BAYAN MUNA VS.

ROMULO

MARCH 30, 2013 ~ VBDIAZ

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.

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established

by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of

surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to

the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by

the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to

the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by

the UN Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the

Agreement. The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising,

before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement, Ambassador

Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement

under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate.

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays

that it be struck down as unconstitutional, or at least declared as without force and effect.

Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting obligations that are either

immoral or otherwise at variance with universally recognized principles of international law.

Ruling: The petition is bereft of merit.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid

medium for concluding the Agreement.

untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the

Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land

and adheres to the policy of peace, cooperation, and amity with all nations. An exchange of notes falls “into the category of inter-

governmental agreements,” which is an internationally accepted form of international agreement. The United Nations Treaty

Collections (Treaty Reference Guide) defines the term as follows:

An “exchange of notes” is a record of a routine agreement, that has many similarities with the private law contract. The agreement

consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the

other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the

letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to,

either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.

In another perspective, the terms “exchange of notes” and “executive agreements” have been used interchangeably, exchange of notes

being considered a form of executive agreement that becomes binding through executive action. On the other hand, executive

agreements concluded by the President “sometimes take the form of exchange of notes and at other times that of more formal

documents denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the Philippines Francis B. Sayre observed

in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and agreements – whether denominated executive

agreements or exchange of notes or otherwise – begin, may sometimes be difficult of ready ascertainment. x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement itself, or as an

integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a legally binding

international written contract among nations.

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with

allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as

petitioner would put it, “leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of

humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x.”63
The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed, contends that the RP, by

entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome

Statute, contrary to international law principles.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor

General, “is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a

recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal laws and dispense

justice fairly and judiciously.”

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing

high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have

committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent

of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome

Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to

international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing

laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines

of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine

laws and the Rome Statute.

FACTS: In 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.

In 2003, via Exchange of Notes with the US government, the RP, represented by then DFA Secretary Ople, finalized a non-
surrender agreement which aimed to protect certain persons of the RP and US from frivolous and harassment suits that
might be brought against them in international tribunals.

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: [1] Did respondents abuse their discretion amounting to lack or excess of jurisdiction in
concluding the RP-US Non Surrender Agreement in contravention of the Rome Statute?
[2] Is the agreement valid, binding and effective without the concurrence by at least 2/3 of all the
members of the Senate?
HELD: 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. According to Art. 1 of the Statute, the jurisdiction of the ICC is to “be complementary to national
criminal jurisdictions [of the signatory states].” 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.

Also, 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. 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. And 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.

The 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.

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. DISMISSED.
Belgium v. Senegal)

OVERVIEW OF THE CASE

On 19 February 2009, Belgium filed an Application instituting proceedings against Senegal relating to Mr. Hissène Habré,
the former President of Chad and resident in Senegal since being granted political asylum by the Senegalese Government
in 1990. Belgium submitted that, by failing to prosecute Mr. Habré for certain acts he was alleged to have committed during
his presidency, including acts of torture and crimes against humanity, or to extradite him to Belgium, Senegal had violated
the so-called obligation aut dedere aut judicare (that is to say, “to prosecute or extradite”) provided for in Article 7 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and in customary
international law.

On the same day, Belgium filed a request for the indication of provisional measures, asking the Court to order “Senegal to
take all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of
Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied”. Belgium
justified this request by reference to certain statements made by Mr. Abdoulaye Wade, President of the Republic of Senegal,
which, according to Belgium, indicated that, if Senegal could not secure the necessary funding to try Mr. Habré, it would
“cease monitoring him or transfer him to another State”.

In its Order of 28 May 2009, referring to the assurances given by Senegal during the oral proceedings that it would not allow
Mr. Habré to leave its territory while the case was pending, the Court concluded that there was no risk of irreparable
prejudice to the rights claimed by Belgium and that there did not exist any urgency to justify the indication of provisional
measures.

In its Judgment dated 20 July 2012, the Court began by examining the questions raised by Senegal relating to its jurisdiction
and to the admissibility of Belgium’s claims. Having pointed out that the existence of a dispute is a condition of its jurisdiction
under both bases of jurisdiction invoked by Belgium — Article 30, paragraph 1, of the Convention against Torture and the
declarations made by both States under Article 36, paragraph 2, of the Statute — the Court considered that, since any
dispute that may have existed between the Parties with regard to the interpretation or application of Article 5, paragraph 2,
of the Convention against Torture had ended by the time the Application was filed, it lacked jurisdiction to decide on
Belgium’s claim relating to that provision. Article 5, paragraph 2, of the said Convention obliges the States parties thereto
to establish the universal jurisdiction of their courts over the crime of torture. The Court found, however, that it did have
jurisdiction to entertain Belgium’s claims based on the interpretation and application of Article 6, paragraph 2, and Article 7,
paragraph 1, of the Convention. It further considered, on the basis of the international arrest warrant issued against Mr.
Habré by Belgium, the extradition request transmitted to Senegal and the diplomatic exchanges between the two Parties,
that, at the time of the filing of the Application instituting proceedings, there was no dispute between the Parties regarding
Senegal’s obligation to prosecute or extradite Mr. Habré for crimes he was alleged to have committed under customary
international law. The Court observed that, consequently, while the facts which constituted those alleged crimes may have
been closely connected to the alleged acts of torture, it did not have jurisdiction to entertain the issue whether there existed
an obligation for a State to prosecute crimes under customary international law allegedly committed by a foreign national
abroad.
The Court then turned to the conditions which have to be met in order for it to have jurisdiction under Article 30, paragraph
1, of the Convention against Torture, namely that the dispute cannot be settled through negotiation and that, after a request
for arbitration has been made by one of the parties, they have been unable to agree on the organization of the arbitration
within six months from that request. Having found that these conditions had been met, the Court concluded that it had
jurisdiction to entertain the dispute between the Parties concerning the interpretation and application of Article 6, paragraph
2, and Article 7, paragraph 1, of the Convention. It ruled, however, that it was not necessary for it to establish whether its
jurisdiction also existed with regard to the same dispute on the basis of the declarations made by the Parties under Article
36, paragraph 2, of its Statute.

