreement
Instruments of accession shall be deposited with the Secretary- prevents the Philippines—without the consent of the
General of the United Nations. US—from surrendering to any international tribunal
US nationals accused of crimes covered by RA 9851,
278
and, thus, in effect amends Sec. 17 of RA 9851.
Consequently, the view is strongly impressed that the
278 SUPREME COURT REPORTS ANNOTATED Agreement cannot be embodied in a simple executive
agreement in the form of an exchange of notes but
must be implemented through an extradition law or a
treaty with the corresponding formalities.
against humanity and war crimes. Relying on the
above-quoted statutory proviso, the view posits that 279
the Philippine is required to surrender to the proper
international tribunal those persons accused of the
VOL. 641, FEBRUARY 1, 2011 279
grave crimes defined under RA 9851, if it does not
exercise its primary jurisdiction to prosecute them. Bayan Muna vs. Romulo
The basic premise rests on the interpretation that
if it does not decide to prosecute a foreign national for Moreover, consonant with the foregoing view,
violations of RA 9851, the Philippines has only two citing Sec. 2, Art. II of the Constitution, where the
options, to wit: (1) surrender the accused to the Philippines adopts, as a national policy, the
proper international tribunal; or (2) surrender the “generally accepted principles of international
accused to another State if such surrender is law as part of the law of the land,” the Court is
“pursuant to the applicable extradition laws and further impressed to perceive the Rome Statute as
treaties.” But the Philippines may exercise these declaratory of customary international law. In other
options only in cases where “another court or words, the Statute embodies principles of law which
international tribunal is already conducting the constitute customary international law or custom and
investigation or undertaking the prosecution of such for which reason it assumes the status of an
crime;” otherwise, the Philippines must prosecute the enforceable domestic law in the context of the
crime before its own courts pursuant to RA 9851. aforecited constitutional provision. As a corollary, it is
Posing the situation of a US national under argued that any derogation from the Rome Statute
prosecution by an international tribunal for any crime principles cannot be undertaken via a mere executive
under RA 9851, the Philippines has the option to agreement, which, as an exclusive act of the executive
surrender such US national to the international branch, can only implement, but cannot amend or
tribunal if it decides not to prosecute such US repeal, an existing law. The Agreement, so the
national here. The view asserts that this option of the argument goes, seeks to frustrate the objects of the
Philippines under Sec. 17 of RA 9851 is not subject to
principles of law or alters customary rules embodied humanity;70 (2) provides penal sanctions and criminal
in the Rome Statute. liability for their commission;71 and (3) establishes
Prescinding from the foregoing premises, the view special courts for the prosecution of these crimes and
thus advanced considers the Agreement inefficacious, for the State to exercise primary criminal
unless it is embodied in a treaty duly ratified with the jurisdiction.72 Nowhere in RA 9851 is there a proviso
concurrence of the Senate, the theory being that a that goes against the tenor of the Agreement.
Senate—ratified treaty partakes of the nature of a The view makes much of the above quoted second
municipal law that can amend or supersede another par. of Sec. 17, RA 9851 as requiring the Philippine
law, in this instance Sec. 17 of RA 9851 and the State to surrender to the proper international
status of the Rome Statute as constitutive of tribunal those persons accused of crimes sanctioned
enforceable domestic law under Sec. 2, Art. II of the under said law if it does not exercise its primary
Constitution. jurisdiction to prosecute such persons. This view is
We are unable to lend cogency to the view thus not entirely correct, for the above quoted proviso
taken. For one, we find that the Agreement does not clearly provides discretion to the Philippine State on
amend or is repugnant to RA 9851. For another, the whether to surrender or not a person accused of the
view does not clearly state what precise principles of crimes under RA 9851. The statutory proviso uses the
law, if any, the Agreement alters. And for a third, it word “may.” It is settled doctrine in statutory
does not demonstrate in the concrete how the construction that the word “may” denotes discretion,
Agreement seeks to frustrate the objectives of the and cannot be construed as having mandatory
principles of law subsumed in the Rome Statute. effect.73 Thus, the pertinent second pararagraph of
Far from it, as earlier explained, the Agreement Sec. 17, RA 9851 is simply permissive on the part of
does not undermine the Rome Statute as the former the Philippine State.
merely reinforces the primacy of the national Besides, even granting that the surrender of a
jurisdiction of the US and the Philippines in person is mandatorily required when the Philippines
prosecuting criminal offenses committed by does not exercise its primary jurisdiction in cases
where “another court or in-
280
_______________
70 RA 9851, Secs. 4-6.
Bayan Muna vs. Romulo 71 Id., Secs. 7-12.
72 Id., Secs. 17-18.
their respective citizens and military personnel, 73 Republic Planters Bank v. Agana, Sr., G.R. No. 51765, May 3,
among others. The jurisdiction of the ICC pursuant to 1997, 269 SCRA 1, 12.
