BAYAN MUNA v ROMULO

F: The Rome Statute created the International Criminal Court, a court devoted to
grave crimes under international law (genocide, CA humanity, war crimes, and cr
imes of aggression). Its jurisdiction shall be complementary to national crimina
l jurisdictions. The RP signed the Rome Statute, but did not ratify it.
The Philippines and US later entered into the assailed Executive Agreement: a no
n-surrender agreement with respect to crimes committed by nationals of either co
untry in the territory of the other. [No transfer to an international tribunal w
ithout express consent of the other party] On queries on the status of the agree
ment, the US considered it a legally binding international agreement that did no
t require Senate concurrence under US law.
The petitioners impute grave abuse of discretion to the respondents in concludin
g and ratifying the agreement for violations of the Rome Statute and 'universall
y recognized principles of international law', and for being a treaty that did n
ot meet the Senate concurrence requirement.
PROCEDURAL: Whether or not the petitioners have standing.
- Petitioners have two points: (1) constitutional significance and paramount imp
ortances, and (2) emergency powers of citizens and taxpayers to question the con
stitutionality of executive issuances.
- Court: As citizens, they have a direct and personal subject matter as at the v
ery least, they assert a public right-- that the Agreement did not go against es
tablished national practices, policies and obligations. And as usual, transcende
ntal importance.
SUBSTANTIVE: Whether or not the content of the agreement is such that it should
be in the form of a treaty.
- The doctrine of incorporation is such that the Philippines adopts GP/IL as pa
rt of the law of the land.
- An exchange of notes (used interchangably with executive agreements) is a reco
rd of a routine agreement, of similar tenor as a private law contract (UN Treaty
Collections). It is resorted to for its speedy procedure, or sometimes, to avoi
d Senate concurrence. At any rate, it is recognized practice.
- Argument: Treaties and executive agreements are treated differently in IL [for
one, the concurrence requirement]. The Agreement in question, given the doctrin
e in COC v Eastern Sea Trading, involves a subject-categories that may not be co
vered by an executive agreement, such as consular relations, patent rights, trad
emark and copyright, and settlement of claims. Further, as per Adolfo v CFI Zamb
ales, such an executive agreement cannot be used to amend a treaty.
- Art. 2 of the Vienna Convention on the Law of Treaties defines a treaty as a t
ype of international agreement. International agreements may be either treaties
or executive agreements (the latter need not be concurred in by the Senate). US
scholars say that the treaty has greater dignity than an EA due to the applicati
on of the treaty clause, which allows it to take precedence over other statutes.
(however, this is persuasive opinion)
- Court: First, the categories of subject matters that may be covered by interna
tional agreements may not be cast in stone: (1) the nature of treaties and execu
tive agreements as one based on intent of the parties vis-a-vis execution under
pacta sunt servanda, and (2) the changing nature of foreign affairs (esp. consid
ering the date of the decision in Eastern Sea Trading). In addition, there also
exist certain kinds of EAs that may cover the same matters subject of an underly
ing treaty. Finally, the treaty clause does not prescribe subjects for what will
be considered as treaties and as EAs.
Reliance on Adolfo misplaced, as in that case the EA amended a treaty. It did no
t deal with the categories that may be under EAs.
- Another reason to validate the EA is with respect to RA 9851, passed 11 Dec 20
09 [after the Non-Surrender Agreement] (Philippine Act on Crimes Against IHL, et
c.), where in Sec. 17, the PPhilippine authorities may surrenderor extradite sus
pected or accused persons in thePhilippines to the appropriate international cou
rt, if any, or to another State pursuant to the applicable extradition laws and
treaties if another court or int'l tribunal is already conducting the investigat
ion/undertaking the prosecution of the crime.
- Argument: The agreement amends existing municipal laws, and cited RA 9851, whi
ch was passed years after the non-surrender agreement. Given the following sub-a
rguemnts, the agreement should have been in the form of a treaty:
"A view is advanced that the Agreement amends existing municipal laws on the Sta
tes obligation in relation to grave crimes against the law of nations, i.e., geno
cide, crimes against humanity and war crimes. Relying on the above-quoted statu
tory proviso, the view posits that the Philippine is required to surrender to th
e proper international tribunal those persons accused of the grave crimes define
d under RA 9851, if it does not exercise its primary jurisdiction to prosecute t
hem.
The basic premise rests on the interpretation that if it does not decide to pros
ecute 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 t
hese options only in cases where another court or international tribunal is alrea
dy conducting the investigation or undertaking the prosecution of such crime; oth
erwise, 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 trib
unal for any crime under RA 9851, the Philippines has the option to surrender su
ch USnational to the international tribunal if it decides not to prosecute such
US national here. The view asserts that this option of the Philippines under Se
c. 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 Philippin
es can exercise such option, requires an amendatory law. In line with this scen
ario, the view strongly argues that the Agreement prevents the Philippineswithout
the consent of the USfrom surrendering to any international tribunal US national
s accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of R
A 9851. Consequently, the view is strongly impressed that theAgreement cannot b
e embodied in a simple executive agreement in the form of an exchange of notes b
ut must be implemented through an extradition law or a treaty with the correspon
ding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Const
itution, where the Philippines adopts, as a national policy, the generally accept
ed principles of international law as part of the law of the land, the Court is f
urther impressed to perceive the Rome Statute as declaratory of customary intern
ational law. In other words, the Statute embodies principles of law which const
itute customary international law or custom and for which reason it assumes the
status of an enforceable domestic law in the context of the aforecited constitut
ional 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 amen
d or repeal, an existing law. The Agreement, so the argument goes, seeks to fru
strate the objects of the principles of law or alters customary rules embodied i
n the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers the Ag
reement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty parta
kes 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 constitu
tive of enforceable domestic law under Sec. 2, Art. II of the Constitution."
