Bayan Muna vs. Romulo

8/3/24, 12:37 AM SUPREME COURT REPORTS ANNOTATED VOLUME 641
244 SUPREME COURT REPORTS ANNOTATED

Bayan Muna vs. Romulo
*
G.R. No. 159618. February 1, 2011.
BAYAN MUNA, as represented by Rep. SATUR 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, respondents.
Actions; Procedural Rules and Technicalities; Locus Standi;

Locus standi is a right of appearance in a court of justice on a
given question.—Locus standi is “a right of appearance in a court
of justice on a given question.” Specifically, it is “a party’s
personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result” of the act being
challenged, and “calls for more than just a generalized grievance.”
The term “interest” refers to material interest, as distinguished
from one that is merely incidental.
Same; Same; Same; In cases of transcendental importance, 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.—At any event, the primordial
importance to Filipino citizens in general of the issue at hand
impels the Court to brush aside the procedural barrier posed by
the traditional requirement of locus standi, as we have done in a
long line of earlier cases, notably in the old but oft-cited
emergency powers cases and Kilosbayan v. Guingona, Jr., 232
SCRA 110 (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
Agreements; Words and Phrases; The terms “exchange of notes”
and “executive agreements” have been used interchangeably,
exchange of notes being considered a form of executive agreement
that becomes binding through executive action.—In another
perspective, the terms “exchange of notes” and “executive
agreements” have been used inter-
_______________
* EN BANC.
245
VOL. 641, FEBRUARY 1, 2011 245
changeably, exchange of notes being considered a form of

executive agreement that becomes binding through executive
https://escra.mycentralapp.com/sfsreader/session/0000019113f435aff4565469000d00d40059004a/t/?o=False 1/66
action. On the other hand, executive agreements concluded by the

President “sometimes take the form of exchange of notes and at
other times that of more formal documents denominated
‘agreements’ or ‘protocols.’ ”
Same; Same; Same; There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international relations.—
There are no hard and fast rules on the propriety of entering, on a
given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration
in the choice of the form of agreement is the parties’ intent and
desire to craft an international agreement in the form they so
wish to further their respective interests.
Same; Same; Same; RP-US Non-Surrender Agreement; An
executive agreement that does not require the concurrence of the
Senate for its ratification may not be used to amend a treaty that,
under the Constitution, is the product of the ratifying acts of the
Executive and the Senate.—Petitioner’s reliance on Adolfo is
misplaced, said case being inapplicable owing to different factual
milieus. There, the Court held that an executive agreement
cannot be used to amend a duly ratified 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
be used to amend a treaty that, under the Constitution, is the
product of the ratifying acts of the Executive and the Senate. The
presence of a treaty, purportedly being subject to amendment by
an executive agreement, does not obtain under the premises.
Considering the above discussion, the Court need 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 has, in
Eastern Sea Trading, as reiterated in Bayan, given recognition to
the obligatory effect of executive agreements without the
concurrence of the Senate.
Same; Same; Same; Same; The RP-US Non-Surrender
Agreement is but a form of affirmance and confirmance of
the Philippines’ national criminal jurisdiction.—As it were, the
Agreement is but a form of affirmance and confirmance of the
Philippines’ national criminal jurisdiction. National criminal
jurisdiction being primary,
246
as explained above, it is always the responsibility and within the

prerogative of the RP either to prosecute criminal offenses equally
covered by the Rome 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 opt not to exercise its criminal
jurisdiction over its erring citizens or over US “persons”
committing high crimes in the country and defer to the secondary
criminal jurisdiction of the ICC over them.
Same; Same; Same; Same; International Law; One State can
agree to waive jurisdiction to subjects of another State due to the
recognition of the principle of extraterritorial immunity.—In the
context of the Constitution, there can be no serious objection to
the Philippines agreeing to undertake the things set forth in the
Agreement. Surely, one State can agree to waive jurisdiction—to

the extent agreed upon—to subjects of another State due to the
recognition of the principle of extraterritorial immunity.
Same; Same; Same; Same; Same; What the Agreement
contextually prohibits is the surrender by either party of
individuals to international tribunals, without the consent of the
other party, which may desire to prosecute the crime under its
existing laws.—Persons who may have committed acts penalized
under the 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 countries to the Rome Statute have been
met. For perspective, what the Agreement contextually prohibits
is 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 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 the Rome Statute.
Same; Same; Same; Same; In agreeing to conclude
the Agreement, then President Gloria Macapagal-Arroyo,
represented by the Secretary of Foreign Affairs, acted within the
scope of the authority and discretion vested in her by the
Constitution.—In thus agreeing to conclude the Agreement thru
E/N BFO-028-03, then
247
VOL. 641, FEBRUARY 1, 2011 247
President Gloria Macapagal-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
end of the day, the President––by ratifying, thru her deputies, the
non-surrender agreement––did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her
office.
Same; Same; Same; Same; Philippine Act on Crimes against
International Humanitarian Law, Genocide, and Other Crimes
against Humanity (Republic Act No. 9851); Nowhere in RA 9851 is
there a proviso that goes against the tenor of the Agreement.—RA
9851 clearly: (1) defines and establishes the crimes against
international humanitarian law, genocide and other crimes
against humanity; (2) provides penal sanctions and criminal
liability for their commission; and (3) establishes special courts
for the prosecution of these crimes and for the State to exercise
primary criminal jurisdiction. Nowhere in RA 9851 is there a
proviso that goes against the tenor of the Agreement.
Same; Same; Same; Same; The power to enter into executive
agreements has long been recognized to be lodged with the
President.—More importantly, an act of the executive branch with
a foreign government must be afforded great respect. The power
to enter into executive agreements has long been recognized to be
lodged with the President. x x x The rationale behind this
principle is the inviolable doctrine of separation of powers among
the legislative, executive and judicial branches of the government.
Thus, absent any clear contravention of the law, courts should
exercise utmost caution in declaring any executive agreement

invalid. In light of the above consideration, the position or view
that the challenged RP-US Non-Surrender Agreement ought to be
in the form of a treaty, to be effective, has to be rejected.
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 the
Philippine State’s obligation to prosecute persons responsible for
any of the international crimes of genocide, war crimes and other
crimes against humanity.—The RP-US Non-Surrender Agreement
(Agreement) violates existing municipal laws on the Philippine
State’s obligation
248
to prosecute persons responsible for any of the international

crimes of genocide, war crimes and other crimes against
humanity. Being a mere executive agreement that is indisputably
inferior to municipal law, the Agreement cannot prevail over a
prior or subsequent municipal law inconsistent with it.
Same; Same; Same; Philippine Act on Crimes against
International Humanitarian Law, Genocide, and Other Crimes
against Humanity (Republic Act No. 9851); View that Republic Act
No. 9851 requires that the RP-US Non-Surrender Agreement
should be ratified as a treaty by the Senate before the Agreement
can take effect.—Republic Act No. 9851 (RA 9851) or the
Philippine Act on Crimes Against International Humanitarian
Law, Genocide, and Other Crimes Against Humanity requires
that the RP-US Non-Surrender Agreement, which is in derogation
of the duty of the Philippines to prosecute those accused of grave
international crimes, should be ratified as a treaty by the Senate
before the Agreement can take effect.
Same; Same; Same; Same; View that the RP-US Non-
Surrender Agreement to be valid and effective must be ratified by
the Philippine Senate, and unless so ratified, the Agreement is
without force and effect.—Likewise, any derogation from the
surrender option of the Philippines under Section 17 of RA 9851
must be embodied in an applicable extradition law or treaty and
not in a mere executive agreement because such derogation
violates RA 9851, which is superior to, and prevails over, a prior
executive agreement allowing such derogation. Under no
circumstance can a mere executive agreement prevail over a prior
or subsequent law inconsistent with such executive agreement.
Thus, the RP-US Non-Surrender Agreement to be valid and
effective must be ratified by the Philippine Senate, and unless so
ratified, the Agreement is without force and effect.
SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari, Mandamus and Prohibition.
The facts are stated in the opinion of the Court.
Julius Garcia Matibag, Edre U. Olalia, Ephraim B.
Cortez for petitioner.
249
VOL. 641, FEBRUARY 1, 2011 249
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and prohibition

under Rule 65 assails and seeks to nullify the Non-
Surrender Agreement concluded by and between the
Republic of the Philippines (RP) and the United States of
America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list

group established to represent the marginalized sectors of
society. Respondent Blas F. Ople, now deceased, was the
Secretary of Foreign Affairs during the period material to
this case. Respondent Alberto Romulo was impleaded in his
capacity as then Executive Secretary.2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the

Rome Statute3 establishing the International Criminal
Court (ICC) with “the power to exercise its jurisdiction over
persons for the most serious crimes of international concern
x x x and shall be complementary to the national criminal
jurisdictions.”4 The serious crimes adverted to cover those
considered grave under international law, such as
genocide, crimes against humanity, war crimes, and crimes
of aggression.5
On December 28, 2000, the RP, through Charge
d’Affaires Enrique A. Manalo, signed the Rome Statute
which, by its terms, is “subject to ratification, acceptance or
approval” by
_______________
1 Rollo, pp. 241-265.

2 He is now the DFA Secretary.
3 Rollo, pp. 74-145.
4 Rome Statute, Art. 1.
5 Id., Art. 5.
250

the signatory states.6 As of the filing of the instant petition,

only 92 out of the 139 signatory countries appear to have
completed the ratification, approval and concurrence
process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J.

Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms
of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13,
2003 (E/N BFO-028-03, hereinafter), the RP, represented
by then DFA Secretary Ople, agreed with and accepted the

US proposals embodied under the US Embassy Note
adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it
refers to and defines as “persons” of the RP and US from
frivolous and harassment suits that might be brought
against them in international tribunals.8 It is reflective of
the increasing pace of the strategic security and defense
partnership between the two countries. As of May 2, 2003,
similar bilateral agreements have been effected by and
between the US and 33 other countries.9
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, “persons” are current or former

Government officials, employees (including contractors), or military
personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall
not, absent the express consent of the first Party,
_______________
6 Rome Statute, Article 125.

7 Rollo, pp. 68-69.
8 Id., at p. 72, Paper on the RP-US Non-Surrender Agreement.
9 Id., at p. 70.
251
VOL. 641, FEBRUARY 1, 2011 251

(a) be surrendered or transferred by any means to

any international tribunal for any purpose,
unless such tribunal has been established by
the UN Security Council, or
(b) be surrendered or transferred by any means to any other
entity or third country, or expelled to a third country, for
the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the
UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a
person of the Philippines to a third country, the [US] will not agree to the
surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of
the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a
person of the [USA] to a third country, the [GRP] will not agree to the
surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of
the [US].
5. This Agreement shall remain in force until one year after the date
on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the
effective date of termination.
In response to a query of then Solicitor General Alfredo

L. Benipayo on the status of the non-surrender agreement,
Ambassador Ricciardone replied in his letter of October 28,
2003 that the exchange of diplomatic notes constituted a
legally binding agreement under international law; and
that, under US law, the said agreement did not require the
advice and consent of the US Senate.10
In this proceeding, petitioner imputes grave abuse of
discretion to respondents in concluding and ratifying the
Agree-
_______________
10 Id., at p. 175.
252

ment and prays that it be struck down as unconstitutional,

or at least declared as without force and effect.
For their part, respondents question petitioner’s
standing to maintain a suit and counter that the
Agreement, being in the nature of an executive agreement,
does not require Senate concurrence for its efficacy. And for
reasons detailed in their comment, respondents assert the
constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY

x x x GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE
RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N]
BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE
GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE
OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY
THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement
Respondents gravely abused their discretion when they
capriciously abandoned, waived and relinquished our only
legitimate recourse through the Rome Statute of the [ICC]
to prosecute and try “persons” as defined in the x x x
Agreement, x x x or literally any conduit of American
interests, who 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 of the
Rome Statute of the [ICC] the [RP] President and the [DFA]
Secretary x x x are obliged by the principle of good faith to
refrain from doing all acts which would substantially
impair the value of the undertaking as signed.
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 contravenes the
obligation of good faith inherent in the signature of the
President affixed on the Rome Statute of the International
253
VOL. 641, FEBRUARY 1, 2011 253

Criminal Court, and if so whether the x x x Agreement is

void and unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement 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 AGREEMENT IS
VOID AB INITIO FOR CONTRACTING OBLIGATIONS THAT ARE
EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH
UNIVERSALLY RECOGNIZED PRINCIPLES OF
INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND
EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST
TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE
x x x.11
The foregoing issues may be summarized into two: first,

whether or not the Agreement was contracted validly,
which resolves itself into the question of whether or not
respondents gravely abused their discretion in concluding
it; and second, whether or not the Agreement, which has
not been submitted to the Senate for concurrence,
contravenes and undermines the Rome Statute and other
treaties. But because respondents expectedly raised it, we
shall first tackle the issue of petitioner’s legal standing.
The Court’s Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list 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
_______________
11 Id., at pp. 25-27.
254

this regard is what is usually referred to as the emergency

powers cases,12 in which ordinary citizens and taxpayers
were accorded the personality to question the
constitutionality of executive issuances.
Locus standi is “a right of appearance in a court of
justice on a given question.”13 Specifically, it is “a party’s
personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result”14 of the
act being challenged, and “calls for more than just a
generalized grievance.”15 The term “interest” refers to
material interest, as distinguished from one that is merely
incidental.16 The rationale for requiring a party who
challenges the validity of a law or international agreement
to allege such a personal stake in the outcome of the
controversy is “to assure the concrete adverseness which
sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult
constitutional questions.”17
Locus standi, however, is merely a matter of procedure

and it has been recognized that, in some cases, suits are
not brought by parties who have been personally injured by
the operation of a law or any other government act, but by
concerned citizens, taxpayers, or voters who actually sue in
the
_______________
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).
13 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489
SCRA 160.
14 Jumamil v. Café, G.R. No. 144570, September 21, 2005, 470 SCRA
475; citing Integrated Bar of the Philippines v. Zamora, G.R. No. 141284,
August 15, 2000, 338 SCRA 81.
15 Id.
16 Id.
17 Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161,
December 10, 2003, 417 SCRA 503; citing Baker v. Carr, 369 U.S. 186
(1962). See also Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000,
337 SCRA 733.
255
VOL. 641, FEBRUARY 1, 2011 255

public interest.18 Consequently, in a catena of cases,19 this

Court has invariably adopted a liberal stance on locus
standi.
Going by the petition, petitioner’s representatives
pursue the instant suit primarily as concerned citizens
raising issues of transcendental importance, both for the
Republic and the citizenry as a whole.
When suing as a citizen to question the validity of a law
or other government action, a petitioner needs 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 requirement, thus:
“In a long line of cases, however, concerned citizens, taxpayers

and legislators when specific requirements have been met have
been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing
the constitutionality of a statute must be direct and personal. He
must be able to show, not only that the law or any government act
is invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. In fine, when the
proceeding involves the assertion of a public right, the mere fact
that he is a citizen satisfies the requirement of personal
interest.”21
_______________
18 Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R.