the Rome Statute over high crimes indicated thereat
is clearly and unmistakably complementary to the 281
national criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and
VOL. 641, FEBRUARY 1, 2011 281
establishes the crimes against international
humanitarian law, genocide and other crimes against Bayan Muna vs. Romulo
ternational tribunal is already conducting the 76 Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222,
investigation or undertaking the prosecution of such February 11, 2009, 578 SCRA 438, 467.
crime,” still, the tenor of the Agreement is not 77 G.R. No. 178830, July 14, 2008, 558 SCRA 329.
repugnant to Sec. 17 of RA 9851. Said legal proviso
282
aptly provides that the surrender may be made “to
another State pursuant to the applicable extradition
laws and treaties.” The Agreement can already be 282 SUPREME COURT REPORTS ANNOTATED
considered a treaty following this Court’s decision in
Nicolas v. Romulo74 which cited Weinberger v. Rossi.75
In Nicolas, We held that “an executive agreement is a
‘treaty’ within the meaning of that word in In his dissent in the abovementioned case, Justice
international law and constitutes enforceable Carpio discussed the legal implications of an
domestic law vis-à-vis the United States.”76 executive agreement. He stated that “an executive
Likewise, the Philippines and the US already have agreement has the force and effect of law x x x [it]
an existing extradition treaty, i.e., RP-US Extradition cannot amend or repeal prior laws.”78 Hence, this
Treaty, which was executed on November 13, 1994. argument finds no application in this case seeing as
The pertinent Philippine law, on the other hand, is RA 9851 is a subsequent law, not a prior one.
Presidential Decree No. 1069, issued on January 13, Notably, this argument cannot be found in the ratio
1977. Thus, the Agreement, in conjunction with the decidendi of the case, but only in the dissenting
RP-US Extradition Treaty, would neither violate nor opinion.
run counter to Sec. 17 of RA 9851. The view further contends that the RP-US
The view’s reliance on Suplico v. Neda77 is Extradition Treaty is inapplicable to RA 9851 for the
similarly improper. In that case, several petitions reason that under par. 1, Art. 2 of the RP-US
were filed questioning the power of the President to Extradition Treaty, “[a]n offense shall be an
enter into foreign loan agreements. However, before extraditable offense if it is punishable under the
the petitions could be resolved by the Court, the laws in both Contracting Parties x x x,”79 and
Office of the Solicitor General filed a Manifestation thereby concluding that while the Philippines has
and Motion averring that the Philippine Government criminalized under RA 9851 the acts defined in the
decided not to continue with the ZTE National Rome Statute as war crimes, genocide and other
Broadband Network Project, thus rendering the crimes against humanity, there is no similar
petition moot. In resolving the case, the Court took legislation in the US. It is further argued that, citing
judicial notice of the act of the executive department U.S. v. Coolidge, in the US, a person cannot be tried
of the Philippines (the President) and found the in the federal courts for an international crime unless
petition to be indeed moot. Accordingly, it dismissed Congress adopts a law defining and punishing the
the petitions. offense.
This view must fail.
On the contrary, the US has already enacted
_______________
legislation punishing the high crimes mentioned
74 Supra note 39. earlier. In fact, as early as October 2006, the US
75 456 U.S. 25 (1982). enacted a law criminalizing war crimes. Section 2441,
Chapter 118, Part I, Title 18 of the United States and Customs of War on Land, signed 18 October
Code Annotated (USCA) provides for the criminal 1907;
offense of “war crimes” which is similar to the war (3) Which constitutes a grave breach of common Article
crimes found in both the Rome Statute and RA 9851, 3 (as defined in subsection [d]) when committed in
thus: the context of and in association with an armed
conflict not of an international character; or
(a) Offense—Whoever, whether inside or outside the United (4) Of a person who, in relation to an armed conflict
States, commits a war crime, in any of the circumstances and contrary to the provisions of the Protocol on
described in subsection (b), shall be fined under this title or Prohibitions or Restrictions on the Use of Mines,
im- Booby-Traps and Other Devices as amended at
Geneva on 3 May 1996 (Protocol II as amended on 3
_______________ May 1996), when the United States is a party to such
Protocol, willfully kills or causes serious injury to
78 Id., at p. 376. (Emphasis supplied.) civilians.80
79 Par. 1, Art. 2, RP-US Extradition Treaty, Senate Resolution
No. 11, November 27, 1995 (emphasis supplied). Similarly, in December 2009, the US adopted a law
that criminalized genocide, to wit:
283
§1091. Genocide
VOL. 641, FEBRUARY 1, 2011 283 (a) Basic Offense—Whoever, whether in the time of peace or
in time of war and with specific intent to destroy, in whole
or in substantial part, a national, ethnic, racial or religious
group as such—
prisoned for life or any term of years, or both, and if death
results to the victim, shall also be subject to the penalty of
_______________
death.
(b) Circumstances—The circumstances referred to in subsection 80 18 U.S.C.A. § 2441.
(a) are that the person committing such war crime or the
victim of such war crime is a member of the Armed Forces of 284
the United States or a national of the United States (as