Court: As to RA 9851: it already provided for surrender (as permissive), and rec
ognition of international agreements. At any rate, there was already an extradit
ion treaty that was executed in 1994, and became PD 1069. More importantly, RA 9
851 is subsequent to the agreement (so it may be a means of amending one's munic
ipal law wrt treaty obligations).
As to GP/IL: No cited principles.
>> Whether or not the President has the power to enter into the agreement.
- By nature of the office, the President, as head of state and government, is th
e sole organ and authority in the external affairs of the country. The Constitut
ion vests him the power to enter into external agreements, subject, in appropria
te cases, to Senate concurrence. This has long been recognized in the Philippine
s.
- Hence, President Arroyo acted within the scope of her authority.
N: In Pimental Jr v ES, it was held that the President has the power to REFUSE t
o submit a treaty to the Senate, or refuse to ratify a treaty altogether in spit
e of Senate concurrence. This shows the entirely executive process of treaty rat
ification.
SUBSTANTIVE: Whether or not the EA violates the Rome Statute.
- Arguments: The Agreement undermines the jurisdiction of the ICC and violates t
he Rome Statute by placing certain individuals or groups outside their jurisdict
ion, and such is an immunity that falls outside the scope of Art. 98 of the RS.
Further, state parties with non-surrender agreements are prevented from meeting
their obligations under the RS, breaching Arts. 27, 86, 89, and 90 thereof.
To start, the Philippines is not a state-party to the Rome Statute. Under the Vi
enna Convention, signatories that have not ratified a treaty are only obliged to
refrain from such acts which would defeat the object and purpose of the treaty.
A state-party is legally obliged to follow its provisions in good faith. Effect
: It won't matter if we 'violated' the Rome Statute; it's not binding to us.
Further, the Rome Statute: (1) in Art. 1, places the ICC as a complement to nati
onal criminal jurisdictions and (2) Art. 20 further stresses that nature by unde
rscoring the primacy of state jurisdiction (xx no person who has been tried by a
nother court for conduct x x x [constituting crimes within its jurisdiction] sha
ll be tried by the [International Criminal] Court with respect to the same condu
ct xx). As to surrender, Art. 98 provides that the court may not proceed with a
request for surrender which would require the requested State to act inconsisten
tly with its obligations under international agreements pursuant to which the co
nsent 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 fo
r the giving of consent for the surrender-- precisely what the EA was actually d
oing.
In addition, the US is neither a signatory nor a state-party and that there is a
n international agreement involving extradition/surrender.
Conclusion: Even if the Philippines is a state-party, the Rome Statute recognize
s the primacy of national laws and international agreements between States, as p
er its complementary nature, even if it would affect its jurisidiction.
SUBSTANTIVE: Whether or not the EA is unconstitutional for being an abdication o
f sovereignty.
- Argument: The RP, by entering into the Agreement, does thereby abdicate its so
vereignty, abdication being done by its waiving or abandoning its right to seek
recourse through the Rome Statute of the ICC for erring Americans committing int
ernational crimes in the country
- As established, the Agreement merely affirms the Philippines' national crimina
l jurisdiction, which the Rome Statute affirms as well. The Philippines may deci
de to try Americans using Philippine law. It may opt to defer to the secondary j
urisdiction of the ICC or the US. The US, however, must etend the same privilege
with respect to Filipinos committing high crimes within the US. The basis of th
is would be the principle of extraterritorial immunity.
- Further, it is natural that sovereignty be partly abdicated whenever a country
enters into an international agreement. The Constitution, for one, did not inte
nd a hermit state. It is based on the reciprocal benefits GP/IL that is part of
our law via the incorporation clause.
RESPONSE TO CARPIO DISSENT:
Carpio: No similar American law; in US v Coolidge, the US will not try persons i
n federal courts for an international crimes unless the US Congress adopts a law
defining and punishing the offense.
- Actually the US has: Sec. 2441, Chapter 118, Pt I, Title 18 of the USCA provid
es for crimes similar to those listed in the Rome Statute and RA 9851. In respon
se to a report questioning the listing, the said report at best is only a subsid
iary means for determining rules of law (assuming the reporters were highly qual
ified publicists), and actually fails to pay attention to the fact that any gaps
in the definitions of crimes under the law are nonexistent. Even then, the repo
rt admitted that gaps in the law can be filled with US military doctrine.
- Finally, even if there is a lack of domestic legislation, the US follows the d
octrine of incorporation, as held in The Paquete Habana case. US v Coolidge deal
t with a common law issue; the crimes in the Rome Statute are international crim
es that are recognized as GP/L and customary law, with some even considering the
m JUS COGENS NORMS THAT PREEMPT TREATY OBLIGATIONS.
SUBSTANTIVE: Whether or not the Rome Statute is of the nature of a general princ
iple of IL, or a customary IL.
As for the Rome Statute, if it could be argued that is in the status of GP/L, th
e test here would be the ICJ test on state practice and opinio juris.
State practice: Lacking. Around 58% of the countries of the world ratified the s
tatute (what, you want universality?). Existence of bilateral agreements weakens
this.
Opinio juris: We haven't cared about it. The US didn't even sign.
More importantly: the Rome Statute itself rejects the concept of universal juris
diction under the Statute [requires State consent]. It also states that it is su
sceptible to ratification, acceptance and approva.