Bayan Muna, as represented by Rep.

Satur
Ocampo, et al. vs. Alberto Romulo, in his
capacity as Executive Secretary, et al.
G.R. No. 159618

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.

DECISION
VELASCO, J.:

The Case
This petition

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.

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-028-03

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 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 AgreementRespondents 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 Agreementis 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.

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,
 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."

Specifically, it is "a party’s personal and substantial interest in a case where he has sustained or
will sustain direct injury as a result"

of the act being challenged, and "calls for more than just a generalized grievance."

The term "interest" refers to material interest, as distinguished from one that is merely
incidental.

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."

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.

Consequently, in a catena of cases,

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.

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.

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 cases

and Kilosbayan v. Guingona, Jr.

In cases of transcendental importance, we wrote again in Bayan v. Zamora,

"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,"

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.

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 TradeAgreement 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.

xxx

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."

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.

Neither, on the domestic sphere, can one be held valid if it violates the Constitution.

Authorities are, however, agreed that one is distinct from another for accepted reasons apart
from the concurrence-requirement aspect.

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;

a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory
enactment.

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 Agreementdoes 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,

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 servanda

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.

Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state
on the matter of which the international agreement format would be convenient to serve its best
interest. As Francis Sayre said in his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive

agreements as such concluded from time to time. Hundreds of executive agreements,
other than those entered into under the trade-agreement act, have been negotiated with
foreign governments. x x x They cover such subjects as the inspection of vessels,
navigation dues, income tax on shipping profits, the admission of civil air craft, custom
matters and commercial relations generally, international claims, postal matters, the
registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized

or a treaty-implementing executive agreement,

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

--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 Adolfo

is misplaced, said case being inapplicable owing to different factual milieus. There, the Court
held that an executive agreement cannot be used to amend a duly ratified and existing treaty,
i.e., the Bases Treaty. Indeed, an executive agreement that does not require the concurrence of
the Senate for its ratification may not be used to amend a treaty that, under the Constitution, is
the product of the ratifying acts of the Executive and the Senate. The presence of a treaty,
purportedly being subject to amendment by an executive agreement, does not obtain under the
premises.

Considering the above discussion, the Court need not belabor at length the third main
issue raised, referring to the validity and effectivity of the Agreement without the
concurrence by at least two-thirds of all the members of the Senate. The Court has,
in Eastern Sea Trading,
as reiterated in Bayan,

given recognition to the obligatory effect of executive agreements without the concurrence of
the Senate:

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,

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 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]."

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. 1

of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem

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 Convention
 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;

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. Romulo

—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.
xxx

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.

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.

Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of

Philippine courts.

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."

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.

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.

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.

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.

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.
 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. 125

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 maydispense 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;

(2) provides penal sanctions and criminal liability for their commission;

and (3) establishes special courts for the prosecution of these crimes and for the State to
exercise primary criminal jurisdiction.

Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.
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.

Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of
the Philippine State.

Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where "another court or
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. Romulo

which cited Weinberger v. Rossi.

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."

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. Neda

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."

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,"

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.

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).

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."

It has not been shown that the authors

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 the
For the purpose of this Statute, "genocide" means any time of peace or in time of war and with
of the following acts committed with intent to destroy, specific intent to destroy, in whole or in
in whole or in part, a national, ethnical, racial or substantial part, a national, ethnic, racial or
religious group, as such: religious group as such-

(a) Killing members of the group; (1) kills members of that group;

(b) Causing serious bodily or mental harm to (2) causes serious bodily injury to
members of the group; members of that group;

(c) Deliberately inflicting on the group (3) causes the permanent

conditions of life calculated to bring about its impairment of the mental faculties
physical destruction in whole or in part; of members of the group through
drugs, torture, or similar
(d) Imposing measures intended to prevent techniques;
births within the group;
(4) subjects the group to conditions
(e) Forcibly transferring children of the of life that are intended to cause the
group to another group. physical destruction of the group in
whole or in part;

(5) imposes measures intended to

prevent births within the group; or

(6) transfers by force children of the

group to another group;

shall be punished as provided in subsection

(b).

Article 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, party;
namely, any of the following acts
against persons or property (2) Prohibited by Article 23, 25, 27 or 28 of
protected under the provisions of the Annex to the Hague Convention IV,
the relevant Geneva Convention: x Respecting the Laws and Customs of War on
x x84 Land, signed 18 October 1907;

(b) Other serious violations of the (3) Which constitutes a grave breach of
laws and customs applicable in common Article 3 (as defined in subsection
international armed conflict, within [d]85) when committed in the context of and
the established framework of in association with an armed conflict not of
 international law, namely, any of an international character; or
the following acts:
(4) Of a person who, in relation to an armed
xxxx conflict and contrary to the provisions of the
Protocol on Prohibitions or Restrictions on
(c) In the case of an armed conflict the Use of Mines, Booby-Traps and Other
not of an international character, Devices as amended at Geneva on 3 May
serious violations of article 3 1996 (Protocol II as amended on 3 May
common to the four Geneva 1996), when the United States is a party to
Conventions of 12 August 1949, such Protocol, willfully kills or causes
namely, any of the following acts serious injury to civilians.86
committed against persons taking
no active part in the hostilities,
including members of armed forces
who have laid down their arms and
those placed hors de combat by
sickness, 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.

xxx

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."
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

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.

(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,

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

only applies to common law and not to the law of nations or international law.

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."

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.

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 Quirin

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."

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.

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.

Customary international law or international custom is a source of international law as

stated in the Statute of the ICJ.

It is defined as the "general and consistent practice of states recognized and followed by them
from a sense of legal obligation."

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.

State practice refers to the continuous repetition of the same or similar kind of acts or
norms by States.

It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity
and consistency; and (3) duration.

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."

"The term ‘jus cogens’ means the ‘compelling law.’"

Corollary, "a jus cogens norm holds the highest hierarchical position among all other customary
norms and principles."

As a result, 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 states cannot derogate from them, even by
agreement."
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."

"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"

and thus granting every State jurisdiction over the crime.

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,"

does not, under the premises, appear to be obtaining as reflected in this simple reality: As of
October 12, 2010, only 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

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.

(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.

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.

Even further, the Rome Statute specifically and unequivocally requires that: "This Statute
is subject to ratification, acceptance or approval by signatory States."

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."

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.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO CONCHITA CARPIO-MORALES

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice
 CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

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