defined in Section 101 of the Immigration and Nationality 284 SUPREME COURT REPORTS ANNOTATED
Act).
(c) Definition—As used in this Section the term “war crime”
means any conduct—
(1) Defined as a grave breach in any of the (1) kills members of that group;
international conventions signed at Geneva 12 (2) causes serious bodily injury to members of that group;
August 1949, or any protocol to such convention to (3) causes the permanent impairment of the mental faculties
which the United States is a party; of members of the group through drugs, torture, or similar
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex techniques;
to the Hague Convention IV, Respecting the Laws (4) subjects the group to conditions of life that are intended to
cause the physical destruction of the group in whole or in
part; VOL. 641, FEBRUARY 1, 2011 285

(5) imposes measures intended to prevent births within the
group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).81
scholar of public international law and the term
usually refers to legal scholars or “academic
Arguing further, another view has been advanced writers.”82 It has not been shown that the authors83 of
that the current US laws do not cover every crime this report are highly qualified publicists.
listed within the jurisdiction of the ICC and that Assuming arguendo that the report has weight,
there is a gap between the definitions of the different still, the perceived gaps in the definitions of the
crimes under the US laws versus the Rome Statute. crimes are nonexistent. To highlight, the table
The view used a report written by Victoria K. Holt below shows the definitions of genocide and war
and Elisabeth W. Dallas, entitled “On Trial: The US crimes under the Rome Statute vis-à-vis the
Military and the International Criminal Court,” as its definitions under US laws:
basis.
At the outset, it should be pointed out that the _______________
report used may not have any weight or value under
82 Malcolm Shaw, International Law 112 (2008).
international law. Article 38 of the Statute of the
83 Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US Military and the
International Court of Justice (ICJ) lists the sources
International Criminal Court,” The Henry L. Stimson Center, Report No. 55, March
of international law, as follows: (1) international
2006, p. 92; available at <http://www.stimson.org/images/uploads/research-
conventions, whether general or particular,
pdfs/US_Military_
establishing rules expressly recognized by the
and_the_ICC_FINAL_website.pdf> last visited January 27, 2011. We quote Holt and

contesting states; (2) international custom, as
Dallas’ profiles from the report:
evidence of a general practice accepted as law; (3) the
Victoria K. Holt is a senior associate at the Henry L. Stimson Center, where she
general principles of law recognized by civilized
co-directs the Future of Peace Operations program. She has co-authored a study of
nations; and (4) subject to the provisions of Article 59,
peacekeeping reforms at the United Nations, analyzing the implementation of the
judicial decisions and the teachings of the most
2000 Brahimi Report recommendations, and recently completed reports on African
highly qualified publicists of the various
capacity for peace operations and the protection of civilians by military forces. Ms.
nations, as subsidiary means for the determination
Holt joined the Stimson Center in 2001, bringing policy and political expertise on UN
of rules of law. The report does not fall under any of
and peacekeeping issues from her work at the US Department of State, in the NGO
the foregoing enumerated sources. It cannot even be
community and on Capitol Hill. She served as Senior Policy Advisor at the US State
considered as the “teachings of highly qualified
Department (Legislative Affairs), where she worked with Congress on issues involving
publicists.” A highly qualified publicist is a
UN peacekeeping and international organizations. Prior to joining State, she was
Executive Director of the Emergency Coalition for US Financial Support of the United
_______________
Nations, and also directed the Project on Peacekeeping and the UN at the Center for
81 18 U.S.C.A. § 1091. Arms Control and Nonproliferation in Washington, DC. From 1987 to 1994, Ms. Holt
worked as a senior Congressional staffer, focusing on defense and foreign policy issues
285 for the House Armed Services Committee. She served as Legislative Director for Rep.
Thomas H. Andrews and as Senior Legislative Assistant to Rep. George J.

Hochbrueckner. Ms. Holt is a graduate of the Naval War College and holds a B.A. with destruction in whole or in (3) causes the permanent
honors from Wesleyan University. part; impairment of the mental
Elisabeth W. Dallas is a research associate with the Henry L. Stimson Center’s (d) Imposing measures faculties of members of
intended to prevent births the group through drugs,
Future of Peace Operations program and is focusing her work on the restoration of the
within the group; torture, or similar
rule of law in post-conflict settings. In particular, she is analyzing what legal techniques;
mechanisms are required to allow for international criminal jurisdiction within UN (e) Forcibly transferring
children of the group to
peace operations. Prior to working at the Stimson Center, Ms. Dallas was a Senior
Fellow with the Public International Law & Policy Group in Washington, DC, where
another group. (4) subjects the group to
conditions of life that are
she served as a political and legal advisor for parties during international peace
intended to cause the
negotiations taking place in the Middle East, the Balkans and South Asia. Ms. Dallas physical destruction of
earned an MA from Tufts University’s Fletcher School of Law & Diplomacy with a the group in whole or in
concentration in International Negotiation & Conflict Resolution and Public part;
International Law, as well as a Certificate in Human Security and Rule of Law. She
earned her BA from Haverford College. (Emphasis supplied.)
(5) imposes measures
intended to prevent births
286
within the group; or

286 SUPREME COURT REPORTS ANNOTATED (6) transfers by force
Bayan Muna vs. Romulo children of the group to
another group; shall be
punished as provided in
Rome Statute US Law subsection (b).
Article 6 §1091. Genocide
Genocide
(a) Basic Offense—