Nos. 155001, 155547 & 155661, May 5, 2003, 402 SCRA 612.
19 Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005, 472
SCRA 515; Agan, Jr., supra note 18; Del Mar v. Philippine Amusement
and Gaming Corporation, G.R. No. 138298, November 29, 2000, 346 SCRA
485; Tatad v. Garcia, G.R. No. 114222, April 6, 1995, 243 SCRA 436;
Kilosbayan v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA
110.
20 G.R. No. 160261, November 10, 2003, 415 SCRA 45.
21 Id., at pp. 136-137.
256

In the case at bar, petitioner’s representatives have

complied with the qualifying conditions or specific
requirements exacted under the locus standi rule. As
citizens, their interest in the subject matter of the petition
is direct and personal. At the very least, their assertions
questioning the Agreement are made of a public right, i.e.,
to ascertain that the Agreement did not go against
established national policies, practices, and obligations
bearing on the State’s obligation to the community of
nations.
At any event, the primordial importance to Filipino
citizens in general of the issue at hand impels the Court to
brush aside the procedural barrier posed by the traditional
requirement of locus standi, as we have done in a long line
of earlier cases, notably in the old but oft-cited emergency
powers cases22 and Kilosbayan v. Guingona, Jr.23 In cases
of transcendental importance, we wrote again in Bayan v.
Zamora,24 “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.”
Moreover, bearing in mind what the Court said in
Tañada v. Angara, “that it will not shirk, digress from or
abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or
department of the government,”25 we cannot but resolve
head on the issues raised before us. Indeed, where an
action of any branch of government is seriously alleged to
have infringed the Constitution or is done with grave abuse
of discretion, it becomes not only the right but in fact the
duty of the judiciary to settle it. As in this petition, issues
are precisely raised putting to the fore the propriety of the
Agreement pending the ratification of the Rome Statute.
_______________
22 Supra note 12.

23 Supra note 19.
24 G.R. No. 138587, October 10, 2000, 342 SCRA 449.
25 G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49.
257
VOL. 641, FEBRUARY 1, 2011 257
Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against the Agreement

relates to form, its threshold posture being that E/N BFO-
028-03 cannot be a valid medium for concluding the
Agreement.
Petitioners’ contention––perhaps taken unaware of
certain well-recognized international doctrines, practices,
and jargons––is untenable. One of these is the doctrine of
incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally
accepted principles of international law and international
jurisprudence as part of the law of the land and adheres to
the policy of peace, cooperation, and amity with all
nations.26 An exchange of notes falls “into the category of
inter-governmental agreements,”27 which is an
internationally accepted form of international agreement.
The United Nations Treaty Collections (Treaty Reference
Guide) defines the term as follows:
An “exchange of notes” is a record of a routine agreement, that

has many similarities with the private law contract. The
agreement consists of the exchange of two documents, each of the
parties being in the possession of 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 departmental heads. The technique of
exchange of notes is frequently resorted to, either because of its
speedy procedure, or, sometimes, to avoid the process of
legislative approval.”28
In another perspective, the terms “exchange of notes”

and “executive agreements” have been used
interchangeably, exchange of notes being considered a form
of executive agree-
_______________
26 Cruz, Philippine Political Law 55 (1995).

27 Harris, Cases and Materials on International Law 801 (2004).
28 Official Website of the UN
<http://untreaty.un.org/English/guide.asp.>; cited in Abaya v. Ebdane,
G.R. No. 167919, February 14, 2007, 515 SCRA 720.
258

ment that becomes binding through executive action.29 On

the other hand, executive agreements concluded by the
President “sometimes take the form of exchange of notes
and at other times that of more formal documents
denominated ‘agreements’ or ‘protocols.’ ”30 As former US
High Commissioner to the Philippines Francis B. Sayre
observed in his work, The Constitutionality of Trade
Agreement Acts:
“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 ascertainment.”31 x x x
It is fairly clear from the foregoing disquisition that E/N

BFO-028-03––be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of
acceptance thereof or as consent to be bound––is a
recognized mode of concluding a legally binding
international written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of

Treaties defines a treaty as “an international agreement
concluded between states in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments and
whatever its particular designation.”32 International
agreements may be in the form of (1) treaties that require
legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, 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.
31 Cited in Commissioner of Customs v. Eastern Sea Trading, 113 Phil.
333; 3 SCRA 351 (1961).
32 Executive Order No. 459, dated November 25, 1997, contains a
similar definition.
259
VOL. 641, FEBRUARY 1, 2011 259

rence and are usually less formal and deal with a narrower
range of subject matters than treaties.33
Under international law, there is no difference between
treaties and executive agreements in terms of their binding
effects on the contracting states concerned,34 as long as the
negotiating functionaries have remained within their
powers.35 Neither, on the domestic sphere, can one be held
valid if it violates the Constitution.36 Authorities are,
however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement
aspect.37 As has been observed by US constitutional
scholars, a treaty has greater “dignity” than an executive
agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the
President, the Senate, and the people;38 a
_______________
33 B.A. Boczek, International Law: A Dictionary 346 (2005).

34 Bayan v. Zamora, supra note 24; citing Richard Erickson, “The
Making of Executive Agreements by the US Department of Defense,” 13
Boston U. Intl. L. J. 58 (1955); Randall, The Treaty Power, 51 Ohio St.
L.J., p. 4; see also Restatement (Third) of Foreign Relations Law § 301
(1987), which states that “[t]he terminology used for international
agreements is varied. Among the terms used are: treaty, convention,
agreement, protocol, covenant, charter, statute, act, declaration,

concordat, exchange of notes, agreed minute, memorandum of
agreement, memorandum of understanding, and modus vivendi. Whatever
their designation, all agreements have the same legal status, except as
their provisions or the circumstances of their conclusion indicate
otherwise.” (Emphasis supplied.)
35 Id., at p. 489; citing 5 Hackworth, Digest of International Law 395;
cited in USAFE Veterans Association Inc. v. Treasurer of the Philippines,
105 Phil. 1030, 1037 (1959).
36 Reid v. Covert, 354 U.S. 77 S. Ct.1230.
37 In the US constitutional system, it is the legal force of treaties and
executive agreements on the domestic plane.
38 Henkin, Foreign Affairs and the United States Constitution 224
(2nd ed., 1996).
260

ratified treaty, unlike an executive agreement, takes

precedence over any prior statutory enactment.39
Petitioner parlays the notion that the Agreement is of
dubious validity, partaking as it does of the nature of a
treaty; hence, it must be duly concurred in by the Senate.
Petitioner takes a cue from Commissioner of Customs v.
Eastern Sea Trading, in which the Court 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 character
usually take the form of treaties [while] those embodying
adjustments of detail carrying out well established national
policies and traditions and those involving arrangements of
a more or less temporary nature take the form of executive
agreements.” 40
Pressing its point, petitioner submits that the subject of
the Agreement does not fall under any of the subject-
categories that are enumerated in the Eastern Sea Trading
case, and that may be covered by an executive agreement,
such as commercial/consular relations, most-favored nation
rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and settlement of
claims.
In addition, petitioner foists the applicability to the
instant case of Adolfo v. CFI of Zambales and Merchant,41
holding that an executive agreement through an exchange
of notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be
covered by international agreements mentioned in Eastern
Sea Trad-
_______________
39 Prof. Edwin Borchard, Treaties and Executive Agreements—Reply,

Yale Law Journal, June 1945; cited in Justice Antonio T. Carpio’s Dissent
in Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11,
2009, 578 SCRA 438.
40 No. L-14279, October 31, 1961, 3 SCRA 351, 356.
41 No. L-30650, July 31, 1970, 34 SCRA 166.
261
VOL. 641, FEBRUARY 1, 2011 261

ing is not cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject, into a treaty
or an executive agreement as an instrument of
international relations. The primary consideration in the
choice of the form of agreement is the parties’ intent and
desire to craft an international 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 binding effect of the enforcement of a
treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt
servanda42 principle.
As may be noted, almost half a century has elapsed since
the Court rendered its decision in Eastern Sea Trading.
Since then, the conduct of foreign affairs has become more
complex and the domain of international law wider, as to
include such subjects as human rights, the environment,
and the sea. In fact, in the US alone, the executive
agreements executed by its President from 1980 to 2000
covered subjects such as defense, trade, scientific
cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and
_______________
42 Latin for “agreements must be kept,” Black’s Law Dictionary (8th

ed., 2004). The principle of pacta sunt servanda, in its most common sense,
refers to private contracts, stressing that these pacts and clauses are the
law between the parties, and implying that the non-fulfilment of
respective obligations is a breach of the pact.
With regard to international agreements, Art. 26 of the Vienna
Convention on the Law of Treaties (signed on May 23, 1969 and entered
into force on January 27, 1980) states that “every treaty in 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 treaties implies that a party to the treaty cannot
invoke provisions of its domestic law as justification for a failure to
perform. The only limit to pacta sunt servanda is jus cogens (Latin for
“compelling law”), the peremptory norm of general international law.
262

nuclear safety, among others.43 Surely, the enumeration in

Eastern Sea Trading cannot circumscribe the option of each
state on the matter of which the international agreement
format would be convenient to serve its best interest. As
Francis Sayre said in his work referred to earlier:
“x x x It would be useless to undertake to discuss here the large

variety of executive agreements as such concluded from time to
time. Hundreds of executive agreements, other than those entered
into under the trade-agreement act, have been negotiated with
foreign governments. x x x They 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 registration of trademarks and copyrights, etc. x x x”
And lest it be overlooked, one type of executive

agreement is a treaty-authorized44 or a treaty-
implementing executive agreement,45 which necessarily
would cover the same matters subject of the underlying
treaty.
But over and above the foregoing considerations is the
fact that––save for the situation and matters contemplated
in Sec. 25, Art. XVIII of the Constitution46––when a treaty
is required, the Constitution does not classify any subject,
like that involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely
prescribes is
_______________
43 Oona A. Hathaway, Presidential Power Over International Law:

Restoring the Balance, 119 YLJ 140, 152 (2009).
44 Rotunda, Nowak and Young, Treatise on Constitutional Law 394;
cited in then Chief Justice Puno’s dissent in Bayan v. Zamora, supra.
45 Nicolas, supra note 39.
46 Sec. 25. After the expiration in 1991 of the [RP-US Military Bases
Agreement] foreign military bases, troops, or facilities shall not be allowed
in the Philippines except under a treaty duly concurred in by the Senate,
and when Congress so requires, ratified x x x in a national referendum
held for that purpose, and recognized as a treaty by the contracting state.
263
VOL. 641, FEBRUARY 1, 2011 263

that treaties need the concurrence of the Senate by a vote

defined therein to complete the ratification process.
Petitioner’s reliance on Adolfo47 is misplaced, said case
being inapplicable owing to different factual milieus. There,
the Court held that an executive agreement cannot be used
to amend a duly ratified 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 be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of the
Executive and the Senate. The presence of a treaty,
purportedly being subject to amendment by an executive
agreement, does not obtain under the premises.
Considering the above discussion, the Court need 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 has, in Eastern Sea Trading,48 as
reiterated in Bayan,49 given recognition to the obligatory
effect of executive agreements without the concurrence of
the Senate:
“x x x [T]he right of the Executive to enter into binding

agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest
days of our history, we have entered executive agreements
covering such subjects as commercial and consular relations, most

favored-nation rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and the
settlement of claims. The validity of these has never been
seriously questioned by our courts.”
_______________
47 Supra note 39.

48 Supra note 41.
49 Supra note 31.
264

The Agreement Not in Contravention

of the Rome Statute
It is the petitioner’s next contention that the Agreement
undermines the establishment of the ICC and is null and
void insofar as it unduly restricts the ICC’s jurisdiction and
infringes upon the effectivity of the Rome Statute.
Petitioner posits that the Agreement was constituted solely
for the purpose of providing individuals or groups of
individuals with immunity from the jurisdiction of the ICC;
and such 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 from
meeting their obligations under the Rome Statute, thereby
constituting a breach of Arts. 27,50 86,51 8952
_______________
50 Article 27
Irrelevance of official capacity
511. This Statue shall apply equally to all persons without any
distinction based on official capacity. In particular, official capacity as a
Head of State or Government, a member of a Government or parliament,
an elected representative or a government official shall in no case exempt
a person from criminal responsibility under this Statute, nor shall it, in
and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the
official capacity of a person, whether under national or international law,
shall not bar the Court from exercising its jurisdiction over such a person.
Article 86
General Obligation to Cooperate
States Parties shall, in accordance with the provisions of this Statute,
cooperate fully with the Court in its investigation and prosecution of
crimes within the jurisdiction of the Court.
52 Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of
a person, together with the material supporting the request outlined in
article 91, to any State on the territory of which that person may be found
and shall request the cooperation of that State in the arrest and surrender
of such a person. States Parties shall, in accordance with the provisions of
this Part
265
VOL. 641, FEBRUARY 1, 2011 265

and 9053 thereof.
_______________
and the procedure under their national law, comply with requests for
arrest and surrender.
2. Where the person sought for surrender brings a challenge before a
national court on the basis of the principle of neb is in idem as provided in
article 20, the requested State shall immediately consult with the Court to
determine if there has been a relevant ruling on admissibility. If the case
is admissible, the requested State shall proceed with the execution of the
request. If an admissibility ruling is pending, the requested State may
postpone the execution of the request for surrender of the person until the
Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national
procedural law, transportation through its territory of a person being
surrendered to the Court by another State, except where transit through
that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in
accordance with article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal
characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the
period of transit;
(d) No authorization is required if the person is transported by air
and no landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit
State, that State may require a request for transit from the Court as
provided for in subparagraph (b). The transit State shall detain the person
being transported until the request for transit is received and the transit
is effected, provided that detention for purposes of this subparagraph may
not be extended beyond 96 hours from the unscheduled landing unless the
request is received within that time.
4. If the person sought is being proceeded against or is serving a
sentence in the requested State for a crime different from that for which
surrender to the Court is sought, the requested State, after making its
decision to grant the request, shall consult with the Court.
53 Article 90
Competing requests
1. A State Party which receives a request from the Court for the
surrender of a person under article 89 shall, if it also receives a request
from any other State for the extradition of the same person for the same
conduct which forms the basis of the crime for which the Court seeks the
person’s surrender, notify the Court and the requesting State of that fact.
266

Petitioner stresses that the overall object and purpose of

the Rome Statute is to ensure that those responsible for the
_______________
2. Where the requesting State is a State Party, the requested State

shall give priority to the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination

that the case in respect of which surrender is sought is admissible and
that determination takes into account the investigation or prosecution
conducted by the requesting State in respect of its request for extradition;
or
(b) The Court makes the determination described in subparagraph (a)
pursuant to the requested State’s notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made,
the requested State may, at its discretion, pending the determination of
the Court under paragraph 2 (b), proceed to deal with the request for
extradition from the requesting State but shall not extradite the person
until the Court has determined that the case is inadmissible. The Court’s
determination shall be made on an expedited basis.
4. If the requesting State is a State not Party to this Statute the
requested State, if it is not under an international obligation to extradite
the person to the requesting State, shall give priority to the request for
surrender from the Court, if the Court has determined that the case is
inadmissible.
5. Where a case under paragraph 4 has not been determined to be
admissible by the Court, the requested State may, at its discretion,
proceed to deal with the request for extradition from the requesting State.
6. In cases where paragraph 4 applies except that the requested
State is under an existing international obligation to extradite the person
to the requesting State not Party to this Statute, the requested State shall
determine whether to surrender 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;
(b) The interests of the requesting State including, where relevant,
whether the crime was committed in its territory and 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 Court for
the surrender of a person also receives a request from any State for the
extradition of the same person for conduct other than that which
constitutes the crime for which the Court seeks the person’s surrender:
(a) The requested State shall, if it is not under an existing
international obligation to extradite the person to the requesting State,
give priority to the request from the Court;
267
VOL. 641, FEBRUARY 1, 2011 267

worst possible crimes are brought to justice in all cases,

primarily by states, but as a last resort, by the ICC; thus,
any agreement—like the non-surrender agreement—that
precludes the ICC from exercising its complementary
function of acting when a state is unable to or unwilling to
do so, defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA
Secretary, as representatives of a signatory of the Rome
Statute, are obliged by the imperatives of good faith to
refrain from performing acts that substantially devalue the
purpose and object of the Statute, as signed. Adding a
nullifying ingredient to the Agreement, according to
petitioner, is the fact that it has an immoral purpose or is
otherwise at variance with a priorly executed treaty.
Contrary to petitioner’s pretense, the Agreement does
not contravene or undermine, nor does it differ from, the
Rome Statute. Far from going against each other, one

complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As
aptly pointed out by respondents and admitted by
petitioners, the jurisdiction of the ICC is to “be
complementary to national criminal jurisdictions [of the
signatory states].”54 Art. 1 of the Rome Statute pertinently
provides:
_______________
(b) The requested State shall, if it is under an existing international

obligation to extradite the person to the requesting State, determine
whether to surrender the person to the Court or to 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 those set out
in paragraph 6, but shall 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 extradition to the
requesting State is refused, the requested State shall notify the Court of
this decision.
54 Tenth preambular paragraph of the ICC Statute.
268

