Public International Law
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
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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.
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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
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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.
COMMISSIONER OF CUSTOMS & COLLECTOR OF
CUSTOMS VS. EASTERN SEA TRADING
Eastern Sea Trading (EST) was a shipping
company which imports from Japan onion and
garlic into the Philippines. In 1956, the
Commissioner of Customs ordered the seizure and
forfeiture of the import goods because EST was not
able to comply with Central Bank Circulars 44 and
45. The said circulars were pursuant to Executive
Order 328. On the other hand, EO 328 was the
implementing law of the Trades and Financial
Agreements, an executive agreement, entered into
between the Philippines and Japan. The said
executive agreement states, among others, that all
import transactions between Japan and the
Philippines should be invoiced in dollar. In this
case, the said items imported by EST from Japan
were not invoiced in dollar.
EST questioned the validity of the said EO
averring that the executive agreement that the EO
was implementing was never concurred upon by
the Senate. The issue was elevated to the Court of
Tax Appeals and the latter ruled in favor of EST.
The Commissioner appealed.
ISSUE:
Whether or not the Executive Agreement is
subject to the concurrence by the Senate.
HELD:
No, Executive Agreements are not like
treaties which are subject to the concurrence of at
least 2/3 of the members of the Senate.
Agreements concluded by the President which fall
short of treaties are commonly referred to as
executive agreements and are no less common in
our scheme of government than are the more
formal instruments — treaties and conventions.
They sometimes take the form of exchanges of
notes and at other times that of more formal
documents denominated ‘agreements’ or
‘protocols’.
The point where ordinary correspondence
between this and other governments ends and
agreements — whether denominated executive
agreements or exchanges of notes or otherwise —
begin, may sometimes be difficult of ready
ascertainment. 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- agreements
act, have been negotiated with foreign
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governments. . . . It would seem to be sufficient, in
order to show that the trade agreements under the
act of 1934 are not anomalous in character, that
they are not treaties, and that they have abundant
precedent in our history, to refer to certain classes
of agreements heretofore entered into by the
Executive without the approval of the Senate.
They cover such subjects as the inspection
of vessels, navigation dues, income tax on shipping
profits, the admission of civil aircraft, customs
matters, and commercial relations generally,
international claims, postal matters, the
registration of trade-marks and copyrights, etc.
Some of them were concluded not by specific
congressional authorization but in conformity with
policies declared in acts of Congress with respect
to the general subject matter, such as tariff acts;
while still others, particularly those with respect to
the settlement of claims against foreign
governments, were concluded independently of
any legislation.
SUPLICO VS NEDA
G.R. NO. 178830; JULY 14, 2008
FACTS:
Triple petitions for certiorari, prohibition
and mandamus, with application for the issuance
of a TRO and/or preliminary injunction were filed
and consolidated in the SC. The prayers of the said
petitions, among others, sought the annulment of
the award of the contract for the national
broadband network to respondent ZTE Corporation
and to enjoin any activity in connection with the
said deal.
On October 2, 2007, during a meeting,
Pres. GMA, acting in her official capacity informed
Pres. Hu Jintao of China that the Philippine
Government had decided not to continue with the
ZTE-NBN project. Later, the Solicitor General made
a manifestation and motion stating that in an
Indorsement by the Legal Division of the DOTC, it
has been informed that the Philippine Government
has decided not to continue with the ZTE-NBN
Project. That said, there is no more justiciable
controversy for the Court to resolve. The public
respondents then prayed that the present petitions
be dismissed.
The petitioners, in their respective replies,
argued that the Indorsement is self-serving and not
a sufficient basis that the deal has been
permanently scrapped. Assuming arguendo that
the petition has become moot, the Court may still
take cognizance thereof to educate the bench and
the bar. Further, because of the transcendental
importance of the issues raised, the Court should
take cognizance of this case despite its apparent
mootness. The petitioners ultimately contended
the declarations made by officials belonging to the
executive branch on the Philippine Government’s
decision not to continue with the ZTE -NBN Project
are self-serving, hence, inadmissible.
ISSUE:
WON the Court may take judicial notice of
the acts of President GMA?
HELD:
The SC dismissed the petition. It held that
It has no alternative but to take judicial notice of
the official act of the President.
Under the Section 1 Rule 129, it is
mandatory and the Court has no alternative but to
take judicial notice of the official acts of the
President of the Philippines, who heads the
executive branch of our government. It is further
provided in the said rule that the court shall take
judicial notice of the foregoing facts without
introduction of evidence. Since we consider the act
of cancellation by President Macapagal-Arroyo of
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the proposed ZTE-NBN Project during the meeting
of October 2, 2007 with the Chinese President in
China as an official act of the executive
department, the Court must take judicial notice of
such official act without need of evidence.
Moreover, under Section 2, paragraph (m)
of Rule 131 of the Rules of Court, the official duty
of the executive officials of informing this Court of
the government’s decision not to continue with the
ZTE -NBN Project is also presumed to have been
regularly performed, absent proof to the contrary.
The Court finds no factual or legal basis to
disregard this disputable presumption in the
present instance.
PIMENTEL V. EXECUTIVE SECRETARY