For the purpose of this Whoever, whether in the

Statute, “genocide” means time of peace or in time of Article 8War Crimes (d) Definition—As used
any of the following acts war and with specific 2. For the purpose of this in this Section the term
committed with intent to intent to destroy, in whole Statute, “war crimes” “war crime” means any
destroy, in whole or in or in substantial part, a means: conduct—
part, a national, ethnical, national, ethnic, racial or (1) Defined as a grave
racial or religious group, religious group as such– (a) Grave breaches of the
Geneva Conventions of 12 breach in any of the
as such: international con-ventions
August 1949, namely, any of
(a) Killing members of the following acts against signed at Geneva 12
(1) kills members of that August 1949, or any
the group; group; persons or property
protected under the protocol to such convention
(b) Causing serious bodily to which the United States
or mental harm to provisions of the relevant
Geneva Con- is a party;
members of the group; (2) causes serious bodily
injury to members of that (2) Prohibited by Article
(c) Deliberately inflicting 23, 25,
group;
on the group conditions of
life calculated to bring
about its physical

287 upon another person within his custody or physical control for the purpose of
obtaining information or a confession, punishment, intimidation, coercion, or

any reason based on discrimination of any kind.
VOL. 641, FEBRUARY 1, 2011 287
(B) Cruel or inhuman treatment.—The act of a person who commits, or
Bayan Muna vs. Romulo conspires or attempts to commit, an act intended to inflict severe or serious
physical or mental pain or suffering (other than pain or suffering incidental
27 or 28 of the Annex to lawful sanction), including serious physical abuse, upon another within his
vention: x x x84 to the Hague custody or control.
(b) Other serious violations of Convention IV, (C) Performing biological experiments.—The act of a person who
the laws and customs applicable Respecting the Laws subjects, or conspires or attempts to subject, one or more person within his
in international armed conflict, and Customs of War
custody or physical control to biological experiments without a legitimate
within the established on Land, signed 18
medical or dental purpose and in so doing endangers the body or health of
framework of international law, October 1907;
such person or persons.
namely, any of the following acts: (3) Which constitutes
(D) Murder.—The act of a person who intentionally or unintentionally
a grave breach of
common Article 3 (as in the course of committing any other offense under this subsection, one or
defined in subsection more persons taking no active part in the hostilities, including those placed
[d]85) when out of combat by sickness, wounds, detention, or any other cause.
committed in (E) Mutilation or maiming.—The act of a person who intentionally
injures, or conspires or attempts to injure, or injures whether intentionally or
unintentionally in the course of committing any other offense under this
_______________ subsection, one or more persons taking no active part in the hostilities,
including those placed out of combat by sickness, wounds, detention, or any

84 (i) Willful killing;
other cause, by disfiguring the person or persons by any mutilation
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Willfully causing great suffering, or serious injury to body or health; 288
(iv) Extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces
of a hostile Power; Bayan Muna vs. Romulo

(vi) Willfully depriving a prisoner of war or other protected person of the rights of
fair and regular trial; x x x x the context of and in

(vii) Unlawful deportation or transfer or unlawful confinement;
(c) In the case of an armed associate with an armed
(viii) Taking of hostages. conflict not of an conflict not of an
85 (d) Common Article 3 violations.— international character, international character;
serious violations of article 3 or
(1) Prohibited conduct—In subsection (c)(3), the term “grave breach of common
Article 3” means any conduct (such conduct constituting a grave breach of common
common to the four Geneva (4) Of a person who, in
Conventions of 12 August relation to an armed
Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
1949, namely, any of the conflict and contrary to
(A) Torture.—The act of a person who commits, or conspires or attempts following acts committed the provisions of the
to commit, an act specifically intended to inflict severe physical or mental against persons taking no Protocol on Prohibitions
pain or suffering (other than pain or suffering incidental to lawful sanctions) active part in the hostilities, or Restrictions on the

including members of armed Use of Mines, (C) the term “sexual contact” shall be applied for purposes of paragraph
forces who have laid down Booby- Traps and Other (1)(G) in accordance with the meaning given that term in section 2246 (3) of
their arms and those placed Devices as amended at this title;
hors de combat by sickness, Geneva on 3 May 1996
(D) the term “serious physical pain or suffering” shall be applied for
wounds, detention or any (Protocol II as amended
other cause: on 3 May 1996), when purposes of paragraph (1)(B) as meaning bodily injury that involves—
the United States is a (i) a substantial risk of death;

party to such Protocol, (ii) extreme physical pain;
willfully kills or causes (iii) a burn or physical disfigurement of a serious nature (other
serious than cuts, abrasions, or bruises); or
(iv) a significant loss or impairment of the function of a bodily
_______________ member, organ, or mental faculty; and
thereof or by permanently disabling any member, limb, or organ of his 289

body, without any legitimate medical or dental purpose.