With respect to the admissibility of Belgium’s claims, the Court ruled that once any State party to the Convention against
Torture was able invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply
with its obligations erga omnes partes, i.e., obligations owed toward all States parties, Belgium, as a party to the said
Convention, had standing to invoke the responsibility of Senegal for the alleged breaches of its obligations under Article 6,
paragraph 2, and Article 7, paragraph 1, of that Convention. The Court thus found that Belgium’s claims based on those
provisions were admissible.

As regards the alleged violation of Article 6, paragraph 2, of the Convention against Torture, which provides that a State
party in whose territory a person alleged to have committed acts of torture is present must “immediately make a preliminary
inquiry into the facts”, the Court noted that Senegal had not included in the case file any material demonstrating that it had
carried out such an inquiry. The Court further observed that, while the choice of means for conducting the inquiry remained
in the hands of the States parties, taking account of the case in question, Article 6, paragraph 2, of the Convention requires
that steps must be taken as soon as the suspect is identified in the territory of the State, in order to conduct an investigation
of that case. In the present case, the establishment of the facts had become imperative at least since the year 2000, when
a complaint was filed in Senegal against Mr. Habré. Nor had an investigation been initiated in 2008, when a further complaint
against Mr. Habré was filed in Dakar, after the legislative and constitutional amendments made in 2007 and 2008,
respectively. The Court concluded from the foregoing that Senegal had breached its obligation under the above-mentioned
provision

With respect to the alleged violation of Article 7, paragraph 1, of the Convention against Torture, the Court first examined
the nature and meaning of the obligation laid down in that provision. It observed that the obligation to submit the case to the
competent authorities for the purpose of prosecution (the “obligation to prosecute”) deriving from that provision was
formulated in such a way as to leave it to the said authorities to decide whether or not to initiate proceedings, thus respecting
the independence of States parties’ judicial systems : those authorities thus remain responsible for deciding on whether to
initiate a prosecution, in the light of the evidence before them and of the relevant rules of criminal procedure. The Court
further observed that the obligation to prosecute requires the State concerned to submit the case to its competent authorities
for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect. It noted,
however, that, if the State in whose territory the suspect is present has received a request for extradition in any of the cases
envisaged in the provisions of the Convention, it may relieve itself of its obligation to prosecute by acceding to that request.
It thus concluded that extradition was an option offered to the State by the Convention, whereas prosecution was an
international obligation under the Convention, the violation of which was a wrongful act engaging the responsibility of the
State.
The Court then turned to the temporal scope of the obligation laid down in Article 7, paragraph 1, of the Convention. It noted
in this respect that, while the prohibition of torture was part of customary international law and had become a peremptory
norm (jus cogens), the obligation to prosecute the alleged perpetrators of acts of torture under the Convention applied only
to facts having occurred after its entry into force for the State concerned. The Court concluded from the foregoing that
Senegal’s obligation to prosecute pursuant to Article 7, paragraph 1, of the Convention did not apply to acts alleged to have
been committed before the Convention entered into force for Senegal on 26 June 1987, although there was nothing in that
instrument to prevent it from instituting proceedings concerning acts that were committed before that date. The Court found
that Belgium, for its part, was entitled, with effect from 25 July 1999, the date when it became party to the Convention, to
request the Court to rule on Senegal’s compliance with its obligation under Article 7, paragraph 1, of the Convention.

Finally, the Court examined the question of the implementation of the obligation to prosecute. It concluded that the obligation
laid down in Article 7, paragraph 1, required Senegal to take all measures necessary for its implementation as soon as
possible, in particular once the first complaint had been filed against Mr. Habré in 2000. Having failed to do so, Senegal had
breached and remained in breach of its obligations under Article 7, paragraph 1, of the Convention.

The Court found that, by failing to comply with its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the
Convention, Senegal had engaged its international responsibility. Therefore, it was required to cease that continuing
wrongful act and to take, without further delay, the necessary measures to submit the case to its competent authorities for
the purpose of prosecution, if it did not extradite Mr. Habré.