Article 1
The Court
“An International Crimininal Court (“the Court”) is hereby
established. It x x x shall have the power to exercise its
jurisdiction over persons for the most serious crimes of
international concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute.” (Emphasis ours.)
Significantly, the sixth preambular paragraph of the

Rome Statute declares that “it is the duty of every State to
exercise its criminal jurisdiction over those responsible for
international crimes.” This provision 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
Statute.
Of particular note is the application of the principle of ne
bis in idem56 under par. 3 of Art. 20, Rome Statute, which
_______________
55 1. Having regard to paragraph 10 of the Preamble and Article 1,

the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has
jurisdiction over it, unless the State is unwilling or unable genuinely to
carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction
over it and the State has decided not to prosecute the person concerned,
unless the decision resulted from the unwillingness or inability of the
State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is
the subject of the complaint, and a trial by the Court is not permitted
under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the
Court.
56 Latin for “not twice for the same,” a legal principle that means no
legal action can be instituted twice for the same cause of
269
VOL. 641, FEBRUARY 1, 2011 269

again underscores the primacy of the jurisdiction of a state

vis-a-vis that of the ICC. As far as relevant, the provision
states that “no person who has been tried by another court
for conduct x x x [constituting crimes within its
jurisdiction] shall be tried by the [International Criminal]
Court with respect to the same conduct x x x.”
The foregoing provisions of the Rome Statute, taken
collectively, argue against the idea of jurisdictional conflict
between the Philippines, as party to the non-surrender
agreement, and the ICC; 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 abundantly clear to us that the Rome Statute expressly
recognizes the primary jurisdiction of states, like the RP,
over serious crimes committed within their respective
borders, the complementary jurisdiction of the ICC coming
into play only when the signatory states are unwilling or
unable to prosecute.
Given the above consideration, petitioner’s suggestion––
that the RP, by entering into the Agreement, violated its
duty required by the imperatives of good faith and
breached its commitment under the Vienna Convention57
to refrain from performing any act tending to impair the
value of a treaty, e.g., the Rome Statute––has to be rejected
outright. For nothing in the provisions of the Agreement, in
relation to the Rome Statute, tends to diminish the efficacy
of the Statute, let alone defeats the purpose of the ICC.
Lest it be overlooked, the
_______________
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 object
and purpose of a treaty when: (a) it has signed the treaty or has
exchanged instruments constituting the treaty subject to ratification,
acceptance or approval, until it shall have made its intention clear not to
become a party to the treaty; or (b) it has expressed its consent to be
bound by the treaty, pending the entry into force of the treaty and
provided that such entry into force is not unduly delayed.
270

Rome Statute contains a proviso that enjoins the ICC 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) of the Rome Statute, which
reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender
which would require the requested State to act inconsistently
with its obligations under international agreements pursuant to
which the consent of a sending State is required to surrender a
person of that State to the Court, unless the Court can first obtain
the cooperation of the sending State for the giving of consent for
the surrender.”
Moreover, under international law, there is a

considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the
Law of Treaties, a signatory state is only obliged to refrain
from acts which would defeat the object and purpose of a
treaty;58 whereas a State-Party, on the other hand, is
legally obliged to follow all the provisions of a treaty in
good faith.
In the instant case, it bears stressing that the
Philippines is only a signatory to the Rome Statute and not
a State-Party for lack of ratification by the Senate. Thus, it
is only obliged to refrain from acts which would defeat the
object and purpose of the Rome Statute. Any argument
obliging the Philippines to follow any provision in the
treaty would be premature.
As a result, petitioner’s argument that State-Parties
with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute,
specifically Arts. 27, 86,
_______________
58 Vienna Convention on the Law of Treaties, Art. 18.
271
VOL. 641, FEBRUARY 1, 2011 271

89 and 90, must fail. These articles are only legally binding
upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would
show that the Agreement is not incompatible with the Rome
Statute. Specifically, Art. 90(4) provides that “[i]f the
requesting State is a State not Party to this Statute the
requested State, if it is not under an international
obligation to extradite the person to the requesting State,
shall give priority to the request for surrender from the
Court. x x x” In applying the provision, certain undisputed
facts should be pointed out: first, the US is neither a State-
Party nor a signatory to the Rome Statute; and second,
there is an international agreement between the US and
the Philippines regarding extradition or surrender of
persons, i.e., the Agreement. Clearly, even assuming that
the Philippines is a State-Party, the Rome Statute still

recognizes the primacy of international agreements entered
into between States, even when one of the States is not a
State-Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the

Agreement, abdicated its sovereignty by bargaining away
the jurisdiction of the ICC to prosecute US nationals,
government officials/employees or military personnel who
commit serious crimes of international concerns in the
Philippines. Formulating petitioner’s argument a bit
differently, the RP, by entering into the Agreement, does
thereby abdicate its sovereignty, abdication being done by
its waiving or abandoning its right to seek recourse
through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a
form of affirmance and confirmance of the Philippines’
national criminal jurisdiction. National criminal
jurisdiction being primary, as explained above, it is always
the responsibility and within the prerogative of the RP
either to prosecute
272

criminal offenses equally covered by the Rome 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 opt not to exercise its criminal
jurisdiction over its 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
“persons” of the US whom the Philippines refuses to
prosecute, the country would, in effect, accord discretion to
the US to exercise either its national criminal jurisdiction
over the “person” concerned or to give its consent to the
referral of the matter to the ICC for trial. In the same
breath, the US must extend the same privilege to the
Philippines with respect to “persons” of the RP committing
high crimes within US territorial jurisdiction.
In the context of the Constitution, there can be no
serious objection to the Philippines agreeing to undertake
the things set forth in the Agreement. Surely, one State can
agree to waive jurisdiction—to the extent agreed upon—to
subjects of another State due to the recognition of the
principle of extraterritorial immunity. What the Court
wrote in Nicolas v. Romulo59—a case involving the
implementation of the criminal jurisdiction provisions of
the RP-US Visiting Forces Agreement—is apropos:
“Nothing in the Constitution prohibits such agreements

recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and
members of the armed forces contingents of a foreign 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 some
of its provisions constitute a virtual abdication of its
sovereignty. Almost every time a state enters into an
international agree-
_______________
59 Supra note 39.
273
VOL. 641, FEBRUARY 1, 2011 273

ment, it voluntarily sheds off part of its sovereignty. The

Constitution, as drafted, did not envision a reclusive
Philippines isolated from the rest of the world. It even
adheres, as earlier stated, to the policy of cooperation and
amity with all nations.60
By their nature, treaties and international agreements
actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their
voluntary act, nations may decide to surrender or waive
some aspects of their state power or agree to limit the
exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this
partial surrender may be the greater benefits derived from
a pact or a reciprocal undertaking of one contracting party
to grant the same privileges or immunities to the other. On
the rationale that the Philippines has adopted the
generally accepted principles of international law as part of
the law of the land, a portion of sovereignty may be waived
without violating the Constitution.61 Such waiver does not
amount to an unconstitutional diminution or deprivation of
jurisdiction of Philippine courts.62
Agreement Not Immoral/Not at Variance

with Principles of International Law
Petitioner urges that the Agreement be struck down as

void ab initio for imposing immoral obligations and/or
being at variance with allegedly universally recognized
principles of international law. The immoral aspect
proceeds from the fact that the Agreement, as petitioner
would put it, “leaves criminals immune from responsibility
for unimaginable atrocities that deeply shock the
conscience of humanity; x x x it pre-
_______________
60 Constitution, Art. II, Sec. 2.

61 Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.
62 Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948); cited in
Agpalo, Public International Law 222-223 (2006).
274

cludes our country from delivering an American criminal to

the [ICC] x x x.”63
The above argument is a kind of recycling of petitioner’s
earlier position, which, as already discussed, contends that
the RP, by entering into the Agreement, virtually abdicated
its sovereignty and in the process undermined its treaty
obligations under the Rome Statute, contrary to
international law principles.64
The Court is not persuaded. Suffice it to state in this
regard that the non-surrender agreement, as aptly
described by the Solicitor General, “is an assertion by the
Philippines of its desire to try and punish crimes under its
national law. x x x The agreement is a recognition of the
primacy and competence of the country’s judiciary to try
offenses under its national criminal laws and dispense
justice fairly and judiciously.”
Petitioner, we believe, labors under the erroneous
impression that the Agreement would allow Filipinos and
Americans committing high crimes of international concern
to escape criminal trial and punishment. This is manifestly
incorrect. Persons who may have committed acts penalized
under the 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 countries to the
Rome Statute have been met. For perspective, what the
Agreement contextually prohibits is the surrender by either
party of individuals
_______________
63 Rollo, pp. 53-54.

64 Under Vienna Convention on the Law of Treaties, Art. 18, a State
has the obligations not to defeat the object and purpose of a treaty prior to
its entry into force when (a) it has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to become a party
to the treaty; or (b) it has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that such entry
into force is not unduly delayed.
275
VOL. 641, FEBRUARY 1, 2011 275

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 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 the Rome Statute.
No Grave Abuse of Discretion
Petitioner’s final point revolves around the necessity of

the Senate’s concurrence in the Agreement. And without
specifically saying so, petitioner would argue that the non-
surrender agreement was executed by the President, thru
the DFA Secretary, in grave abuse of discretion.
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 virtually faults the
President for performing, through respondents, a task
conferred the President by the Constitution—the power to
enter into international agreements.
By constitutional fiat and by the nature of his or her
office, the President, as head of state and government, is
the sole organ and authority in the external affairs of the
country.65 The Constitution vests in the President the
power to enter into international agreements, subject, in
appropriate cases, to the required concurrence votes of the
Senate. But as earlier indicated, executive agreements may
be validly entered into without such concurrence. As 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
_______________
65 Bayan v. Zamora, supra.
276

right of the President to enter into or ratify binding

executive agreements has been confirmed by long
practice.66
In thus agreeing to conclude the Agreement thru E/N
BFO-028-03, then President Gloria Macapagal-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 end of the day, the
President––by ratifying, thru her deputies, the non-
surrender agreement––did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains
to her office.
While the issue of ratification of the Rome Statute is not
determinative of the other issues raised herein, it may
perhaps be pertinent to remind all and sundry that about
the time this petition was interposed, such issue of
ratification was laid to rest in Pimentel, Jr. v. Office of the
Executive Secretary.67 As the Court emphasized in said
case, the power to ratify a treaty, the Statute in that
instance, rests with the President, subject to the
concurrence of the Senate, whose role relative to the
ratification of a treaty is limited merely to concurring in or
withholding the ratification. And concomitant with this
treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or
having secured the latter’s consent to the ratification of the
treaty, refuse to ratify it.68 This prerogative, the Court
hastened to add, is the President’s alone and cannot be
encroached upon via a writ of mandamus. Barring
intervening events, then, the Philippines remains to be just
a signatory to the Rome Statute. Under Art. 12569 thereof,
the final acts
_______________
66 Id.; citing Commissioner of Customs, supra.

67 G.R. No. 158088, July 6, 2005, 462 SCRA 622.
68 Id., at pp. 637-638; citing Cruz, International Law 174 (1998).
69 Signature, ratification, acceptance, approval or accession.
1. This Statute shall be open for signature by all States in Rome, at
the headquarters of the Food and Agriculture Organization of the United
Nations, on 17 July 1998. Thereafter, it shall remain
277
VOL. 641, FEBRUARY 1, 2011 277

required to complete the treaty process and, thus, bring it

into force, insofar as the Philippines is concerned, have yet
to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed

into law Republic Act No. (RA) 9851, otherwise known as
the “Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against
Humanity.” Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:
“Section 17. Jurisdiction.—x x x x

In the interest of justice, the relevant Philippine authorities
may dispense with the investigation or prosecution of a crime
punishable under this Act if another court or international
tribunal is already conducting the investigation or undertaking
the prosecution of such crime. Instead, the authorities may
surrender or extradite suspected or accused persons in the
Philippines to the appropriate international court, if any,
or to another State pursuant to the applicable extradition
laws and treaties.” (Emphasis supplied.)
A view is advanced that the Agreement amends existing

municipal laws on the State’s obligation in relation to grave
crimes against the law of nations, i.e., genocide, crimes
_______________
open for signature in Rome at the Ministry of Foreign Affairs of Italy until
17 October 1998. After that date, the Statute shall remain open for
signature in New York, at United Nations Headquarters, until 31
December 2000.
2. This Statute is subject to ratification, acceptance or approval by

signatory States. Instruments of ratification, acceptance or approval shall
be deposited with the Secretary-General of the United Nations.
3. This Statute shall be open to accession by all States. Instruments
of accession shall be deposited with the Secretary-General of the United
Nations.
278

against humanity and war crimes. Relying on the above-

quoted statutory proviso, the view posits that the
Philippine is required to surrender to the proper
international tribunal those persons accused of the grave

crimes defined under RA 9851, if it does not exercise its
primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it
does not decide to prosecute a foreign national for
violations of RA 9851, the Philippines has only two options,
to wit: (1) surrender the accused to the proper international
tribunal; or (2) surrender the accused to another State if
such surrender is “pursuant to the applicable extradition
laws and treaties.” But the Philippines may exercise these
options only in cases where “another court or international
tribunal is already conducting the investigation or
undertaking the prosecution of such crime;” otherwise, the
Philippines must prosecute the crime before its own courts
pursuant to RA 9851.
Posing the situation of a US national under prosecution
by an international tribunal for any crime under RA 9851,
the Philippines has the option to surrender such US
national to the international tribunal if it decides not to
prosecute such US national here. The view asserts that this
option of the Philippines under Sec. 17 of RA 9851 is not
subject to the consent of the US, and any derogation of Sec.
17 of RA 9851, such as requiring the consent of the US
before the Philippines can exercise such option, requires an
amendatory law. In line with this scenario, the view
strongly argues that the Agreement prevents the
Philippines—without the consent of the US—from
surrendering to any international tribunal US nationals
accused of crimes covered by RA 9851, and, thus, in effect
amends Sec. 17 of RA 9851. Consequently, the view is
strongly impressed that the 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.
279
VOL. 641, FEBRUARY 1, 2011 279

Moreover, consonant with the foregoing view, citing Sec.