(F) Intentionally causing serious bodily injury.—The act of a person who

VOL. 641, FEBRUARY 1, 2011 289
intentionally causes, or conspires or attempts to cause, serious bodily injury
to one or more persons, including lawful combatants, in violation of the law of Bayan Muna vs. Romulo
war.
(G) Rape.—The act of a person who forcibly or with coercion or threat of x x x x injury to
force wrongfully invades, or conspires or attempts to invade, the body of a (d) Paragraph 2 (c) applies to armed civilians.86
person by penetrating, however slightly, the anal or genital opening of the conflicts not of an international character
victim with any part of the body of the accused, or with any foreign object. and thus does not apply to situations of
(H) Sexual assault or abuse.—The act of a person who forcibly or with
internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence
coercion or threat of force engages, or conspires or attempts to engage, in
or other acts of a similar nature.
sexual contact with one or more persons, or causes, or conspires or attempts
(e) Other serious violations of the laws and
to cause, one or more persons to engage in sexual contact.
customs applicable in armed conflicts not of
(I) Taking hostages.—The act of a person who, having knowingly seized
an international character, within the
or detained one or more persons, threatens to kill, injure, or continue to established framework of international law,
detain such person or persons with the intent of compelling any nation, namely, any of the following acts: x x x.
person other than the hostage, or group of persons to act or refrain from
acting as an explicit or implicit condition for the safety or release of such Evidently, the gaps pointed out as to the definition of
person or persons. the crimes are not present. In fact, the report itself
(2) Definitions.—In the case of an offense under subsection (a) by reason of stated as much, to wit:
subsection (c)(3)—
(A)the term “severe mental pain or suffering” shall be applied for purposes “Few believed there were wide differences between the
of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that crimes under the jurisdiction of the Court and crimes
term in section 2340 (2) of this title; within the Uniform Code of Military Justice that would
(B) the term “serious bodily injury” shall be applied for purposes of expose US personnel to the Court. Since US military
paragraph (1)(F) in accordance with the meaning given that term in section lawyers were instrumental in drafting the
113 (b)(2) of this title;

_______________ the Rome Statute have been part of US military

doctrine for decades.”88 Thus, the argument proffered
E) the term “serious mental pain or suffering” shall be applied for purposes of
cannot stand.
paragraph (1)(B) in accordance with the meaning given the term “severe mental pain
Nonetheless, despite the lack of actual domestic
or suffering” (as defined in section 2340(2) of this title), except that —
legislation, the US notably follows the doctrine of
(i) the term “serious shall replace the term “sever” where it appears; and
incorporation. As early as 1900, the esteemed Justice
(ii) as to conduct occurring after the date of the enactment of the
Gray in The Paquete Habana89 case already held
Military Commissions Act of 2006, the term “serious and non-transitory
international law as part of the law of the US, to wit:
mental harm (which need not be prolonged)” shall replace the term
“prolonged mental harm” where it appears. “International law is part of our law, and must be
(3) Inapplicability of certain provisions with respect to collateral damage or ascertained and administered by the courts of justice of
incident of lawful attack.—The intent specified for the conduct stated in appropriate jurisdiction as often as questions of right
subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those depending upon it are duly presented for their
subparagraphs to an offense under subsection (A) by reasons of subsection (C)(3) with determination. For this purpose, where there is no treaty
respect to— and no controlling executive or legislative act or judicial
(A) collateral damage; or decision, resort must be had to the customs and usages of
(B) death, damage, or injury incident to a lawful attack. civilized nations, and, as evidence of these, to the works of
(4) Inapplicability of taking hostages to prisoner exchange.—Paragraph (1)(I) jurists and commentators who by years of labor, research,
does not apply to an offense under subsection (A) by reason of subsection (C)(3) in the and experience have made themselves peculiarly well
case of a prisoner exchange during wartime. acquainted with the subjects of which they treat. Such
(5) Definition of grave breaches.—The definitions in this subsection are intended works are resorted to by judicial tribunals, not for the
only to define the grave breaches of common Article 3 and not the full scope of United speculations of their authors concerning what the law ought
States obligations under that Article. to be, but for the trustworthy evidence of what the law
86 18 U.S.C.A. § 2441. really is.”90 (Emphasis supplied.)
290
Thus, a person can be tried in the US for an
international crime despite the lack of domestic
290 SUPREME COURT REPORTS ANNOTATED legislation. The cited ruling
_______________
elements of crimes outlined in the Rome Statute, they
87 Victoria K. Holt and Elisabeth W. Dallas, supra note 83, at
ensured that most of the crimes were consistent with those
outlined in the UCMJ and gave strength to p. 7.
complementarity for the US. Small areas of potential gaps 88 Id., at p. 35.
between the UCMJ and the Rome Statute, military experts 89 175 U.S. 677, 20 S.Ct. 290 (1900).
argued, could be addressed through existing military 90 Id., at p. 700; citing Hilton v. Guyot, 159 U.S. 113, 163, 164,
laws.87 x x x” 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.
291
The report went on further to say that “[a]ccording
to those involved, the elements of crimes laid out in

VOL. 641, FEBRUARY 1, 2011 291 96 317 U.S. 1 (1942).

