Bayan Muna v. Alberto Romulo Case Report by Aban, Janus Mari A.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

BAYAN MUNA, as represented by Rep. SATUR
OCAMPO, Rep. CRISPIN BELTRAN, and Rep.
LIZA L. MAZA,
Petitioner,




- versus -






ALBERTO ROMULO, in his capacity as Executive
Secretary, and BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs,
Respondents.
G.R. No. 159618

Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

Promulgated:

February 1, 2011

Facts:
Petition for certiorari, mandamus, and prohibition under Rule 65 assails and seeks to nullify
the Non-surrender Agreement concluded by and between RP and USA.

On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the
Rome Statute which, by its terms, is subject to ratification, acceptance or approval by the
signatory states. 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.


On May 9 2003, Ambassador Francis Ricciardone sent US Embassy Note No. 0470 to DFA
proposing terms of non-surrender bilateral agreement between USA and RP

Via Exchange of Notes No. BFO-028-03
[7]
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. 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.
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.
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 petitioners 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.

Issues:
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;

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.

Held:

Validity of the RP-US Non-Surrender Agreement

Petitioners 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 contentionperhaps taken unaware of certain well-recognized international
doctrines, practices, and jargonsis 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. An exchange of notes falls into the category of inter-
governmental agreements, 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.


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. 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.
[

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.

It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the
Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be boundis 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. 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.

Under international law, there is no difference between treaties and executive agreements
in terms of their binding effects on the contracting states concerned, as long as the
negotiating functionaries have remained within their powers.

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.



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.

Court 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 servanda principle.








The Agreement Not in Contravention of the Rome Statute

It is the petitioners next contention that the Agreement undermines the establishment of
the ICC and is null and void insofar as it unduly restricts the ICCs 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, 86, 89, and 90 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 agreementlike the non-surrender
agreementthat 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 petitioners 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]. Art. 1 of the Rome Statute pertinently provides:

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.)


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.

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; 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, petitioners 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.