2, Art. II of the Constitution, where the Philippines adopts,
as a national policy, the “generally accepted principles
of international law as part of the law of the land,”
the Court is further impressed to perceive the Rome
Statute as declaratory of customary international law. In
other words, the Statute embodies principles of law which
constitute customary international law or custom and for
which reason it assumes the status of an enforceable
domestic law in the context of the aforecited constitutional
provision. As a corollary, it is argued that any derogation
from the Rome Statute principles cannot be undertaken via
a mere executive agreement, which, as an exclusive act of
the executive branch, can only implement, but cannot
amend or repeal, an existing law. The Agreement, so the
argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the
Rome Statute.
Prescinding from the foregoing premises, the view thus
advanced considers the Agreement inefficacious, unless it is
embodied in a treaty duly ratified with the concurrence of
the Senate, the theory being that a Senate—ratified treaty
partakes of the nature of a municipal law that can amend

or supersede another law, in this instance Sec. 17 of RA
9851 and the status of the Rome Statute as constitutive of
enforceable domestic law under Sec. 2, Art. II of the
Constitution.
We are unable to lend cogency to the view thus taken.
For one, we find that the Agreement does not amend or is
repugnant to RA 9851. For another, the view does not
clearly state what precise principles of law, if any, the
Agreement alters. And for a third, it does not demonstrate
in the concrete how the Agreement seeks to frustrate the
objectives of the principles of law subsumed in the Rome
Statute.
Far from it, as earlier explained, the Agreement does not
undermine the Rome Statute as the former merely
reinforces the primacy of the national jurisdiction of the US
and the Philippines in prosecuting criminal offenses
committed by
280

their respective citizens and military personnel, among

others. The jurisdiction of the ICC pursuant to the Rome
Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal
jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes
the crimes against international humanitarian law,
genocide and other crimes against humanity;70 (2) provides
penal sanctions and criminal liability for their
commission;71 and (3) establishes special courts for the
prosecution of these crimes and for the State to exercise
primary criminal jurisdiction.72 Nowhere in RA 9851 is
there a proviso that goes against the tenor of the
Agreement.
The view makes much of the above quoted second par. of
Sec. 17, RA 9851 as requiring the Philippine State to
surrender to the proper international tribunal those
persons accused of crimes sanctioned under said law if it
does not exercise its primary jurisdiction to prosecute such
persons. This view is not entirely correct, for the above
quoted proviso clearly provides discretion to the
Philippine State on whether to surrender or not a person
accused of the crimes under RA 9851. The statutory proviso
uses the word “may.” It is settled doctrine in statutory
construction that the word “may” denotes discretion, and
cannot be construed as having mandatory effect.73 Thus,
the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.
Besides, even granting that the surrender of a person is
mandatorily required when the Philippines does not
exercise its primary jurisdiction in cases where “another
court or in-
_______________
70 RA 9851, Secs. 4-6.

71 Id., Secs. 7-12.
72 Id., Secs. 17-18.
73 Republic Planters Bank v. Agana, Sr., G.R. No. 51765, May 3, 1997,
269 SCRA 1, 12.
281
VOL. 641, FEBRUARY 1, 2011 281

ternational tribunal is already conducting the investigation

or undertaking the prosecution of such crime,” still, the
tenor of the Agreement is not repugnant to Sec. 17 of RA
9851. Said legal proviso aptly provides that the surrender
may be made “to another State pursuant to the applicable
extradition laws and treaties.” The Agreement can already
be 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 international law and
constitutes enforceable domestic law vis-à-vis the United
States.”76
Likewise, the Philippines and the US already have an
existing extradition treaty, i.e., RP-US Extradition Treaty,
which was executed on November 13, 1994. The pertinent
Philippine law, on the other hand, is Presidential Decree
No. 1069, issued on January 13, 1977. Thus, the
Agreement, in conjunction with the RP-US Extradition
Treaty, would neither violate nor run counter to Sec. 17 of
RA 9851.
The view’s reliance on Suplico v. Neda77 is similarly
improper. In that case, several petitions were filed
questioning the power of the President to enter into foreign
loan agreements. However, before the petitions could be
resolved by the Court, the Office of the Solicitor General
filed a Manifestation and Motion averring that the
Philippine Government decided not to continue with the
ZTE National Broadband Network Project, thus rendering
the petition moot. In resolving the case, the Court took
judicial notice of the act of the executive department of the
Philippines (the President) and found the petition to be
indeed moot. Accordingly, it dismissed the petitions.
_______________
74 Supra note 39.

75 456 U.S. 25 (1982).
76 Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February
11, 2009, 578 SCRA 438, 467.
77 G.R. No. 178830, July 14, 2008, 558 SCRA 329.
282

In his dissent in the abovementioned case, Justice

Carpio discussed the legal implications of an executive
agreement. He stated that “an executive agreement has the
force and effect of law x x x [it] cannot amend or repeal
prior laws.”78 Hence, this argument finds no application in
this case seeing as RA 9851 is a subsequent law, not a prior
one. Notably, this argument cannot be found in the ratio

decidendi of the case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition
Treaty is inapplicable to RA 9851 for the reason that under
par. 1, Art. 2 of the RP-US Extradition Treaty, “[a]n offense
shall be an extraditable offense if it is punishable under
the laws in both Contracting Parties x x x,”79 and
thereby concluding that while the Philippines has
criminalized under RA 9851 the acts defined in the Rome
Statute as war crimes, genocide and other crimes against
humanity, there is no similar legislation in the US. It is
further argued that, citing U.S. v. Coolidge, in the US, a
person cannot be tried in the federal courts for an
international crime unless Congress adopts a law defining
and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation
punishing the high crimes mentioned earlier. In fact, as
early as October 2006, the US enacted a law criminalizing
war crimes. Section 2441, Chapter 118, Part I, Title 18 of
the United States Code Annotated (USCA) provides for the
criminal offense of “war crimes” which is similar to the war
crimes found in both the Rome Statute and RA 9851, thus:
(a) Offense—Whoever, whether inside or outside the United States,

commits a war crime, in any of the circumstances described in
subsection (b), shall be fined under this title or im-
_______________
78 Id., at p. 376. (Emphasis supplied.)

79 Par. 1, Art. 2, RP-US Extradition Treaty, Senate Resolution No. 11,
November 27, 1995 (emphasis supplied).
283
VOL. 641, FEBRUARY 1, 2011 283

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 (a) are
that the person committing such war crime or the victim of such war
crime is a member of the Armed Forces of the United States or a
national of the United States (as defined in Section 101 of the
Immigration and Nationality 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 international
conventions signed at Geneva 12 August 1949, or any
protocol to such convention to which the United States is a
party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of
War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as
defined in subsection [d]) when committed in the context of
and in association with an armed conflict not of an
international character; or
(4) Of a person who, in relation to an armed conflict and
contrary to the provisions of the Protocol on Prohibitions or
Restrictions on the Use of Mines, 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 civilians.80
Similarly, in December 2009, the US adopted a law that

criminalized genocide, to wit:
§1091. Genocide
(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—
_______________
80 18 U.S.C.A. § 2441.
284

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of
members of the group through drugs, torture, or similar
techniques;
(4) subjects the group to conditions of life that are intended to cause
the physical destruction of the group in whole or in part;
(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
Arguing further, another view has been advanced that

the current US laws do not cover every crime listed within
the jurisdiction of the ICC and that there is a gap between
the definitions of the different crimes under the US laws
versus the Rome Statute. The view used a report written
by Victoria K. Holt and Elisabeth W. Dallas, entitled “On
Trial: The US Military and the International Criminal
Court,” as its basis.
At the outset, it should be pointed out that the report
used may not have any weight or value under international
law. Article 38 of the Statute of the International Court of
Justice (ICJ) lists the sources of international law, as
follows: (1) international conventions, whether general or
particular, establishing rules expressly recognized by the
contesting states; (2) international custom, as evidence of a
general practice accepted as law; (3) the general principles
of law recognized by civilized nations; and (4) subject to the
provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the
determination of rules of law. The report does not fall
under any of the foregoing enumerated sources. It cannot
even be considered as the “teachings of highly qualified
publicists.” A highly qualified publicist is a
_______________
81 18 U.S.C.A. § 1091.
285
VOL. 641, FEBRUARY 1, 2011 285

scholar of public international law and the term usually

refers to legal scholars or “academic writers.”82 It has not
been shown that the authors83 of this report are highly
qualified publicists.
Assuming arguendo that the report has weight, still, the
perceived gaps in the definitions of the crimes are non-
existent. To highlight, the table below shows the
definitions of genocide and war crimes under the Rome
Statute vis-à-vis the definitions under US laws:
_______________
82 Malcolm Shaw, International Law 112 (2008).

83 Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US Military and the
International Criminal Court,” The Henry L. Stimson Center, Report No. 55, March 2006, p.
92; available at <http://www.stimson.org/images/uploads/research-pdfs/US_Military_

and_the_ICC_FINAL_website.pdf> last visited January 27, 2011. We quote Holt and Dallas’
profiles from the report:
Victoria K. Holt is a senior associate at the Henry L. Stimson Center, where she co-
directs the Future of Peace Operations program. She has co-authored a study of peacekeeping
reforms at the United Nations, analyzing the implementation of the 2000 Brahimi Report
recommendations, and recently completed reports on African capacity for peace operations and
the protection of civilians by military forces. Ms. Holt joined the Stimson Center in 2001,
bringing policy and political expertise on UN and peacekeeping issues from her work at the US
Department of State, in the NGO community and on Capitol Hill. She served as Senior Policy
Advisor at the US State Department (Legislative Affairs), where she worked with Congress on
issues involving 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 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 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 honors from Wesleyan University.
Elisabeth W. Dallas is a research associate with the Henry L. Stimson Center’s Future of
Peace Operations program and is focusing her work on the restoration of the rule of law in
post-conflict settings. In particular, she is analyzing what legal mechanisms are required to
allow for international criminal jurisdiction within UN 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 she served as a political and legal advisor for parties
during international peace negotiations taking place in the Middle East, the Balkans and
South Asia. Ms. Dallas earned an MA from Tufts University’s Fletcher School of Law &
Diplomacy with a concentration in International Negotiation & Conflict Resolution and Public
International Law, as well as a Certificate in Human Security and Rule of Law. She earned her
BA from Haverford College. (Emphasis supplied.)
286

Rome Statute US Law

Article 6 §1091. Genocide
Genocide (a) Basic Offense—
For the purpose of this Whoever, whether in the time
Statute, “genocide” means of peace or in time of war and
any of the following acts with specific intent to
committed with intent to destroy, in whole or in

destroy, in whole or in part, substantial part, a national,
a national, ethnical, racial or ethnic, racial or religious
religious group, as such: group as such–
(a) Killing members of the
group; (1) kills members of that
(b) Causing serious bodily or group;
mental harm to members of
the group;
(2) causes serious bodily
(c) Deliberately inflicting injury to members of that
on the group conditions of group;
life calculated to bring about
its physical destruction in
whole or in part; (3) causes the permanent
(d) Imposing measures impairment of the mental
intended to prevent births faculties of members of the
within the group; group through drugs, torture,
or similar techniques;
(e) Forcibly transferring
children of the group to
another group. (4) subjects the group to
conditions of life that are
intended to cause the
physical destruction of the
group in whole or in part;
(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).
Article 8War Crimes (d) Definition—As used in

2. For the purpose of this this Section the term “war
crime” means any conduct—
Statute, “war crimes” means:
(a) Grave breaches of the (1) Defined as a grave breach
Geneva Conventions of 12 in any of the international
con-ventions signed at Geneva
August 1949, namely, any of
the following acts against 12 August 1949, or any
persons or property protected protocol to such convention to
under the provisions of the which the United States is a
party;
relevant Geneva Con-
(2) Prohibited by Article 23,
25,
287
VOL. 641, FEBRUARY 1, 2011 287

27 or 28 of the Annex to
84
vention: x x x the Hague Convention IV,
(b) Other serious violations of the Respecting the Laws and
laws and customs applicable in Customs of War on Land,
international armed conflict, signed 18 October 1907;
within the established framework (3) Which constitutes a
of international law, namely, any grave breach of common
of the following acts: Article 3 (as defined in
subsection [d]85) when

committed in
_______________
84 (i) Willful killing;

(ii) Torture or inhuman treatment, including biological experiments;
(iii) Willfully causing great suffering, or serious injury to body or health;

(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;
(vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and
regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.
85 (d) Common Article 3 violations.—
(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 Article 3 of the
international conventions done at Geneva August 12, 1949), as follows:
(A) Torture.—The act of a person who commits, or conspires or attempts to

commit, an act specifically intended to inflict severe physical or mental pain or
suffering (other than pain or suffering incidental to lawful sanctions) 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.
(B) Cruel or inhuman treatment.—The act of a person who commits, or 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 to lawful sanction), including
serious physical abuse, upon another within his custody or control.
(C) Performing biological experiments.—The act of a person who subjects, or

conspires or attempts to subject, one or more person within his custody or physical
control to biological experiments without a legitimate medical or dental purpose and in
so doing endangers the body or health of such person or persons.

(D) Murder.—The act of a person who 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 other cause.
(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 other cause, by disfiguring the person or persons
by any mutilation
288

xxxx the context of and in

(c) In the case of an armed associate with an armed
conflict not of an international conflict not of an
character, serious violations of international character; or
article 3 common to the four (4) Of a person who, in
Geneva Conventions of 12 relation to an armed conflict
August 1949, namely, any of the and contrary to the
following acts committed provisions of the Protocol on
against persons taking no active Prohibitions or Restrictions
part in the hostilities, including on the Use of Mines, Booby-
members of armed forces who Traps and Other Devices as
have laid down their arms and amended at Geneva on 3
those placed hors de combat by May 1996 (Protocol II as
sickness, wounds, detention or amended on 3 May 1996),

any other cause: when the United States is a
party to such Protocol,
willfully kills or causes
serious
_______________
thereof or by permanently disabling any member, limb, or organ of his body,
without any legitimate medical or dental purpose.

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

(G) Rape.—The act of a person who forcibly or with coercion or threat of force
wrongfully invades, or conspires or attempts to invade, the body of a person by
penetrating, however slightly, the anal or genital opening of the victim with any part
of the body of the accused, or with any foreign object.

(H) Sexual assault or abuse.—The act of a person who forcibly or with coercion or
threat of force engages, or conspires or attempts to engage, in sexual contact with one
or more persons, or causes, or conspires or attempts to cause, one or more persons to

engage in sexual contact.
(I) Taking hostages.—The act of a person who, having knowingly seized or
detained one or more persons, threatens to kill, injure, or continue to detain such
person or persons with the intent of compelling any nation, 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 person or persons.

(2) Definitions.—In the case of an offense under subsection (a) by reason of subsection (c)
(3)—
(A)the term “severe mental pain or suffering” shall be applied for purposes of
paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in
section 2340 (2) of this title;
(B) the term “serious bodily injury” shall be applied for purposes of paragraph (1)
(F) in accordance with the meaning given that term in section 113 (b)(2) of this title;
(C) the term “sexual contact” shall be applied for purposes of paragraph (1)(G) in
accordance with the meaning given that term in section 2246 (3) of this title;
(D) the term “serious physical pain or suffering” shall be applied for purposes of
paragraph (1)(B) as meaning bodily injury that involves—
(i) a substantial risk of death;

(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than
cuts, abrasions, or bruises); or

(iv) a significant loss or impairment of the function of a bodily member,
organ, or mental faculty; and
289
VOL. 641, FEBRUARY 1, 2011 289

xxxx injury to
86
(d) Paragraph 2 (c) applies to armed conflicts not civilians.
of an international character and thus does not
apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts
of violence or other acts of a similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not of an
international character, within the established
framework of international law, namely, any of
the following acts: x x x.
Evidently, the gaps pointed out as to the definition of the

crimes are not present. In fact, the report itself stated as
much, to wit:
“Few believed there were wide differences between the crimes

under the jurisdiction of the Court and crimes within the Uniform
Code of Military Justice that would expose US personnel to the
Court. Since US military lawyers were instrumental in drafting
the
_______________
E) the term “serious mental pain or suffering” shall be applied for purposes of paragraph
(1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as
defined in section 2340(2) of this title), except that —

(i) the term “serious shall replace the term “sever” where it appears; and
(ii) as to conduct occurring after the date of the enactment of the Military
Commissions Act of 2006, the term “serious and non-transitory mental harm (which
need not be prolonged)” shall replace the term “prolonged mental harm” where it
appears.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of

lawful attack.—The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or
paragraph (1) precludes the applicability of those subparagraphs to an offense under
subsection (A) by reasons of subsection (C)(3) with respect to—

(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.
(4) Inapplicability of taking hostages to prisoner exchange.—Paragraph (1)(I) does not

apply to an offense under subsection (A) by reason of subsection (C)(3) in the case of a prisoner
exchange during wartime.

(5) Definition of grave breaches.—The definitions in this subsection are intended only to
define the grave breaches of common Article 3 and not the full scope of United States
obligations under that Article.