97 Id., at pp. 27-28; citing Talbot v. Jansen, 3 Dall. 133, 153,
159, 161, 1 L.Ed. 540; Talbot v. Seeman, 1 Cranch 1, 40, 41, 2 L.Ed.
15; Maley v. Shattuck, 3 Cranch 458, 488, 2 L.Ed. 498; Fitzsimmons
in U.S. v. Coolidge,91 which in turn is based on the
v. Newport Ins. Co., 4 Cranch 185, 199, 2 L.Ed. 591; The Rapid, 8
holding in U.S. v. Hudson,92 only applies to common
Cranch 155, 159-164, 3 L.Ed. 520; The St. Lawrence, 9 Cranch 120,
law and not to the law of nations or international
122, 3 L.Ed. 676; Thirty Hogsheads of Sugar v. Boyle, 9 Cranch
law.93 Indeed, the Court in U.S. v. Hudson only
191,
considered the question, “whether the Circuit Courts
of the United States can exercise a common law 292
jurisdiction in criminal cases.”94 Stated otherwise,
there is no common law crime in the US but this is
considerably different from international law. 292 SUPREME COURT REPORTS ANNOTATED
The US doubtless recognizes international law as Bayan Muna vs. Romulo
part of the law of the land, necessarily including
international crimes, even without any local
that Congress had not undertaken the task of
statute.95 In fact, years later, US courts would apply
codifying the specific offenses covered in the law of
international law as a source of criminal liability
war, thus:
despite the lack of a local statute criminalizing it as
such. So it was that in Ex Parte Quirin96 the US “It is no objection that Congress in providing for the
Supreme Court noted that “[f]rom the very beginning trial of such offenses has not itself undertaken to codify
of its history this Court has recognized and applied that branch of international law or to mark its
the law of war as including that part of the law of precise boundaries, or to enumerate or define by
nations which prescribes, for the conduct of war, the statute all the acts which that law condemns. An Act
status, rights and duties of enemy nations as well as of Congress punishing ‘the crime of piracy as defined by the
of enemy individuals.”97 It went on further to explain law of nations is an appropriate exercise of its
constitutional authority, Art. I, s 8, cl. 10, ‘to define and
_______________ punish’ the offense since it has adopted by reference the
sufficiently precise definition of international law. x x x
91 14 U.S. 415, 1816 WL 1770 (U.S.Mass.) (1816). Similarly by the reference in the 15th Article of War to
92 11 U.S. (7 Cranch) 32 (1812). ‘offenders or offenses that x x x by the law of war may be
93 Jordan J. Paust, Customary International Law and Human triable by such military commissions. Congress has
Rights Treaties are Law of the United States, 20 MIJIL 301, 309 incorporated by reference, as within the jurisdiction of
(1999). military commissions, all offenses which are defined as such
94 11 U.S. (7 Cranch) 32, 32 (1812). by the law of war x x x, and which may constitutionally be
95 “x x x [C]ustomary international law is part of the law of the included within that jurisdiction.”98 x x x (Emphasis
United States to the limited extent that, where there is no treaty, supplied.)
and no controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of civilized nations.” This rule finds an even stronger hold in the case of
U.S. v. Yousef, 327 F.3d 56, 92 (2003). crimes against humanity. It has been held that

genocide, war crimes and crimes against humanity States.103 It is demonstrated upon the existence of
have attained the status of customary international the following elements: (1) generality; (2) uniformity
law. Some even go so far as to state that these crimes and consistency; and (3) duration.104 While, opinio
have attained the status of jus cogens.99 juris, the psychological element, requires that the
state practice or norm “be carried out in such a way,
_______________ as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law
197, 198, 3 L.Ed. 701; The Anne, 3 Wheat. 435, 447, 448, 4 L.Ed. requiring it.”105
428; United States v. Reading, 18 How. 1, 10, 15 L.Ed. 291; Prize “The term ‘jus cogens’ means the ‘compelling
Cases (The Amy Warwick), 2 Black 635, 666, 667, 687, 17 L.Ed. law.’ ”106 Corollary, “a jus cogens norm holds the
459; The Venice, 2 Wall. 258, 274, 17 L.Ed. 866; The William highest hierarchical position among all other
Bagaley, 5 Wall. 377, 18 L.Ed. 583; Miller v. United States, 11 Wall. customary norms and principles.”107 As a result, jus
268, 20 L.Ed. 135; Coleman v. Tennessee, 97 U.S. 509, 517, 24 L.Ed. cogens norms are deemed “peremptory and non-
1118; United States v. Pacific R.R., 120 U.S. 227, 233, 7 S.Ct. 490,
492, 30 L.Ed. 634; Juragua Iron Co. v. United States, 212 U.S. 297, _______________
29 S.Ct. 385, 53 L.Ed. 520.
100 I.C.J. Statute, art. 38, ¶ 1 (b) international custom, as
98 Id., at pp. 29-30.
evidence of a general practice accepted as law.
99 Application of the Convention on the Prevention and
101 North Sea Continental Shelf, 1969 I.C.J. ¶ 77; cited in
Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Patrick Simon S. Perillo, Transporting the Concept of Creeping
Serbia and Montenegro), Merits, I.C.J. judgment, February 26,
Expropriation from De Lege Ferenda to De Lege Lata: Concretizing
2007, § 161; M. Cherif Bassiouni, International Crimes: Jus Cogens
the Nebulous Under International Law, 53 Ateneo L.J. 434, 509-510
and Obligatio Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 68.
(2008).
293 102 North Sea Continental Shelf, 1969 I.C.J. ¶ 77; D.J. Harris,
Cases and Materials on International Law, 22 (2004).
103 North Sea Continental Shelf, 1969 I.C.J. at 175 (Tanaka, J.,
VOL. 641, FEBRUARY 1, 2011 293
dissenting).
Bayan Muna vs. Romulo 104 Fisheries Jurisdiction (U.K. v. Ice) (Merits), 1974 I.C.J. 3,
89-90 (de Castro, J., separate opinion).
Customary international law or international 105 North Sea Continental Shelf, 1969 I.C.J. ¶ 77.
custom is a source of international law as stated in 106 M. Cherif Bassiouni, International Crimes: Jus Cogens and
the Statute of the ICJ.100 It is defined as the “general Obligatio Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 67.
and consistent practice of states recognized and 107 Id.
followed by them from a sense of legal obligation.”101
In order to establish the customary status of a 294
particular norm, two elements must concur: State
practice, the objective element; and opinio juris sive
necessitates, the subjective element.102
State practice refers to the continuous repetition of Bayan Muna vs. Romulo
the same or similar kind of acts or norms by
derogable.”108 When applied to international crimes, 113 Pharmaceutical and Health Care Association of the
“jus cogens crimes have been deemed so fundamental Philippines v. Duque III, G.R. No. 173034, October 9, 2007, 535
to the existence of a just international legal order that SCRA 265.
states cannot derogate from them, even by
agreement.”109 295
These jus cogens crimes relate to the principle of

