Bayan Muna vs Romulo

G. R. No. 159618, February 01, 2011

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.

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute 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.” The
serious crimes adverted to cover those considered grave under international law, such as genocide,
crimes against humanity, war crimes, and crimes of aggression.

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. 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.

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.

Issue: Whether or not 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.
Ruling: The petition is bereft of merit.
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. 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. 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.

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.

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.
 Bayan Muna v. Romulo and Ople

Facts
Then US Ambassador Francis Ricciardone sent US Embassy Note 0470 to the DFA proposing the terms
of the Non-surrender Bilateral Agreement between the Philippines and the US. Via Exchange of Notes
BFO-028-03, the Philippines, through Sec. Ople, agreed and accepted the US proposals embodied under
the US Embassy Note and put in effect the Non-surrender Agreement with the US government.

The Non-surrender Agreement aims to protect what it refers to and defines as persons of the Philippines
and the US from frivolous and harassment suits that might be brought against them in international
tribunals. It provides that the persons of one party present in the territory of the other shall not, absent the
express consent of the first party be surrendered or transferred by any means to any international tribunal
for any purpose or 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. When the US/Philippines extradites, surrenders, or otherwise transfers a
person of the Philippines/US to a third country, the US/Philippines 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/Philippines.

Petitioners argue that the Exchange of Notes BFO-028-03 cannot be a valid medium for concluding an
agreement, that it cannot partake the nature of a treaty without being ratified by the Senate, that the Non-
surrender Agreement does not fall under any subject-categories enumerated in a previous case, and that
the Non-surrender Agreement infringes the effectivity of the Rome Statute insofar as it unduly restricts
the ICC’s jurisdiction.

Issues
1) Can the Non-surrender Agreement be validly concluded through exchanges of notes? Is the Non-
surrender Agreement a violation of the obligation of the Philippines under the Rome Statute?

Held
The Petition is denied for lack of merit.

Ratio
1) An exchange of notes falls into the category of inter-governmental agreements which is an
internationally accepted form of international agreement. It as a record of routine agreement that has
many similarities with the private law contract. The agreement consists of 2 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. The terms exchanges of notes and executive
agreements have been used interchangeably, the former being a form of executive agreement that
becomes binding through executive action.

The categorization of subject matters that may be covered by international agreements mentioned in
Eastern Sea Trading case 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 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.

There is no difference between treaties and executive agreements in terms of their binding effects on
the contracting parties, as long as the negotiating functionaries have remained within their powers.
The right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage, the validity of which has never been
seriously questioned by the Court. The President as head of state and government is the sole organ
and authority in the external affairs of the country. The Constitution vests in the President the power
to enter into international agreements, subject to the required concurrence votes of the Senate. But
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 executive altogether. The
President by ratifying through her deputies the Non-surrender agreement, did nothing more than
discharge a constitutional duty and exercise a prerogative that pertains to the Office.

2) The Non-surrender agreement does not undermine the Rome Statute. The jurisdiction of the ICC is to
be complementary to national criminal jurisdiction of signatory states. It is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes. The 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. The Non-surrender
agreement does not violate the Philippines’ duty required by the imperatives of good faith to refrain
from performing any act tending to impair the Rome Statute.
The Philippines has not abdicated its sovereignty by bargaining away the jurisdiction of the ICC to
prosecute US national who commit serious crimes of international concerns in the Philippines. The
Non-surrender agreement is an affirmance of the Philippines’ national criminal jurisdiction. The
Philippines may decide to try persons of the US under our national criminal jurisdiction. Or the country
may opt not to exercise its criminal jurisdiction and defer to the ICC. As to persons of the US whom
the Philippines refuses to prosecute, the country would in effect accord discretion to the US to
exercise wither its national criminal jurisdiction or consent to the referral of the matter to the ICC for
trial. By their nature, international agreements actually have a limiting effect on the otherwise
encompassing nature of sovereignty. By their voluntary act, nations may decide to surrender or waive
some aspects of their state power. In this partial surrender, greater benefits are derived from a pact or
reciprocal undertaking. 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 should be handled by a particular international criminal court.

Rome Statute – This establishes the International Criminal Court with the power to exercise
jurisdiction over persons for the most serious crimes of international concern and shall be
complementary to the national criminal jurisdiction. Under the Vienna Convention on the Law of
Treaties:
1) State Party – is legally obliged to follow all the provisions of a treaty in good faith
2) Signatory State – is only obliged to refrain from acts which would defeat the object and purpose
of a treaty.

As of writing the ponencia, the Philippines is only a signatory state to the Rome Statute and not a
State Party for lack of ratification by the Senate. Any argument obliging the Philippines to follow any
provision in the treaty would be premature.

Treaty – 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 that treaties.

Sources of International Law

1) International conventions, whether general or particular, establishing rules expressly recognized
by the contesting states
2) International custome, as evidence of a general practice accepted as law
3) General principles of law recognized by civilized nations
4) Judicial decisions and teachings of the most highly qualified publicists of the various nations

Doctrine of incorporation – 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. 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.

Customary international law – or international custom is a source of international law as stated in the
Statute of the International Court of Justice, defined as the general and consistent practice of states
recognized and followed by them from a sense of legal obligation.

1) State practice – the objective element, generality, uniformity and consistency.

2) Opinio juris – the subjective 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.
Once the existence of state practice has been extablished, 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 or courtesy? Opinio juris or the belief
that a certain form of behavior is obligatory, is what makes practice international rule. Without it,
practice is not law.

Jus cogens – means the compelling law. It holds the highest hierarchical position among all other
customary norms and principles. Jus cogens norms are deemed peremptory and non-derogable.
When applied to international crimes, jus cogens crimes have been deemed so fundamental to the
existence of a just international legal order that state cannot derogate from them, even by agreement.