86 18 U.S.C.A. § 2441.
290

elements of crimes outlined in the Rome Statute, they ensured

that most of the crimes were consistent with those outlined in the
UCMJ and gave strength to complementarity for the US. Small
areas of potential gaps between the UCMJ and the Rome Statute,
military experts argued, could be addressed through existing
military laws.87 x x x”
The report went on further to say that “[a]ccording to

those involved, the elements of crimes laid out in the Rome
Statute have been part of US military doctrine for
decades.”88 Thus, the argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic
legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice Gray
in The Paquete Habana89 case already held international
law as part of the law of the US, to wit:
“International law is part of our law, and must be

ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right depending
upon it are duly presented for their determination. For this
purpose, where there is no treaty and no controlling executive or
legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations, and, as evidence of these,
to the works of jurists and commentators who by years of labor,
research, and experience have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works are
resorted to by judicial tribunals, not for the speculations of their

authors concerning what the law ought to be, but for the
trustworthy evidence of what the law really is.”90 (Emphasis
supplied.)
Thus, a person can be tried in the US for an

international crime despite the lack of domestic legislation.
The cited ruling
_______________
87 Victoria K. Holt and Elisabeth W. Dallas, supra note 83, at p. 7.

88 Id., at p. 35.
89 175 U.S. 677, 20 S.Ct. 290 (1900).
90 Id., at p. 700; citing Hilton v. Guyot, 159 U.S. 113, 163, 164, 214,
215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.
291
VOL. 641, FEBRUARY 1, 2011 291

in U.S. v. Coolidge,91 which in turn is based on the holding

in U.S. v. Hudson,92 only applies to common law and not to
the law of nations or international law.93 Indeed, the Court
in U.S. v. Hudson only considered the question, “whether
the Circuit Courts of the United States can exercise a
common law jurisdiction in criminal cases.”94 Stated
otherwise, there is no common law crime in the US but this
is considerably different from international law.
The US doubtless recognizes international law as part of
the law of the land, necessarily including international
crimes, even without any local statute.95 In fact, years
later, US courts would apply international law as a source
of criminal liability despite the lack of a local statute
criminalizing it as such. So it was that in Ex Parte
Quirin96 the US Supreme Court noted that “[f]rom the
very beginning of its history this Court has recognized and
applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status,
rights and duties of enemy nations as well as of enemy
individuals.”97 It went on further to explain
_______________
91 14 U.S. 415, 1816 WL 1770 (U.S.Mass.) (1816).

92 11 U.S. (7 Cranch) 32 (1812).
93 Jordan J. Paust, Customary International Law and Human Rights
Treaties are Law of the United States, 20 MIJIL 301, 309 (1999).
94 11 U.S. (7 Cranch) 32, 32 (1812).
95 “x x x [C]ustomary international law is part of the law of the United
States to the limited extent that, where there is no treaty, and no
controlling executive or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations.” U.S. v. Yousef, 327
F.3d 56, 92 (2003).
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 v. Newport Ins.
Co., 4 Cranch 185, 199, 2 L.Ed. 591; The Rapid, 8 Cranch 155, 159-164, 3
L.Ed. 520; The St. Lawrence, 9 Cranch 120, 122, 3 L.Ed. 676; Thirty
Hogsheads of Sugar v. Boyle, 9 Cranch 191,
292

that Congress had not undertaken the task of codifying the

specific offenses covered in the law of war, thus:
“It is no objection that Congress in providing for the trial of

such offenses has not itself undertaken to codify that
branch of international law or to mark its precise
boundaries, or to enumerate or define by statute all the
acts which that law condemns. An Act of Congress punishing
‘the crime of piracy as defined by the 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 Similarly by the reference in the 15th Article of War to
‘offenders or offenses that x x x by the law of war may be triable
by such military commissions. Congress has incorporated by
reference, as within the jurisdiction of military commissions, all
offenses which are defined as such by the law of war x x x, and
which may constitutionally be included within that
jurisdiction.”98 x x x (Emphasis supplied.)
This rule finds an even stronger hold in the case of

crimes against humanity. It has been held that genocide,
war crimes and crimes against humanity have attained the
status of customary international law. Some even go so far
as to state that these crimes have attained the status of jus
cogens.99
_______________
197, 198, 3 L.Ed. 701; The Anne, 3 Wheat. 435, 447, 448, 4 L.Ed. 428;
United States v. Reading, 18 How. 1, 10, 15 L.Ed. 291; Prize Cases (The
Amy Warwick), 2 Black 635, 666, 667, 687, 17 L.Ed. 459; The Venice, 2
Wall. 258, 274, 17 L.Ed. 866; The William Bagaley, 5 Wall. 377, 18 L.Ed.
583; Miller v. United States, 11 Wall. 268, 20 L.Ed. 135; Coleman v.
Tennessee, 97 U.S. 509, 517, 24 L.Ed. 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.
98 Id., at pp. 29-30.
99 Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Merits, I.C.J. judgment, February 26, 2007, § 161; M. Cherif
Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes,
59-AUT Law & Contemp. Probs. 63, 68.
293
VOL. 641, FEBRUARY 1, 2011 293

Customary international law or international custom is

a source of international law as stated in the Statute of the
ICJ.100 It is defined as the “general and consistent practice
of states recognized and followed by them from a sense of
legal obligation.”101 In order to establish the customary
status of a 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 the
same or similar kind of acts or norms by States.103 It is
demonstrated upon the existence of the following elements:
(1) generality; (2) uniformity and consistency; and (3)
duration.104 While, opinio 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
requiring it.”105
“The term ‘jus cogens’ means the ‘compelling law.’ ”106
Corollary, “a jus cogens norm holds the highest hierarchical
position among all other customary norms and
principles.”107 As a result, jus cogens norms are deemed
“peremptory and non-
_______________
100 I.C.J. Statute, art. 38, ¶ 1 (b) international custom, as evidence of

a general practice accepted as law.
101 North Sea Continental Shelf, 1969 I.C.J. ¶ 77; cited in Patrick
Simon S. Perillo, Transporting the Concept of Creeping Expropriation from
De Lege Ferenda to De Lege Lata: Concretizing the Nebulous Under
International Law, 53 Ateneo L.J. 434, 509-510 (2008).
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.,
dissenting).
104 Fisheries Jurisdiction (U.K. v. Ice) (Merits), 1974 I.C.J. 3, 89-90 (de
Castro, J., separate opinion).
105 North Sea Continental Shelf, 1969 I.C.J. ¶ 77.
106 M. Cherif Bassiouni, International Crimes: Jus Cogens and
Obligatio Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 67.
107 Id.
294

derogable.”108 When applied to international crimes, “jus

cogens crimes have been deemed so fundamental to the
existence of a just international legal order that states
cannot derogate from them, even by agreement.”109
These jus cogens crimes relate to the principle of
universal jurisdiction, i.e., “any state may exercise
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 committed
is so egregious that it is considered to be committed against
all members of the international community”111 and thus
granting every State jurisdiction over the crime.112
Therefore, even with the current lack of domestic
legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try
these crimes.
Consequently, no matter how hard one insists, the ICC,
as an international tribunal, found in the Rome Statute is
not declaratory of customary international law.
The first element of customary international law, i.e.,

“established, widespread, and consistent practice on the
part of States,”113 does not, under the premises, appear to
be obtaining as reflected in this simple reality: As of
October 12, 2010,
_______________
108 Id.
109 Carlee M. Hobbs, The Conflict Between the Alien Tort Statute
Litigation and Foreign Amnesty Laws, 43 Vand. J. Transnat’l L. 505, 521
(2009-2010); citing Jeffrey L. Dunoff, et al., International Law: Norms,
Actors Process 58-59 (2d ed., 2006).
110 Id.; citing Jeffrey L. Dunoff et al., International Law: Norms,
Actors Process 380 (2d ed., 2006).
111 Id.
112 Id.
113 Pharmaceutical and Health Care Association of the Philippines v.
Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA 265.
295
VOL. 641, FEBRUARY 1, 2011 295

only 114114 States have ratified the Rome Statute,

subsequent to its coming into force eight (8) years earlier,
or on July 1, 2002. The fact that 114 States out of a total of
194115 countries in the world, or roughly 58.76%, have
ratified the Rome Statute casts doubt on whether or not the
perceived principles contained in the Statute have attained
the status of customary law and should be deemed as
obligatory international law. The numbers even tend to
argue against the urgency of establishing international
criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or
inaction of its top officials, does not even feel bound by the
Rome Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative signed the
Statute, but the treaty has not been transmitted to the
Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said
respecting the application of the concurring elements, thus:
“Custom or customary international law means “a general and

consistent practice of states followed by them from a sense of legal
obligation [opinio juris] x x x.” This statement contains the two
basic elements of custom: the material factor, that is how the
states behave, and the psychological factor or subjective factor,
that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the
actual behavior of states. This includes several elements:
duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
_______________
114 See <http://www.icc-cpi.int/Menus/ASP/states+parties/> (last visited

January 26, 2011).
115 <http://www.nationsonline.org oneworld /states.org> (last visited October
18, 2010). The list does not include dependent territories.
296

Duration therefore is not the most important element. More

important is the consistency and the generality of the practice.
xxx
xxxx
Once the existence of state practice has been
established, it becomes necessary to determine why states
behave the way they do. Do states behave the way they do
because they consider it obligatory to behave thus or do they do it
only as a matter of courtesy? Opinio juris, or the belief that a
certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.”116 (Emphasis
added.)
Evidently, there is, as yet, no overwhelming consensus,

let alone prevalent practice, among the different countries
in the world that the prosecution of internationally
recognized crimes of genocide, etc. should be handled by
a particular international criminal court.
Absent the widespread/consistent-practice-of-states
factor, the second or the psychological element must be
deemed non-existent, for an inquiry on why states behave
the way they do presupposes, in the first place, that they
are actually behaving, as a matter of settled and consistent
practice, in a certain manner. This implicitly requires belief
that the 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.
Further, the Rome Statute itself rejects the concept of
universal jurisdiction over the crimes enumerated therein
as evidenced by it requiring State consent.118 Even further,
the
_______________
116 Joaquin G. Bernas, S.J., An Introduction to Public International

Law 10-13 (2002); cited in Pharmaceutical and Health Care Association of
the Philippines v. Duque III, supra note 113, at p. 292.
117 Pharmaceutical and Health Care Association of the Philippines,
supra note 113, at pp. 290-291; citation omitted.
118 Article 12. Preconditions to the exercise of jurisdiction.
297
VOL. 641, FEBRUARY 1, 2011 297

Rome Statute specifically and unequivocally requires that:

“This Statute is subject to ratification, acceptance or
approval by signatory States.”119 These clearly negate the
argument that such has already attained customary status.
More importantly, an act of the executive branch with a
foreign government must be afforded great respect. The
power to enter into executive agreements has long been
recognized to be lodged with the President. As We held in
Neri v. Senate Committee on Accountability of Public
Officers and Investigations, “[t]he power to enter into an
executive agreement is in essence an executive power. This

authority of the President to enter into executive
agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine
120
jurisprudence.” The rationale behind this principle is the
inviolable doctrine of separation of powers among the
legislative, executive and judicial branches of the
government. Thus, absent any clear contravention of the
law, courts should exercise utmost caution in declaring any
executive agreement invalid.
_______________
1. A State which becomes a Party to this Statute thereby accepts the

jurisdiction of the Court with respect to the crimes referred to in article 5.
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 Parties to
this Statute or have accepted the jurisdiction of the Court in accordance
with paragraph 3:
(a) The State on the territory of which the conduct in question
occurred or, if the crime was committed on board a vessel or
aircraft, the State of registration of that vessel or aircraft.
(b) The State of which the person accused of the crime is a
national.
119 Rome Statute of the International Criminal Court, Art. 25, par. 2.
120 G.R. No. 180643, September 4, 2003, 564 SCRA 152, 197-198.
298

In light of the above consideration, the position or view

that the challenged RP-US Non-Surrender Agreement
ought to be in the form of a treaty, to be effective, has to be
rejected.
WHEREFORE, the petition for certiorari, mandamus
and prohibition is hereby DISMISSED for lack of merit. No
costs.
SO ORDERED.
Corona (C.J), Nachura, Leonardo-De Castro, Peralta,

Bersamin, Del Castillo, Abad, Villarama, Jr., Perez and
Mendoza, JJ., concur.
Carpio, J., See Dissenting Opinion.
Carpio-Morales, J., I join the Dissent of J. Carpio.
Brion, J., No Part.
Sereno, J., I concur in the result.
DISSENTING OPINION
CARPIO, J.:
I dissent.
The RP-US Non-Surrender Agreement (Agreement)
violates existing municipal laws on the Philippine State’s
obligation to prosecute persons responsible for any of the
international crimes of genocide, war crimes and other
crimes against humanity. Being a mere executive
agreement that is indisputably inferior to municipal law,
the Agreement cannot prevail over a prior or subsequent
municipal law inconsistent with it.
First, under existing municipal laws arising from the
incorporation doctrine in Section 2, Article II of the
Philippine Constitution,1 the State is required to surrender

to the proper
_______________
1 Constitution (1987), Art. II, Sec. 2 provides: “The Philippines xxx

adopts the generally accepted principles of international law as
part of the law of the land and adheres to the
299
VOL. 641, FEBRUARY 1, 2011 299

international tribunal persons accused of grave

international crimes, if the State itself does not exercise its
primary jurisdiction to prosecute such persons.
Second, and more importantly, Republic Act No. 9851
(RA 9851) or the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other
Crimes Against Humanity requires that the RP-US Non-
Surrender Agreement, which is in derogation of the duty of
the Philippines to prosecute those accused of grave
international crimes, should be ratified as a treaty by the
Senate before the Agreement can take effect.
Section 2 of RA 9851 adopts as a State policy the
following:
“Section 2. Declaration of Principles and State Policies.—

(a) x x x
xxx
(e) The most serious crimes of concern to the international
community as a whole must not go unpunished and their effective
prosecution must be ensured by taking measures at the national
level, in order to put an end to impunity for the perpetrators of
these crimes and thus contribute to the prevention of such crimes,
it being the duty of every State to exercise its criminal
jurisdiction over those responsible for international
crimes.” (Emphasis supplied)
To implement this State policy, Section 17 of RA 9851

provides:
“Section 17. Jurisdiction.—The State shall exercise jurisdiction

over persons, whether military or civilian, suspected or accused of a
crime defined and penalized in this Act, regardless of where the crime is
committed, provided, any one of the following conditions is met:
(a) The accused is a Filipino citizen;
_______________
policy of peace, equality, justice, freedom, cooperation, and

amity with all nations.”
300

(b) The accused, regardless of citizenship or

residence, is present in the Philippines; or
(c) The accused has committed the said crime against a Filipino
citizen.
In the interest of justice, the relevant Philippine authorities may

dispense with the investigation or prosecution of a crime punishable
under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of
such crime. Instead, the authorities may surrender or extradite
suspected or accused persons in the Philippines to the
appropriate international court, if any, or to another State
pursuant to the applicable extradition laws and treaties.”
(Boldfacing, italicization and underscoring supplied)
Section 2(e) and Section 17 impose on the Philippines

the “duty” to prosecute a person present in the Philippines,
“regardless of citizenship or residence” of such person, who
is accused of committing a crime under RA 9851
“regardless of where the crime is committed.” The
Philippines is expressly mandated by law to prosecute the
accused before its own courts.
If the Philippines decides not to prosecute such accused,
the Philippines has only two options. First, it may
surrender the accused to the “appropriate international
court” such as the International Criminal Court (ICC). Or
second, it may surrender the accused to another State if
such surrender is “pursuant to the applicable
extradition laws and treaties.” Under the second option,
the Philippines must have an applicable extradition law
with the other State, or both the Philippines and the other
State must be signatories to an applicable treaty. Such
applicable extradition law or treaty must not frustrate the
Philippine State policy, which embodies a generally
accepted principle of international law, that it is “the duty
of every State to exercise its criminal jurisdiction over
those responsible for international crimes.”
In any case, the Philippines can exercise either option
only if “another court or international tribunal is
already conducting the investigation or undertaking
the prose-
301
VOL. 641, FEBRUARY 1, 2011 301

cution of such crime.” In short, the Philippines should

surrender the accused to another State only if there is
assurance or guarantee by the other State that the accused
will be prosecuted under the other State's criminal justice
system. This assurance or guarantee springs from the
principle of international law that it is “the duty of every
State to exercise its criminal jurisdiction over those
responsible for international crimes.”
There is at present no “applicable” extradition
law or treaty allowing the surrender to the United
States of U.S. nationals accused of crimes under RA
9851, specifically, Crimes against International
Humanitarian Law or War Crimes,2
_______________
2 Section 4 of RA 9851 provides:

Section 4. War Crimes.—For the purpose of this Act, “war crimes” or
“crimes against International Humanitarian Law” means:
(a) In case of an international armed conflict , grave breaches of the

Geneva Conventions of 12 August 1949, namely, any of the following acts
against persons or property protected under provisions of the relevant
Geneva Convention:
(1) Willful killing;
(2) Torture or inhuman treatment, including biological experiments;
(3) Willfully causing great suffering, or serious injury to body or
health;
(4) Extensive destruction and appropriation of property not justified
by military necessity and carried out unlawfully and wantonly;
(5) Willfully depriving a prisoner of war or other protected person of
the rights of fair and regular trial;
(6) Arbitrary deportation or forcible transfer of population or
unlawful confinement;
(7) Taking of hostages;
(8) Compelling a prisoner a prisoner of war or other protected person
to serve in the forces of a hostile power; and
(9) Unjustifiable delay in the repatriation of prisoners of war or other
protected persons.
(b) In case of a non-international armed conflict, serious violations
of common Article 3 to the four (4) Geneva Conventions of 12 August
1949, namely, any of the following acts committed against persons taking
no active part in the hostilities, including member of the armed forces
who have laid down their arms and those placed hors de combat by
sickness, wounds, detention or any other cause;
(1) Violence to life and person, in particular, willful killings,
mutilation, cruel treatment and torture;
(2) Committing outrages upon personal dignity, in particular,
humiliating and degrading treatment;
(3) Taking of hostages; and
(4) The passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court,
affording all judicial guarantees which are generally recognized as
indispensable.
(c) Other serious violations of the laws and customs applicable in
armed conflict, within the established framework of international law,
namely:
(1) Intentionally directing attacks against the civilian population as
such or against individual civilians not taking direct part in hostilities;
(2) Intentionally directing attacks against civilian objects, that is,
object which are not military objectives;
(3) Intentionally directing attacks against buildings, material,
medical units and transport, and personnel using the distinctive
emblems of the Geneva Conventions or Additional Protocol III in
conformity with intentional law;
(4) Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to civilians or
civilian objects under the international law of armed conflict;
(5) Launching an attack in the knowledge that such attack will
cause incidental loss of life or injury to civilians or damage to civilian
objects or widespread, long-term and severe damage to the natural
environment which would be excessive in relation to the concrete and
direct military advantage anticipated;
302

Genocide,3 and Other Crimes
_______________
(6) Launching an attack against works or installations containing

dangerous forces in the knowledge that such attack will cause excessive
loss of life, injury to civilians or damage to civilian objects, and causing
death or serious injury to body or health.
(7) Attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings which are undefended and which are not military
objectives, or making non-defended localities or demilitarized zones the
object of attack;
(8) Killing or wounding a person in the knowledge that he/she is hors
de combat, including a combatant who, having laid down his/her arms or
no longer having means of defense, has surrendered at discretion;
(9) Making improper use of a flag of truce, of the flag or the military
insignia and uniform of the enemy or of the United Nations, as well as of
the distinctive emblems of the Geneva Conventions or other protective
signs under International Humanitarian Law, resulting in death, serious
personal injury or capture;
(10) Intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives. In case of doubt
whether such building or place has been used to make an effective
contribution to military action, it shall be presumed not to be so used;
(11) Subjecting persons who are in the power of an adverse party to
physical mutilation or to medical or scientific experiments of any kind, or
to removal of tissue or organs for transplantation, which are neither
justified by the medical, dental or hospital treatment of the person
concerned nor carried out in his/her interest, and which cause death to or
seriously endanger the health of such person or persons;
(12) Killing, wounding or capturing an adversary by resort to perfidy;
(13) Declaring that no quarter will be given;
(14) Destroying or seizing the enemy’s property unless such
destruction or seizure is imperatively demanded by the necessities of war;
(15) Pillaging a town or place, even when taken by assault;
(16) Ordering the displacement of the civilian population for reasons
related to the conflict, unless the security of the civilians involved or
imperative military reasons so demand;
(17) Transferring, directly or indirectly, by the occupying power of
parts of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory;
(18) Committing outrages upon personal dignity, in particular,
humiliating and degrading treatment;
(19) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence also
constituting a grave breach of the Geneva Conventions or a serious
violation of common Article 3 to the Geneva Conventions;
(20) Utilizing the presence of a civilian or other protected person to
render certain points, areas or military forces immune from military
operations;
(21) Intentionally using starvation of civilians as a method of warfare
by depriving them of objects indispensable to their survival, including
willfully impeding relief supplies as provided for under the Geneva
Conventions and their Additional Protocols;
(22) In an international armed conflict, compelling the nationals of
the hostile party to take part in the operations of war directed against
their own country, even if they were in the belligerent’s service before the
commencement of the war;
(23) In an international armed conflict, declaring abolished,
suspended or inadmissible in a court of law the rights and actions of the
nationals of the hostile party;
(24) Committing any of the following acts:
(i) Conscripting, enlisting or recruiting children under the age of

fifteen (15) years into the national armed forces;
(ii) Conscripting, enlisting or recruiting children under the age of
eighteen (18) years into an armed force or group other than the national
armed forces; and
(iii) Using children under the age of eighteen (18) years to participate
actively in hostilities; and
(25) Employing means of warfare which are prohibited under
international law, such as:
(i) Poison or poisoned weapons;
(ii) Asphyxiating, poisonous or other gases, and all analogous liquids,
materials or devices;
(iii) Bullets which expand or flatten easily in the human body, such as
bullets with hard envelopes which do not entirely cover the core or are
pierced with incisions; and
(iv) Weapons, projectiles and material and methods of warfare which
are of the nature to cause superfluous injury or unnecessary suffering or
which are inherently indiscriminate in violation of the international law of
armed conflict.
xxxx
Section 5. Genocide.—(a) For the purpose of this Act, “genocide”
means any of the following acts with intent to destroy, in whole or in part,
a national, ethnic, racial, religious, social or any other similar stable and
permanent group as such:
(1) Killing members of the group;
(2) Causing serious bodily or mental harm to members of the group;
303
VOL. 641, FEBRUARY 1, 2011 303

against Humanity.4
The RP-US Extradition Treaty cannot be considered an
applicable extradition law or treaty. Paragraph 1, Article 2
of the RP-US Extradition Treaty provides: “An offense shall
be an extraditable offense if it is punishable under the
laws in both Contracting Parties xxx.”5
The rule in the United States is that a person cannot be
tried in the federal courts for an international crime unless
the U.S. Congress adopts a law defining and punishing the
_______________
(3) Deliberately inflicting on the group conditions of life calculated to

bring about its physical destruction in whole or in part;
(4) Imposing measures intended to prevent births within the group;
and
(5) Forcibly transferring children of the group to another group.
(b) It shall be unlawful for any person to directly and publicly incite
others to commit genocide.
xxxx
Section 6. Other Crimes Against Humanity.—For the purpose of this
Act, “other crimes against humanity” means any of the following acts
when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:
(a) Willful killing;
(b) Extermination;
(c) Enslavement;
(d) Arbitrary deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in

violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of comparable
gravity;
(h) Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender, sexual
orientation or other grounds that are universally recognized as
impermissible under international law, in connection with any act
referred to in this paragraph or any crime defined in this Act;
(i) Enforced or involuntary disappearance of persons;
(j) Apartheid; and
(k) Other inhumane acts of a similar character intentionally causing
great suffering, or serious injury to body or to mental or physical health.
xxxx
5 Emphasis supplied.
304

offense.6 In Medellin v. Texas,7 the U.S. Supreme Court

held that “while treaties ‘may comprise international
commitments ... they are not domestic law unless
Congress has either enacted implementing statutes
or the treaty itself conveys an intention that it be
self-executing’ and is ratified on these terms.” The
U.S. Congress has not enacted legislation to implement the
Geneva Conventions of 1949 (Geneva Conventions)8 which
is one of the foundations of the principles of International
Humanitarian Law. While the U.S. Senate has ratified the
Geneva Conventions,9 the ratifi-
_______________
6 U.S. v. Coolidge, 14 U.S. 415, 1816 WL 1770 (U.S. Mass.) 4 L.Ed. 124,
1 Wheat. 415.
7 552 U.S. 491, 128 S. Ct. 1346 (2008).
8 The Geneva Conventions of 12 August 1949 consists of four
Conventions or International Agreements:
Convention I—for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field. (1864);
Convention II—for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea (1906);
Convention III—Relative to the Treatment of Prisoners of War (1929);
and
Convention IV—Relative to the Protection of Civilian Persons in Time
of War (1949).
There are three Protocols to the Geneva Conventions:
Protocol I—Relating to the Protection of Victims of International
Armed Conflicts, 8 June 1977;
Protocol II—Relating to the Protection of Victims of Non-International
Armed Conflicts, 8 June 1977; and
Protocol III—Relating to the Adoption of an Additional Distinctive
Emblem, 8 December 2005.
See http://www.icrc.org/web/eng/siteeng0.nsf/html/genevaconventions;
last visited on 21 July 2010.
9 The U.S. ratified the Geneva Conventions of 1949 on 02 August 1955;
the U.S. made Reservations on 02 August 1955, 04 March 1975, and 31
December 1974.
Seehttp://www.icrc.org/ihl.nsf/NORM/D6B53F5B5D14F35AC1256402003F9920?
Open
Document; last visited on 21 July 2010.
305
VOL. 641, FEBRUARY 1, 2011 305

cation was not intended to make the Geneva Conventions

self-executing under U.S. domestic law.10
The United States has not ratified the Rome Statute of
International Criminal Court (Rome Statute). While the
Philippines has also not ratified the Rome Statute, it has
criminalized under RA 9851 all the acts defined in the
Rome Statute as Genocide, War Crimes and Other Crimes
against Humanity. There is no similar legislation in
the United States.
Not all crimes punishable under the Rome Statute are
considered crimes under U.S. laws. A report11 based partly
on interviews with representatives of the U.S. delegation in
Rome stated: “The domestic laws of the United States xxx
do not cover every crime listed within the jurisdiction of the
[International Criminal] Court.”12 The report further
explained
_______________
10 In Medellin v. Texas, supra note 7, the U.S. Supreme Court

emphasized:
“This Court has long recognized the distinction between treaties that
automatically have effect as domestic law, and those that—while they
constitute international law commitments—do not by themselves function
as binding federal law. xxx a treaty is ‘equivalent to an act of the
legislature,’ and hence self-executing, when it ‘operates of itself without
the aid of any legislative provision.’ x x x When, in contrast, ‘[treaty]
stipulations are not self-executing they can only be enforced pursuant to
legislation to carry them into effect.’” (Citations omitted)
11 Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US
Military and the International Criminal Court,” The Henry L. Stimson
Center, Report No. 55, March 2006; available at http://www.
stimson.org/fopo/pdf/US_Military_and_the_ICC_FINAL_website.pdf; last
visited on 02 August 2010.
This is a Report issued by the Henry Stimson Center which is described
as a nonprofit, nonpartisan institution devoted to enhancing international
peace and security through a unique combination of rigorous analysis and
outreach. It has a stated mission of “urging pragmatic steps toward the
ideal objectives of international peace and security.” See
http://www.stimson.org/ about/?sn=AB2001110
512; last visited on 11 August 2010.
12 Id., at pp. 34-35.
306

the gap between the definitions of Genocide, War Crimes

and Other Crimes against Humanity, under the Rome
Statute and under U.S. domestic laws, in this wise:13
ICC Statute in Contrast to the US Code

In conversations with both proponents and opponents of the

Court, many suggested that while the US has objected to the
Court’s potential authority over US service members, what really
lies behind that concern is the recognition that those most
vulnerable to the scrutiny of the Court are notably higher up in
the chain of command: the civilian and senior military leadership.
Legal experts, both in the military and outside, pointed out that
there were more likely to be “gaps” between the US Code and the
Rome Statute than gaps with the Uniform Code of Military
Justice. After retirement, military personnel are not covered by
the UCMJ, but instead would be held accountable to the US Code,
in particular Title 10 and Title 18. For some retired military
personnel, this was an area of some concern.
These individuals offered that former leaders, in
particular the “Henry Kissingers of the world,” are most at
risk. Indeed, they stressed that as the main concern for the
US: that the Court will take up cases of former senior
civilian leadership and military officials who, acting under
the laws of war, are no longer covered by the UCMJ and
therefore, potentially open to gaps in federal law where
the US ability to assert complementarity is nebulous. The
fear is that they could be subject to ICC prosecution for
actions they did previously in uniform.
One legal scholar pointed out that several crimes defined
within the Rome Statute do not appear on the US books
(e.g., apartheid, persecution, enslavement, and
extermination.) While similar laws exist, it would be
within the competency of the Chief Prosecutor to argue
before the Pre-Trial Cham-
_______________
The “Court” refers to the International Criminal Court.

13 Id., at pp. 45-46.
307
VOL. 641, FEBRUARY 1, 2011 307

ber14 that in fact, the US does not have laws to prosecute

for the crimes that have been committed. A similar situation
arose in 1996, when Congressman Walter Jones (R-NC)
determined through a series of investigations that civilians
serving overseas under a contract with the US military were not
covered under the UCMJ. It had been assumed that the US Code
gave US primacy over civilians serving in a military capacity, but
instead it was discovered that if a civilian serving with a military
unit deployed overseas is accused of war crime, the foreign state
whose territory the crimes were committed in would in fact have
primary jurisdiction to try the case. Therefore, Rep. Jones
authored the “War Crimes Act of 1996,” which was designed to
cover civilian serving in a military capacity.15
To ensure that no gaps exist between the US Code, the
UCMJ, and the crimes within the Court’s jurisdiction, a
similar effort could be made. This process would need to
identify first where crimes exist in the Statute that are not
covered in some context through Title 10 and Title 18 of
the US Code and then draft legislation—modeled after the
War Crimes Act—designed to fill gaps. This would protect
former US service members and senior civilian leadership
from ICC prosecution.
There is very little discussion today about the gaps in law.