universal jurisdiction, i.e., “any state may exercise VOL. 641, FEBRUARY 1, 2011 295
jurisdiction over an individual who commits certain
heinous and widely condemned offenses, even when
no other recognized basis for jurisdiction exists.”110
“The rationale behind this principle is that the crime only 114114 States have ratified the Rome Statute,
committed is so egregious that it is considered to be subsequent to its coming into force eight (8) years
committed against all members of the international earlier, or on July 1, 2002. The fact that 114 States
community”111 and thus granting every State out of a total of 194115 countries in the world, or
jurisdiction over the crime.112 roughly 58.76%, have ratified the Rome Statute casts
Therefore, even with the current lack of domestic doubt on whether or not the perceived principles
legislation on the part of the US, it still has both the contained in the Statute have attained the status of
doctrine of incorporation and universal jurisdiction to customary law and should be deemed as obligatory
try these crimes. international law. The numbers even tend to argue
Consequently, no matter how hard one insists, the against the urgency of establishing international
ICC, as an international tribunal, found in the Rome criminal courts envisioned in the Rome Statute. Lest
Statute is not declaratory of customary international it be overlooked, the Philippines, judging by the
law. action or inaction of its top officials, does not even feel
The first element of customary international law, bound by the Rome Statute. Res ipsa loquitur. More
i.e., “established, widespread, and consistent practice than eight (8) years have elapsed since the Philippine
on the part of States,”113 does not, under the representative signed the Statute, but the treaty has
premises, appear to be obtaining as reflected in this not been transmitted to the Senate for the ratification
simple reality: As of October 12, 2010, process.
And this brings us to what Fr. Bernas, S.J. aptly
said respecting the application of the concurring
_______________
elements, thus:
108 Id.
“Custom or customary international law means “a
109 Carlee M. Hobbs, The Conflict Between the Alien Tort
general and consistent practice of states followed by them
Statute Litigation and Foreign Amnesty Laws, 43 Vand. J.
from a sense of legal obligation [opinio juris] x x x.” This
Transnat’l L. 505, 521 (2009-2010); citing Jeffrey L. Dunoff, et al.,
statement contains the two basic elements of custom: the
International Law: Norms, Actors Process 58-59 (2d ed., 2006).
material factor, that is how the states behave, and the
110 Id.; citing Jeffrey L. Dunoff et al., International Law:
psychological factor or subjective factor, that is, why they
Norms, Actors Process 380 (2d ed., 2006).
behave the way they do.
111 Id.
x x x x
112 Id.
The initial factor for determining the existence of custom must be deemed non-existent, for an inquiry on why
is the actual behavior of states. This includes several states behave the way they do presupposes, in the
elements: duration, consistency, and generality of the first place, that they are actually behaving, as a
practice of states. matter of settled and consistent practice, in a certain
The required duration can be either short or long. x x x manner. This implicitly requires belief that the
x x x x practice in question is rendered obligatory by the
existence of a rule of law requiring it.117 Like the first
_______________ element, the second element has likewise not been
shown to be present.
114 See <http://www.icc-cpi.int/Menus/ASP/states+parties/> (last visited
Further, the Rome Statute itself rejects the
January 26, 2011).
concept of universal jurisdiction over the crimes
115 <http://www.nationsonline.org oneworld /states.org> (last visited
enumerated therein as evidenced by it requiring State
October 18, 2010). The list does not include dependent territories.
consent.118 Even further, the
296
_______________
296 SUPREME COURT REPORTS ANNOTATED 116 Joaquin G. Bernas, S.J., An Introduction to Public
Bayan Muna vs. Romulo International Law 10-13 (2002); cited in Pharmaceutical and
Health Care Association of the Philippines v. Duque III, supra note
Duration therefore is not the most important element. 113, at p. 292.
More important is the consistency and the generality of the 117 Pharmaceutical and Health Care Association of the
practice. x x x Philippines, supra note 113, at pp. 290-291; citation omitted.
x x x x 118 Article 12. Preconditions to the exercise of jurisdiction.
Once the existence of state practice has been
established, it becomes necessary to determine why 297
states behave the way they do. Do states behave the
way they do because they consider it obligatory to behave
VOL. 641, FEBRUARY 1, 2011 297
thus or do they do it only as a matter of courtesy? Opinio
juris, or the belief that a certain form of behavior is Bayan Muna vs. Romulo
obligatory, is what makes practice an international rule.
Without it, practice is not law.”116 (Emphasis added.) Rome Statute specifically and unequivocally requires
that: “This Statute is subject to ratification,
Evidently, there is, as yet, no overwhelming acceptance or approval by signatory States.”119 These
consensus, let alone prevalent practice, among the clearly negate the argument that such has already
different countries in the world that the prosecution attained customary status.
of internationally recognized crimes of genocide, etc. More importantly, an act of the executive branch
should be handled by a particular international with a foreign government must be afforded great
criminal court. respect. The power to enter into executive agreements
Absent the widespread/consistent-practice-of- has long been recognized to be lodged with the
states factor, the second or the psychological element President. As We held in Neri v. Senate Committee on
Accountability of Public Officers and Investigations, In light of the above consideration, the position or
“[t]he power to enter into an executive agreement is view that the challenged RP-US Non-Surrender
in essence an executive power. This authority of the Agreement ought to be in the form of a treaty, to be
President to enter into executive agreements without effective, has to be rejected.
the concurrence of the Legislature has traditionally WHEREFORE, the petition for certiorari,
been recognized in Philippine jurisprudence.”120 The mandamus and prohibition is hereby DISMISSED for
rationale behind this principle is the inviolable lack of merit. No costs.
doctrine of separation of powers among the SO ORDERED.
legislative, executive and judicial branches of the
government. Thus, absent any clear contravention of Corona (C.J), Nachura, Leonardo-De Castro,
the law, courts should exercise utmost caution in Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr.,
declaring any executive agreement invalid. Perez and
Mendoza, JJ., concur.
Carpio, J., See Dissenting Opinion.
_______________
Carpio-Morales, J., I join the Dissent of J.
1. A State which becomes a Party to this Statute thereby Carpio.
accepts the jurisdiction of the Court with respect to the crimes Brion, J., No Part.
referred to in article 5. Sereno, J., I concur in the result.
2. In the case of Article 13, paragraph (a) or (c), the Court may
exercise its jurisdiction if one or more of the following States are DISSENTING OPINION
Parties to this Statute or have accepted the jurisdiction of the
CARPIO, J.:
Court in accordance with paragraph 3:
I dissent.
(a) The State on the territory of which the conduct in
The RP-US Non-Surrender Agreement
question occurred or, if the crime was committed on board a
(Agreement) violates existing municipal laws on the
vessel or aircraft, the State of registration of that vessel or
Philippine State’s obligation to prosecute persons
aircraft.
responsible for any of the international crimes of
(b) The State of which the person accused of the crime is
genocide, war crimes and other crimes against
a national.
humanity. Being a mere executive agreement that is
119 Rome Statute of the International Criminal Court, Art. 25,
indisputably inferior to municipal law, the Agreement
par. 2.
cannot prevail over a prior or subsequent municipal
120 G.R. No. 180643, September 4, 2003, 564 SCRA 152, 197-
law inconsistent with it.
198.
First, under existing municipal laws arising from
298 the incorporation doctrine in Section 2, Article II of
the Philippine Constitution,1 the State is required to
surrender to the proper
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8/10/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 641 8/10/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 641