FACTS:
This is a petition of Senator Aquilino
Pimentel and the other parties to ask the Supreme
Court to require the Executive Department to
transmit the Rome Statute which established the
International Criminal Court for the Senate’s
concurrence in accordance with Sec 21, Art VII of
the 1987 Constitution.
It is the theory of the petitioners that
ratification of a treaty, under both domestic law
and international law, is a function of the Senate.
Hence, it is the duty of the executive department
to transmit the signed copy of the Rome Statute to
the Senate to allow it to exercise its discretion with
respect to ratification of treaties. Moreover,
petitioners submit that the Philippines has a
ministerial duty to ratify the Rome Statute under
treaty law and customary international law.
Petitioners invoke the Vienna Convention on the
Law of Treaties enjoining the states to refrain from
acts which would defeat the object and purpose of
a treaty when they have signed the treaty prior to
ratification unless they have made their intention
clear not to become parties to the treaty.[5]
The Office of the Solicitor General,
commenting for the respondents, questioned the
standing of the petitioners to file the instant suit. It
also contended that the petition at bar violates the
rule on hierarchy of courts. On the substantive
issue raised by petitioners, respondents argue that
the executive department has no duty to transmit
the Rome Statute to the Senate for concurrence.
ISSUE:
Whether or not the executive department
has a ministerial duty to transmit the Rome Statute
(or any treaty) to the Senate for concurrence.
RULING:
The petition was dismissed. The Supreme
Court ruled that the the President, being the head
of state, is regarded as the sole organ and
authority in external relations and is the country’s
sole representative with foreign nations. As the
chief architect of foreign policy, the President acts
as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested
with the authority to deal with foreign states and
governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign
relations. In the realm of treaty-making, the
President has the sole authority to negotiate with
other states.
Nonetheless, while the President has the
sole authority to negotiate and enter into treaties,
the Constitution provides a limitation to his power
by requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the
treaty entered into by him. Section 21, Article VII of
the 1987 Constitution provides that “no treaty or
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international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the
Members of the Senate.”
Justice Isagani Cruz, in his book on
International Law, describes the treaty-making
process in this wise:
The usual steps in the treaty-making
process are: negotiation, signature, ratification,
and exchange of the instruments of ratification.
The treaty may then be submitted for registration
and publication under the U.N. Charter, although
this step is not essential to the validity of the
agreement as between the parties.
Negotiation may be undertaken directly by
the head of state but he now usually assigns this
task to his authorized representatives. These
representatives are provided with credentials
known as full powers, which they exhibit to the
other negotiators at the start of the formal
discussions. It is standard practice for one of the
parties to submit a draft of the proposed treaty
which, together with the counter-proposals,
becomes the basis of the subsequent negotiations.
The negotiations may be brief or protracted,
depending on the issues involved, and may even
“collapse” in case the parties are unable to come
to an agreement on the points under
consideration.
If and when the negotiators finally decide
on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a
means of authenticating the instrument and for
the purpose of symbolizing the good faith of the
parties; but, significantly, it does not indicate the
final consent of the state in cases where
ratification of the treaty is required. The document
is ordinarily signed in accordance with the alternat,
that is, each of the several negotiators is allowed to
sign first on the copy which he will bring home to
his own state.
Ratification, which is the next step, is the
formal act by which a state confirms and accepts
the provisions of a treaty concluded by its
representatives. The purpose of ratification is to mandamus. This Court has no jurisdiction over
enable the contracting states to examine the treaty actions seeking to enjoin the President in the
more closely and to give them an opportunity to performance of his official duties.
refuse to be bound by it should they find it inimical
to their interests. It is for this reason that most
treaties are made subject to the scrutiny and
consent of a department of the government other
than that which negotiated them.

The last step in the treaty-making process

is the exchange of the instruments of ratification,
which usually also signifies the effectivity of the
treaty unless a different date has been agreed
upon by the parties. Where ratification is
dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed
effective upon its signature.

Petitioners’ arguments equate the signing

of the treaty by the Philippine representative with
ratification. It should be underscored that the
signing of the treaty and the ratification are two
separate and distinct steps in the treaty-making
process. As earlier discussed, the signature is
primarily intended as a means of authenticating
the instrument and as a symbol of the good faith of
the parties. It is usually performed by the state’s
authorized representative in the diplomatic
mission. Ratification, on the other hand, is the
formal act by which a state confirms and accepts
the provisions of a treaty concluded by its
representative.

It should be emphasized that under our

Constitution, the power to ratify is vested in the
President, subject to the concurrence of the
Senate. The role of the Senate, however, is limited
only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within
the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent
for its ratification, refuse to ratify it. Although the
refusal of a state to ratify a treaty which has been
signed in its behalf is a serious step that should not
be taken lightly, such decision is within the
competence of the President alone, which cannot
be encroached by this Court via a writ of