Scholars are aware of the potential gaps and see this area as one
where the US might be able to move forward to clarify legal
ambiguities that may exist, and to make corrections to US laws.
This exercise would
_______________
14 The International Criminal Court has four organs: the Chambers, the
Presidency, the Registry and the Office of the Prosecutor. The Chambers is
composed of 18 judges divided into three divisions: the Pre-Trial Chamber, the
Trial Chamber and the Appeals Chamber. [Id., at p. 22.]
15 Report’s Footnote: “He amended Article 18 section 2441 of the US Federal
Code 2441. US Code, Title 18, Part 1, Chapter 118, Section 2441, states... ῾(b)
Circumstances—The circumstances referred to in subsection (a) are that the
person committing such war crime or the victim of such war crime is a member of
the Armed Forces of the United States or a national of the United States (as
defined in section 101 of the Immigration and Nationality Act).’” [Id., at p. 45.]
308

strengthen the US assertion of complementarity.” (Emphasis

supplied)
The same report added, “At Rome, the U.S. was

concerned with the definition of crimes, especially the
definition of war crimes and, to lesser extent, the definition
of crimes against humanity xxx;”16 that the crime of
genocide was acceptable to the U.S. delegation; and that
throughout the negotiations, the U.S. position was to seek
one hundred percent assurance that U.S. service members
would only be held accountable to U.S. systems of justice.17
With the existing gap between the crimes of Genocide,
War Crimes and Other Crimes against Humanity under
the Rome Statute—now all criminalized in the Philippines
under RA 9851 on the one hand, and U.S. domestic laws on
the other, these crimes cannot be considered “punishable
under the laws in both Contracting Parties” as
required under the RP-US Extradition Treaty, and hence,
cannot be considered as extraditable offenses under the
treaty. The crimes considered as Genocide, War Crimes,
and Other Crimes against Humanity under the Rome
Statute and RA 9851 may not necessarily be considered as
such crimes under United States laws. Consequently, the
RP-US Extradition Treaty does not qualify as an
“applicable” extradition law or treaty under Section 17
of RA 9851, which allows the Philippines to surrender to
another state a person accused of Genocide, War Crimes
and Other Crimes against Humanity. In short, the
Philippines cannot surrender to the United States a
U.S. national accused of any of these grave
international crimes, when the United States does
not have the same or similar laws to prosecute such
crimes.
_______________
16 Id., at p. 34.
17 Id., citing Interviews with representatives of the US delegation in
Rome, 28 June 2005 and 6 October 2005, and comments from the Stimson
Workshop.
309
VOL. 641, FEBRUARY 1, 2011 309

Neither is the RP-US Non-Surrender Agreement an

“applicable” extradition law or treaty as required in Section
17 of RA 9851. Thus, the Agreement cannot be
implemented by the Philippine Government in the absence
of an applicable extradition law or treaty allowing the
surrender to the United States of U.S. nationals accused of
crimes under RA 9851.
If a U.S. national is under investigation or prosecution
by an international tribunal for any crime punishable
under RA 9851, the Philippines has the option to surrender
such U.S. national to the international tribunal if the
Philippines decides not to prosecute such U.S. national in
the Philippines. This option of the Philippine Government
under Section 17 of RA 9851 is not subject to the consent of
the United States. Any derogation from Section 17,
such as requiring the consent of the United States
before the Philippines can exercise such option,
requires an amendment to RA 9851 by way of either
an extradition law or treaty. Such an amendment
cannot be embodied in a mere executive agreement
or an exchange of notes such as the assailed
Agreement.
Section 17 of RA 9851 has clearly raised to a statutory
level the surrender to another State of persons accused of
any crime under RA 9851. Any agreement in derogation of
Section 17, such as the surrender to the U.S. of a U.S.
national accused of an act punishable under RA 9851 but
not punishable under U.S. domestic laws, or the non-
surrender to an international tribunal, without U.S.
consent, of a U.S. national accused of a crime under RA
9851, cannot be made in a mere executive agreement or an
exchange of notes. Such surrender or non-surrender,
being contrary to Section 17 of RA 9851, can only be
made in an amendatory law, such as a subsequent
extradition law or treaty.
Moreover, Section 17 of RA 9851 allows the surrender to
another State only “if another court x x x is already
conducting the investigation or undertaking the
prosecution of such crime.” This means that only if the
other State
310

is already investigating or prosecuting the crime can the

Philippines surrender the accused to such other State. The
RP-US Non-Surrender Agreement does not require that the
United States must already be investigating or prosecuting
the crime before the Philippines can surrender the accused.
In fact, a U.S. national accused of a crime under RA 9851
may not even be chargeable of such crime in the U.S.
because the same act may not be a crime under U.S.
domestic laws. In such a case, the U.S. cannot even conduct
an investigation of the accused, much less prosecute him

for the same act. Thus, the RP-US Non-Surrender
Agreement violates the condition in Section 17 of RA 9851
that the other State must already be investigating or
prosecuting the accused for the crime penalized under RA
9851 before the Philippines can surrender such accused.
To repeat, the assailed Agreement prevents the
Philippines, without the consent of the United States,
from surrendering to any international tribunal U.S.
nationals accused of crimes under RA 9851. Such consent is
not required under RA 9851 which mandates that any non-
surrender without the consent of another State must be
embodied in an extradition law or treaty. The assailed
Agreement also dispenses with the condition in Section 17
that before the Philippines can surrender the accused to
the United States, the accused must already be under
investigation or prosecution by the United States for the
crime penalized under RA 9851, a condition that may be
impossible to fulfill because not all crimes under RA 9851
are recognized as crimes in the United States. Thus, the
Agreement violates Section 17 of RA 9851 as well as
existing municipal laws arising from the
incorporation doctrine of the Constitution. The
Agreement cannot be embodied in a simple executive
agreement or an exchange of notes, but must be
implemented through an extradition law or a treaty
ratified with the concurrence of at least two-thirds of all
the members of the Senate.
311
VOL. 641, FEBRUARY 1, 2011 311

In international law, there is no difference between

treaties and executive agreements on their binding effect
upon party states, as long as the negotiating functionaries
have remained within their powers.18 However, while the
differences in nomenclature and form of various types of
international agreements are immaterial in international
law, they have significance in the municipal law of the
parties.19 An example is the requirement of concurrence of
the legislative body with respect to treaties, whereas with
respect to executive agreements, the head of State may act
alone to enforce such agreements.20
The 1987 Philippine Constitution provides: “No treaty or
international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of
the Senate.”21 This express constitutional requirement
makes treaties different from executive agreements, which
require no legislative concurrence.
An executive agreement can only implement, and not
amend or repeal, an existing law. As I have discussed in
Suplico v. National Economic and Development Authority,22
although an executive agreement has the force and effect of
law, just like implementing rules of executive agencies, it
cannot amend or repeal prior laws, but must comply with
the laws it implements.23 An executive agreement, being an
exclu-
_______________
18 Bayan v. Zamora, G.R. No. 138570, 10 October 2000, 342 SCRA

449, 489, citing Richard J. Erickson, “The Making of Executive Agreements
by the United States Department of Defense: An Agenda for Progress,” 13
Boston U. Intl. L.J. 58 (1995).
19 Jorge R. Coquia and Miriam Defensor Santiago, Public
International Law (1984), p. 585.
20 Id.
21 Constitution (1987), Art. VII, Sec. 21.
22 Dissenting Opinion, G.R. No. 178830, 14 July 2008, 558 SCRA 329,
360-391.
23 Id., at p. 376, citing Land Bank of the Philippines v. Court of
Appeals, 319 Phil. 246; 249 SCRA 149 (1995).
312

sive act of the Executive branch, does not have the status of
a municipal law.24 Acting alone, the Executive has no law-
making power; and while it has rule-making power, such
power must be exercised consistent with the law it seeks to
implement.25
Thus, an executive agreement cannot amend or
repeal a prior law, but must comply with State
policy embodied in an existing municipal law.26 This
also means that an executive agreement, which at
the time of its execution complies with then existing
law, is deemed amended or repealed by a subsequent
law inconsistent with such executive agreement.
Under no circumstance can a mere executive
agreement prevail over a prior or subsequent law
inconsistent with such executive agreement.
This is clear from Article 7 of the Civil Code, which
provides:
“Article 7. x x x
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws
or the Constitution.” (Emphasis supplied)
An executive agreement like the assailed

Agreement is an executive act of the President. Under
Article 7 of the Civil Code, an executive agreement
contrary to a prior law is void. Similarly, an executive
agreement contrary to a subsequent law becomes void upon
the effectivity of such subsequent law. Since Article 7 of the
Civil Code provides that “executive acts shall be valid only
when they are not contrary to the laws,” once an executive
act becomes contrary to law such executive act becomes
void even if it was valid prior to the enactment of such
subsequent law.
_______________
24 Id.
25 Id.
26 Id.
313
VOL. 641, FEBRUARY 1, 2011 313
A treaty, on the other hand, acquires the status of a

municipal law upon ratification by the Senate. Hence, a
treaty may amend or repeal a prior law and vice-versa.27
Unlike an executive agreement, a treaty may change state
policy embodied in a prior and existing law.
In the United States, from where we adopted the
concept of executive agreements, the prevailing view is that
executive agreements cannot alter existing law but
must conform to all statutory requirements.28 The
U.S. State Department made a distinction between treaties
and executive agreements in this manner:
“x x x it may be desirable to point out here the well-recognized

distinction between an executive agreement and a treaty. In brief,
it is that the former cannot alter the existing law and must
conform to all statutory enactments, whereas a treaty, if
ratified by and with the advice and consent of two-thirds of the
Senate, as required by the Constitution, itself becomes the
supreme law of the land and takes precedence over any prior
statutory enactments.”29 (Emphasis supplied)
The Agreement involved in this case is an executive

agreement entered into via an exchange of notes.30 The
parties
_______________
27 Id., citing Secretary of Justice v. Lantion, 379 Phil. 165; 322 SCRA
160 (2000).
28 Id., at p. 377.
29 Id., citing Prof. Edwin Borchard (Justus S. Hotchkiss Professor of
Law, Yale Law School), Treaties and Executive Agreements - A Reply, Yale
Law Journal, June 1945, citing Current Information Series, No. 1, 3 July
1934, quoted in 5 Hackworth, Digest of International Law (1943) pp. 425-
426.
30 E/N BFO-028-03; Paper on the RP-US Non-Surrender Agreement,
Rollo, p. 72.
An “exchange of notes” is “an interchange of diplomatic notes between a
diplomatic representative and the minister of foreign affairs of the State
to which he is accredited. xxx” [Coquia and Santiago, supra note 3, p. 584.]
It is a record of routine agreement, consisting of the exchange of two or
more documents, each of the
314

to the Agreement (RP and US) agree not to surrender each

other’s nationals31 to any international tribunal or to a
third party for the purpose of surrendering to any
international tribunal, without the other’s consent,
pursuant to the pronounced objective of “protect[ing]
Philippine and American personnel from frivolous and
harassment suits that might be brought against them in
international tribunals.”32 The Agreement amends
existing Philippine State policy as embodied in
municipal law arising from generally accepted
principles of international law which form part of
the law of the land. The Agreement also runs counter to
RA 9851 which criminalized wholesale all acts defined as

international crimes in the Rome Statute, an international
treaty which the Philippines has signed but has still to
ratify.33 The Agreement frustrates the objectives of
generally accepted principles of international law embodied
in the Rome Statute. Thus, considering its nature, the
Agreement should be embodied not in an executive
agreement, but in a treaty which, under the Philippine
Constitution, shall be valid and effective only if concurred
in by at least two-thirds of all the members of the Senate.
The 1987 Philippine Constitution states as one of its
principles, as follows:
_______________
parties being in the possession of the one signed by the representative of

the other, and is resorted to because of its speedy procedure, or to avoid
the process of legislative approval. [Ruben Agpalo, Public International
Law (2006), p. 379.]
31 The Agreement actually uses the term “persons” which refer to

“Government officials, employees (including contractors), or military
personnel or nationals of one Party.” See Rollo, p. 68.
32 Paper on the RP-US Non-Surrender Agreement, supra note 30.
33 The Philippines signed the Rome Statute of International Criminal
Court on 28 December 2000, but has yet to ratify the same. See
www.iccnow.org; last visited on 12 July 2010.
315
VOL. 641, FEBRUARY 1, 2011 315

“The Philippines x x x adopts the generally accepted principles

of international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.”34
This constitutional provision enunciates the doctrine of

incorporation which mandates that the Philippines is
bound by generally accepted principles of international law
which automatically form part of Philippine law by
operation of the Constitution.35
In Kuroda v. Jalandoni,36 this Court held that this
constitutional provision “is not confined to the recognition
of rules and principles of international law as contained in
treaties to which our government may have been or shall
be a signatory.” The pertinent portion of Kuroda states:
“It cannot be denied that the rules and regulation of The

Hague and Geneva Conventions form part of and are
wholly based on the generally accepted principles of inter-
national law. x x x Such rule and principles, therefore,
form part of the law of our nation even if the Philippines
was not a signatory to the conventions embodying them,
for our Constitution has been deliberately general and extensive
in its scope and is not confined to the recognition of rules and
principles of international law as contained in treaties to which
our government may have been or shall be a signatory.”37
(Emphasis supplied)
Hence, generally accepted principles of international law

form part of Philippine laws even if they do not derive from
treaty obligations of the Philippines.38
_______________
34 Constitution (1987), Art. II, Sec. 2.

35 Agpalo, supra note 30, p. 421.
36 83 Phil. 171, 178 (1949).
37 Id.
38 Mijares v. Ranada, G.R. No. 139325, 12 April 2005, 455 SCRA 397,
421 citing H. Thirlway, “The Sources of International Law,” International
Law (ed. by M. Evans, 1st ed, 2003), p. 124.
316

Generally accepted principles of international law, as

referred to in the Constitution, include customary
international law.39 Customary international law is one of
the primary sources of international law under Article 38 of
the Statute of the International Court of Justice.40
Customary international law consists of acts which, by
repetition of States of similar international acts for a
number of years, occur out of a sense of obligation, and
taken by a significant number of States.41 It is based on
custom, which is a clear and continuous habit of doing
certain actions, which has grown under the aegis of the
conviction that these actions are, according to international
law, obligatory or right.42 Thus, customary international
law requires the concurrence of two elements: “[1] the
established, wide-spread, and consistent practice on the
part of the States; and [2] a psychological element known
as opinion juris sive necessitatis (opinion as to law or
necessity). Implicit in the latter element is a belief that the
practice in question is ren-
_______________
39 Jovito Salonga and Pedro Yap, Public International Law, 5th ed.
(1992), p. 12.
40 Article 38 of the Statute of International Court of Justice reads:
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or
particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice
accepted as law;
c. the general principles of law recognized by civilized
nations;
d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
xxxx
42 Id., citing Oppenheimer’s International Law, 9th ed., p. 27.
317
VOL. 641, FEBRUARY 1, 2011 317

dered obligatory by the existence of a rule of law requiring

it.”43
Some customary international laws have been affirmed
and embodied in treaties and conventions. A treaty
constitutes evidence of customary law if it is declaratory of
customary law, or if it is intended to codify customary law.
In such a case, even a State not party to the treaty
would be bound thereby.44 A treaty which is merely a
formal expression of customary international law is
enforceable on all States because of their
membership in the family of nations.45 For instance,
the Vienna Convention on Consular Relations is binding
even on non-party States because the provisions of the
Convention are mostly codified rules of customary
international law binding on all States even before their
codification into the Vienna Convention.46 Another example
is the Law of the Sea, which consists mostly of codified
rules of customary international law, which have been
universally observed even before the Law of the Sea was
ratified by participating States.47
Corollarily, treaties may become the basis of customary
international law. While States which are not parties to
treaties or international agreements are not bound thereby,
such agreements, if widely accepted for years by many
States, may transform into customary international laws,
in which case, they bind even non-signatory States.48
In Republic v. Sandiganbayan,49 this Court held that
even in the absence of the Constitution,50 generally
accepted prin-
_______________
43 Id., at p. 7, citing Mijares v. Ranada, supra note 38.