(1994). In cases of transcendental importance, we wrote

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VOL. 641, FEBRUARY 1, 2011 247 CARPIO, J., Dissenting Opinion:

Same; Same; Same; Same; Philippine Act on Crimes

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VOL. 641, FEBRUARY 1, 2011 249 _______________

Bayan Muna vs. Romulo 1 Rollo, pp. 241-265.

and concurrence process. The Philippines is not

RP-US Non-Surrender Agreement Bayan Muna vs. Romulo

any international tribunal for any purpose,

unless such tribunal has been established by

D. Whether the RP-US Non-Surrender Agreement 254

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When suing as a citizen to question the validity of

257 In another perspective, the terms “exchange of

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_______________ agreement concluded between states in written form

260 SUPREME COURT REPORTS ANNOTATED _______________

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VOL. 641, FEBRUARY 1, 2011 263

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to follow any provision in the treaty would be

x x x x Bayan Muna vs. Romulo

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Sovereignty Limited by International discretion to the US to exercise either its national

To be sure, the nullity of the subject non-surrender

to international tribunals, like the ICC, without the

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the United States or a national of the United States (as

part; VOL. 641, FEBRUARY 1, 2011 285

and_the_ICC_FINAL_website.pdf> last visited January 27, 2011. We quote Holt and

Thomas H. Andrews and as Senior Legislative Assistant to Rep. George J.

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For the purpose of this Whoever, whether in the

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obtaining information or a confession, punishment, intimidation, coercion, or

physical or mental pain or suffering (other than pain or suffering incidental

vention: x x x84 to the Hague custody or control.

unintentionally in the course of committing any other offense under this

including those placed out of combat by sickness, wounds, detention, or any

of a hostile Power; Bayan Muna vs. Romulo

fair and regular trial; x x x x the context of and in

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the United States is a (i) a substantial risk of death;

(iv) a significant loss or impairment of the function of a bodily

_______________ member, organ, or mental faculty; and

thereof or by permanently disabling any member, limb, or organ of his 289

(F) Intentionally causing serious bodily injury.—The act of a person who

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_______________ the Rome Statute have been part of US military

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VOL. 641, FEBRUARY 1, 2011 291 96 317 U.S. 1 (1942).

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These jus cogens crimes relate to the principle of

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