Pimentel, Jr. vs.

Office of the Executive Secretary

G.R. No. 158088. July 6, 2005
FACTS:
Petitioners in this case filed a petition for mandamus to compel the Office of the
Exec. Sec. and the DFA to transmit the signed text of the Rome statute to the senate for
ratification because it is their theory that such ratification is a function of the senate.
In their comment, the OSG questioned the legal standing of the petitioners and
contended that the petition violates the rule on hierarchy of courts. They also argued
that exec dept has no duty to transmit the same to the Senate for concurrence.
ISSUES:
1. WON the petitioners has a legal standing

2. WON it is the duty of the executive department to transmit the Rome Statute to
the senate for ratification
RULING:
1. The court found that it was only Senator Pimentel who has a legal standing
because if the extent of powers of the Congress is impaired, the members of it
are also impaired since their office has a right to participate in the exercise of the
powers of that institution. This invokes the power of the senate to grant or
withhold its concurrence to a treaty entered into by the exec branch. Though
other petitioners have a legal standing, they failed to show that they have or they
will sustain direct injury from the non-transmittal of the said treaty.

2. NO. As the president, one is vested with the authority to deal with foreign states,
extend or withhold recognition, maintain diplomatic relations and enter into
treaties and transact business of foreign relations.

However, while the president has the power to enter in treaties, the constitution
has limited such power and required the concurrence of all the members of the
senate (2/3). Their participation is essential to provide a check on the executive
in the field of foreign relations. (Checks and balances)

Power to ratify treaties does not belong to the senate. The usual steps in treaty-
making are: negotiation, signature, ratification and exchange of instru for
ratification and it may then be submitted for registration and publication under the
UN Charter.

The purpose of ratification is to enable contracting states to examine the treaty

and give them the opportunity to refuse and is considered an executive act.
Bayan Muna vs Romulo

Facts:

- This case is about a petition for certiorari, mandamus as well as

prohibition filed by the petitioner in this case which seeks to nullify the Non
Surrender Agreement entered into by the Republic of the Philippines and the
United States of America.

- The Rome statute established the International Criminal Court which has
the power to exercise its jurisdiction over persons for the most serious crimes of
international concern and shall be complementary to the national criminal
jurisdictions on which the RP, through Enrique Manalo, is a signatory state.

- As of the filing of the petition, 92 out 139 signatory countries have

ratified and approved it. RP is not among them and then on May 2003, a US
embassy note was proposed to the DFA by a former ambassador containing the
terms of the non-surrender agreement.

- The Agreement aims to protect persons of the RP and US from

harassment suits that are possibly brought against them in international tribunals.

The agreement contains the following:

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, :

• 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

• 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]

- When asked regarding the status of the agreement, the ambassador

stated that the exchange of diplomatic notes already makes the agreement
binding to both parties and that it does no longer need the advice and consent of
the US Senate as per their local laws.

- Petitioner is contending in this case that the respondents committed

grave abuse of discretion in concluding and ratifying the agreement and seeks
for it to be struck down for being unconstitutional while the respondent contends
that it being in the nature of an executive agreement, it does not require senate
concurrence for validity.

Issues:

1. Whether the petitioner has locus standi

2. Whether the Agreement was contracted validly

3. Whether the Agreement needs to be submitted to the Senate for concurrence

4. Whether the Agreement contravenes and undermines the Rome Statute and
other treaties

Ruling:

1. No, however locus standi is merely a matter of procedure and it has been
established that suits are sometimes 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.

In order to bypass this procedural rule, the qualifications set forth by the case of
Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc must be complied with and in the case at bar, the petitioner’s
representatives have complied with the qualifications.

2. Yes, the Non-surrender agreement between RP and USA is valid.

The doctrine of incorporation can be found under 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 its policies. An exchange of notes is deemed to belong to the
category of inter-governmental agreements wherein it is an internationally
accepted form of international agreement.

Under the United Nations Treaty Collections, an exchange of notes is defined as

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.

Applying the foregoing pretenses in this case, the Non-Surrender Agreement

should be considered as a legally binding international written contract among
nations.

3. No as Senate concurrence is not required in this case.

Treaty is defined under article 2 of the Vienna convention which states that it is
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 comes in two forms. It can be:

(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.

There is no difference between treaties and executive agreements in terms of

their binding effects on the contracting states concerned so long as the
negotiating functionaries have remained within their powers under international
law however a treaty is deemed to have greater standing because a treaty needs
to have the support of the President, the Senate, and the people for its ratification
hence it takes precedence over any prior statutory enactment.

Wrongful contentions of petitioner:

1. 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 an
executive agreement through an exchange of notes cannot be used to amend a
treaty as per Adolfo vs CFI of Zambales.

- No, 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.

- 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

4. No, the agreement did not contravene the rome statute.

Petitioner contends 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.

The agreement however does not contravene the rome statute as it actually
complements with it more. 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.

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.

Moreover, there is a difference between a State-Party and a signatory to a treaty.

The former is legally obliged to follow all the provisions of a treaty in good faith
while the latter is only obliged to refrain from acts which would defeat the object
and purpose of a treaty.
In this case, Philippines is only a signatory to the Rome statute as it still lacks
ratification by the senate hence any argument obliging the Philippines to follow
any provision in the treaty would be premature.

Wrongful contentions of the petitioner:

1. The agreement takes away part of the Philippines 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

- No, the Agreement is but a form of affirmance and confirmance of the

Philippines’ national criminal jurisdiction. 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

2. The agreement is void ab initio for imposing immoral obligations for imposing
immoral obligations and/or being at variance with allegedly universally
recognized principles of international law.

- No, 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. 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.

3. The president and the secretary committed grave abuse of discretion.

- No, the case of Pimentel, Jr. v. Office of the Executive Secretary states that 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.

Is the rome statute a customary international law?

No. There is no state practice as only 114 States have ratified the Rome Statute,
subsequent to its coming into force eight (8) years earlier, or on July 1, 2002
which is roughly 58.76%. Moreover, res ipsa loquitur applies in our case basing
from the action or inaction of its top officials who does not even feel bound by the
Rome Statute.

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