44 Isagani Cruz, International Law (1998), p. 23.
45 Id., at p. 175.
47 Id.
48 Id., at p. 6.
49 G.R. No. 104768, 23 July 2003, 407 SCRA 10, 51, 56-57.
50 The 1973 Philippine Constitution also provides for the Doctrine of
Incorporation, to wit:
318

ciples of international law remain part of the laws of the

Philippines. During the interregnum, or the period after
the actual takeover of power by the revolutionary
government in the Philippines, following the cessation of
resistance by loyalist forces up to 24 March 1986
(immediately before the adoption of the Provisional
Constitution), the 1973 Philippine Constitution was
abrogated and there was no municipal law higher than the
directives and orders of the revolutionary government.
Nevertheless, this Court ruled that even during this period,
the provisions of the International Covenant on Civil and
Political Rights and the Universal Declaration of Human
Rights, to which the Philippines is a signatory, remained in
effect in the country. The Covenant and Declaration are

based on generally accepted principles of international law
which are applicable in the Philippines even in the absence
of a constitution, as during the interregnum. Consequently,
applying the provisions of the Covenant and the
Declaration, the Filipino people continued to enjoy almost
the same rights found in the Bill of Rights despite the
abrogation of the 1973 Constitution.
The Rome Statute of the International Criminal Court
was adopted by 120 members of the United Nations (UN)
on 17 July 1998.51 It entered into force on 1 July 2002, after
60 States became party to the Statute through ratification
or accession.52 The adoption of the Rome Statute fulfilled
the international community’s long-time dream of creating
a
_______________
Article II
Declaration of Principles and State Policies
xxxx
Section 3. The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international
law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.
51 http://www.un.org/News/facts/iccfact.htm; last visited on 1
November 2010.
52 Id.
319
VOL. 641, FEBRUARY 1, 2011 319

permanent international tribunal to try serious

international crimes. The Rome Statute, which established
an international criminal court and formally declared
genocide, war crimes and other crimes against humanity as
serious international crimes, codified generally
accepted principles of international law, including
customary international laws. The principles of law
embodied in the Rome Statute were already generally
accepted principles of international law even prior to the
adoption of the Statute. Subsequently, the Rome Statute
itself has been widely accepted and, as of November 2010,
it has been ratified by 114 states, 113 of which are
members of the UN.53
There are at present 192 members of the UN. Since 113
member states have already ratified the Rome Statute,
more than a majority of all the UN members have now
adopted the Rome Statute as part of their municipal laws.
Thus, the Rome Statute itself is generally accepted by the
community of nations as constituting a body of generally
accepted principles of international law. The principles of
law found in the Rome Statute constitute generally
accepted principles of international law enforceable
in the Philippines under the Philippine
Constitution. The principles of law embodied in the Rome
Statute are binding on the Philippines even if the Statute
has yet to be ratified by the Philippine Senate. In short, the
principles of law enunciated in the Rome Statute are now
part of Philippine domestic law pursuant to Section 2,

Article II of the 1987 Philippine Constitution.
Article 89(1) of the Rome Statute provides as follows:
Surrender of persons to the Court

1. The Court may transmit a request for the arrest and
surrender of a person, together with the material supporting the
request outlined in article 91, to any State on the territory of
which that person
_______________
53 See http://www.un.org/en/members/index.shtml and http://www.icc-

cpi.int/Menus/ASP/ states+parties; last visited on 1 November 2010.
320

may be found and shall request the cooperation of that State in

the arrest and surrender of such a person. States Parties shall, in
accordance with the provisions of this Part and the procedure
under their national law, comply with requests for arrest and
surrender.
xxxx
It is a principle of international law that a person

accused of genocide, war crimes and other crimes
against humanity shall be prosecuted by the inter-
national community. A State where such a person
may be found has the primary jurisdiction to
prosecute such person, regardless of nationality and
where the crime was committed. However, if a State
does not exercise such primary jurisdiction, then
such State has the obligation to turn over the
accused to the international tribunal vested with
jurisdiction to try such person. This principle has
been codified in Section 2(e) and Section 17 of RA
9851.
Moreover, Section 15 of RA 9851 has expressly adopted
“[r]elevant and applicable international human
rights instruments” as sources of international law in the
application and interpretation of RA 9851, thus:
“Section 15. Applicability of International Law.—In the

application and interpretation of this Act, Philippine courts shall
be guided by the following sources:
(a) x x x
xxx
(e) The rules and principles of customary international law;
xxx
(g) Relevant and applicable international human rights
instruments;
(h) Other relevant international treaties and conventions
ratified or acceded to by the Republic of the Philippines; and
x x x.” (Emphasis supplied)
The Rome Statute is the most relevant and applicable

international human rights instrument in the application
and
321
VOL. 641, FEBRUARY 1, 2011 321

interpretation of RA 9851. Section 15(g) of RA 9851

authorizes the use of the Rome Statute as a source of
international law even though the Philippines is not a
party to the Rome Statute. Section 15(g) does not require
ratification by the Philippines to such relevant and
applicable international human rights instruments.
International human rights instruments to which the
Philippines is a party are governed by Section 15(h),
referring to treaties or conventions “ratified or acceded to”
by the Philippines, which constitute a different category of
sources of international law under Section 15 of RA 9851.
Thus, Section 15(g) and Section 15(h) refer to different
instruments, the former to international human rights
instruments to which the Philippines is not a party, and
the latter to international human rights instruments to
which the Philippines is a party. By mandate of Section 15
of RA 9851, both categories of instruments are sources of
international law in the application and interpretation of
RA 9851.
However, paragraph 2 of the assailed RP-US Non-
Surrender Agreement provides as follows:
2. Persons of one Party present in the territory of the other shall

not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any
international tribunal for any purpose, unless such tribunal
has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any
other entity or third country, or expelled to a third country,
for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been
established by the UN Security Council.
Clearly, the Agreement is in derogation of Article 89(1)

of the Rome Statute. While Article 98(2) of the Rome
Statute, which states as follows:
2. The Court may not proceed with a request for surrender

which would require the requested State to act inconsistently
with its obligations under international agreements pursuant
to which
322

the consent of a sending State is required to surrender a person of

that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the
surrender.” (Emphasis supplied)
allows for derogation of Article 89(1) if there is an

international agreement between States allowing such
derogation, such international agreement, being in
derogation of an existing municipal law insofar as the
Philippines is concerned, must be embodied in a treaty
and ratified by the Philippine Senate. Article 98(2)
does not ipso facto allow a derogation of Article 89(1), but
requires a further act, that is, the execution of an
international agreement. Since such international

agreement is in derogation of Article 89(1) of the
Rome Statute and Section 17 of RA 8951, such
international agreement must be ratified by the
Senate to become valid and effective.
Incidentally, the RP-US Non-Surrender Agreement
allows the Philippines to surrender, even without U.S.
consent, a U.S. national accused of a crime under RA 9851
provided that the surrender is made to an “international
tribunal xxx established by the UN Security Council.” The
United States agrees to this because it has a veto power in
the UN Security Council, a blocking power which it does
not have, and cannot have, in the International Criminal
Court.
The International Criminal Court created under the
Rome Statute was designed to complement the efforts of
states to prosecute their own citizens domestically while
ensuring that those who violate international law would be
brought to justice.54 A state is given a chance to exercise
complementarity55
_______________

Center, Report No. 55, supra note 11, pp. 21-22.
55 “Under the premise of complementarity, the primary jurisdiction for
any case lies first with the state’s national judicial systems.” [Id., at p. 35.]
323
VOL. 641, FEBRUARY 1, 2011 323

by informing the ICC of its choice to investigate and

prosecute its own nationals through its own domestic
courts.56 Thus, the State has the primary jurisdiction to
investigate and prosecute its own nationals in its custody
who may have committed the grave international crimes
specified in the Rome Statute. Under the same precept,
Article 98(2) of the Rome Statute allows the State of the
accused to act consistently with its obligations under
international agreements, and the ICC “may not proceed
with a request for surrender” which would require such
State to act otherwise. The ICC steps in and assumes
jurisdiction only if the State having primary jurisdiction
and custody of the accused refuses to fulfill its
international duty to prosecute those responsible for grave
international crimes.
The United States has not ratified the Rome Statute,
and instead, entered into bilateral non-surrender
agreements with countries, citing its ability to do so under
Article 98(2) of the Rome Statute.57 These agreements, also
called Bilateral Im-
_______________
56 If the ICC Prosecutor believes that the crime committed is within

the ICC’s discretion and that investigations should be initiated, the
Prosecutor must seek authorization from the Pre-Trial Chamber, which is
the judicial body charged with evaluating and commencing investigations.
If the Pre-Trial Chamber believes there is a “reasonable basis to proceed
with an investigation,” and the case “appears to fall within the jurisdiction
of the Court,” the Prosecutor must inform the states and parties involved.
“xxx [A] state, whether or not a member of the ICC, can exercise
complementarity by informing the Court within one month of notification
by the Prosecutor, that it chooses to investigate the case and, if sufficient
evidence exists, to prosecute through its own national criminal justice
systems. Under the Rome Statute, the Prosecutor must defer to the state’s
request to investigate and prosecute at that national level unless the Pre-
Trial Chamber determines that the state is unable or unwilling to exercise
jurisdiction effectively and decides to authorize the Prosecutor to
investigate the claim. [Id., at pp. 24-25, citing the Rome Statute, Articles
15(4), 18(1-3) and 19.]
57 Id., at p. 16.
324

munity Agreements (BIA),58 were intended as “means [to

provide] assurances that no U.S. citizen would be
handed over to the (International Criminal) Court
for investigation and prosecution of alleged crimes
that fell within the Court’s jurisdiction. x x x”59 There
is currently an argument within the international
community about the use of Article 98 agreements, as
negotiated by the U.S. after the adoption of the Rome
Statute, and whether they should be recognized as having
precedent over ICC’s authority.60 When Article 98 was
originally included in the Rome Statute, it was intended to
cover Status of Forces Agreements (SOFAs) and Status of
Missions Agreements (SOMAs),61 which establish the
responsibilities of a nation sending troops to another
country, as well as where jurisdiction lies between the U.S.
and the host government over criminal and civil issues
involving the deployed personnel.62 However, under the
BIAs, the standard definition of “persons” covered is
“current or former Government officials, employees
_______________
58 Id., at p. 53.
59 Id., at p. 11.
As of May 2005, the U.S. Administration has signed bilateral
agreements with 100 countries, 42 of which are states parties to the Rome
Statute, in which they pledged not to turn American citizens over to the
Court. [Id., at pp. 13 and 53.]
60 Id., at p. 54.
61 Id., citing AMICC, “Bilateral Immunity Agreements,” available at
http://www.amicc.org/usinfo/ administration_policy_BIAs.html.
62 Id., citing Global Security, “Status of Forces Agreements,” available
at http://www.globalsecurity. org/military/facility/sofa.htm. SOFAs define
the legal status of U.S. personnel and property in the territory of another
country. Their purpose is to set forth rights and responsibilities between
the U.S. and the host country on such matters as civil and criminal
jurisdiction, the wearing of the uniform, the carrying of arms, tax and
customs relief, entry and exit of personnel and property, and resolving
damage claims. [Global Security, “Status of Forces Agreements,” id.; last
visited on 11 August 2010.]
325
VOL. 641, FEBRUARY 1, 2011 325

(including contractors), or military personnel or nationals

of one party.”63 The Bush Administration64 contends that
“such bilateral non-surrender agreements are Article 98(2)
agreements and that all US citizens of whatever character
are covered by any such agreement, xxx [and this] US
position on scope of the bilateral non-surrender
agreements, namely that it includes US citizens acting
in their private capacity, ῾is legally supported by the
text, the negotiating record, and precedent.’ ”65
Meanwhile, international legal scholars and
members of the US JAG Corps involved in the
drafting of the Rome Statute expressed frustration
with the “expansive use of Article 98 agreements to
apply to all Americans, not just those individuals
usually covered in SOFAs and SOMAs.”66 There are
even those who contend that since the BIAs do not deal
solely with the conduct of official business, rather, they
apply to a wide variety of persons who may be on the
territory of either party for any purpose at any time, then
“the Rome Statute does not
_______________
63 David Scheffer, “Article 98(2) of the Rome Statute: America’s

Original Intent,” pp. 344-345; available at http://jicj.oxfordjournals.
org/cgi/reprint/3/2/333; last visited on 6 August 2010.
64 The administration of former U.S. President George W. Bush.
65 David Scheffer, “Article 98(2) of the Rome Statute: America’s
Original Intent,” supra note 63, pp. 344-345; citing “Proposed Text of
Article 98 Agreements with the United States,” July 2002, available at
http://www.iccnow.org/documents/otherissues/impunityart98/US
Article98Agreement/ Aug02.pdf; and L. Bloomfield,“The U.S. Government
and the International Criminal Court,” Remarks to the Parliamentarians
for Global Action, Consultative Assembly of Parliamentarians for the
International criminal Court and the Rule of Law, New York, 12
September 2003, available at http://www.amicc.
org/docs/ Bolton11_3_03.pdf.
Center, Report No. 55, supra note 11, citing the Stimson Workshop.
326

authorize these agreements and by adhering to them, the

countries will violate their obligations to the [ICC] under
the Statute.”67 Regardless of these contentions, however,
the ultimate judge as to what agreement qualifies under
Article 98(2) of the Rome Statute is the ICC itself.68
The assailed RP-US Non-Surrender Agreement covers
“officials, employees, military personnel, and nationals.”
Under the Agreement, the Philippines is not allowed,
without U.S. consent, to surrender to an international
tribunal, including the ICC, U.S. nationals—whether
military personnel or plain civilians—accused of genocide,
war crimes and other crimes against humanity, that is, the
crimes covered by the Rome Statute and RA 9851. Whether
or not this Agreement would be recognized by the ICC as

an “international agreement” qualified under Article 98(2)
depends on the ICC itself. In the domestic sphere, however,
the Agreement, being in derogation of the generally
accepted principles of international law embodied in Article
89(1) of the Rome Statute, as well as being contrary to the
provisions of Section 17 of RA 9851, should be ratified by
the Philippine Senate to be valid and effective.
In sum, any derogation from the generally accepted
principles of international law embodied in the Rome
Statute, which principles have the status of municipal law
in this country, cannot be undertaken through a mere
executive agreement because an executive agreement
cannot amend existing laws. A law or a treaty ratified by
the Philippine Senate is necessary to amend, for purposes
of domestic law, a derogable principle of international law,
such as Article 89(1) of the Rome Statute, which has the
status of municipal law.
_______________
67 AMICC, “Bilateral Immunity Agreements,” supra note 61; last

visited on 11 August 2010.
68 The determination would be done by the ICC’s Chambers comprised
of 18 judges. [Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US
Center, Report No. 55; supra note 11, pp. 54 and 22; see also note 14.]
237
VOL. 641, FEBRUARY 1, 2011 237

Likewise, any derogation from the surrender

option of the Philippines under Section 17 of RA
9851 must be embodied in an applicable extradition
law or treaty and not in a mere executive agreement
because such derogation violates RA 9851, which is
superior to, and prevails over, a prior executive
agreement allowing such derogation. Under no
circumstance can a mere executive agreement
prevail over a prior or subsequent law inconsistent
with such executive agreement. Thus, the RP-US Non-
Surrender Agreement to be valid and effective must be
ratified by the Philippine Senate, and unless so ratified,
the Agreement is without force and effect.
Accordingly, I vote to GRANT the petition and to
DECLARE the RP-US Non-Surrender Agreement
ineffective and unenforceable unless and until ratified by
the Senate of the Philippines.
Petition dismissed.
Note.—This authority of the President to enter into

executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine
jurisprudence. (Neri vs. Senate Committee on
Accountability of Public Officers and Investigations, 564
SCRA 152 [2008])
——o0o——
© Copyright 2024 Central Book Supply, Inc. All rights reserved.

Bayan Muna vs. Romulo

Uploaded by

Copyright:

Available Formats

Bayan Muna vs. Romulo

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Bayan Muna vs. Romulo

Uploaded by

Copyright:

Available Formats

8/3/24, 12:37 AM SUPREME COURT REPORTS ANNOTATED VOLUME 641

244 SUPREME COURT REPORTS ANNOTATED

BAYAN MUNA, as represented by Rep. SATUR OCAMPO,

Actions; Procedural Rules and Technicalities; Locus Standi;

VOL. 641, FEBRUARY 1, 2011 245