Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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.
DECISION
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 Statute 3 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 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,
(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 Agreement 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
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 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 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
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.
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 agreement 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 concurrence 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 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 Trading 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 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.
xxx
And lest it be overlooked, one type of executive agreement is a treaty-authorized 44 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 Constitution 46––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 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.
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 and 9053 thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that
those responsible for the 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:
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 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 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, 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 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 agreement, 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 precludes 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 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 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 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 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.
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 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.1avvphi1
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
international 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.
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
imprisoned 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.801avvphi1
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–
(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 scholar of public international law and the term usually
refers to legal scholars or "academic writers."82 It has not been shown that the authors 83 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 nonexistent. 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:

Rome Statute US Law

Article 6 §1091. Genocide

Genocide
(a) Basic Offense – Whoever, whether in
For the purpose of this Statute, "genocide" the time of peace or in time of war and with
means any of the following acts committed specific intent to destroy, in whole or in
with intent to destroy, in whole or in part, a substantial part, a national, ethnic, racial or
national, ethnical, racial or religious group, religious group as such–
as such:
(1) kills members of that group;
(a) Killing members of the group;
(2) causes serious bodily injury to members
(b) Causing serious bodily or mental harm of that group;
to members of the group;
(3) causes the permanent impairment of the
(c) Deliberately inflicting on the group mental faculties of members of the group
conditions of life calculated to bring about through drugs, torture, or similar
its physical destruction in whole or in part; techniques;
(d) Imposing measures intended to prevent (4) subjects the group to conditions of life
births within the group; that are intended to cause the physical
destruction of the group in whole or in part;
(e) Forcibly transferring children of the
group to another group. (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 8 (d) Definition – As used in this Section the

War Crimes term "war crime" means any conduct –
2. For the purpose of this Statute, "war (1) Defined as a grave breach in any of the
crimes" means: international conventions signed at Geneva
12 August 1949, or any protocol to such
(a) Grave breaches of the Geneva
convention to which the United States is a
Conventions of 12 August 1949, namely,
party;
any of the following acts against persons or
 property protected under the provisions of (2) Prohibited by Article 23, 25, 27 or 28 of
the relevant Geneva Convention: x x x84 the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War
(b) Other serious violations of the laws and
on Land, signed 18 October 1907;
customs applicable in international armed
conflict, within the established framework of (3) Which constitutes a grave breach of
international law, namely, any of the common Article 3 (as defined in subsection
following acts: [d]85) when committed in the context of and
in association with an armed conflict not of
xxxx
an international character; or
(c) In the case of an armed conflict not of
(4) Of a person who, in relation to an armed
an international character, serious
conflict and contrary to the provisions of the
violations of article 3 common to the four
Protocol on Prohibitions or Restrictions on
Geneva Conventions of 12 August 1949,
the Use of Mines, Booby-Traps and Other
namely, any of the following acts committed
Devices as amended at Geneva on 3 May
against persons taking no active part in the
1996 (Protocol II as amended on 3 May
hostilities, including members of armed
1996), when the United States is a party to
forces who have laid down their arms and
such Protocol, willfully kills or causes
those placed hors de combat by sickness,
serious injury to civilians.86
wounds, detention or any other cause:
xxxx
(d) Paragraph 2 (c) applies to armed
conflicts not 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 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 Habana 89 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 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 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
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-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, only 114 114 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 194 115 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
Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. x x x
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 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
jurisprudence."120 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.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for
lack of merit. No costs.
SO ORDERED.