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, no Respondent "lberto Romulo deceased, as the !ecretary of Foreign "ffairs during the period material to this case. as impleaded in his capacity as then #$ecuti%e !ecretary.

Rome !tatute of the &nternational 'riminal 'ourt (a%ing a )ey determinati%e bearing on this case is the Rome !tatute establishing the &nternational 'riminal 'ourt *&''+ ,the po er to e$ercise its -urisdiction o%er persons for the most serious crimes of international concern $ $ $ and shall be complementary to the national criminal -urisdictions.. /he serious crimes ad%erted to co%er those considered gra%e under international la , such as genocide, crimes against humanity, ar crimes, and crimes of aggression. hich, by its terms, is ith

On 0ecember 12, 1333, the RP, through 'harge d4"ffaires #nri5ue ". Manalo, signed the Rome !tatute

,sub-ect to ratification, acceptance or appro%al. by the signatory states. "s of the filing of the instant petition, only 61 out of the 786 signatory countries appear to ha%e completed the ratification, appro%al and concurrence process. /he Philippines is not among the 61. RP-9! :on-!urrender "greement On May 6, 1338, then "mbassador Francis ;. Ricciardone sent 9! #mbassy :ote :o. 3<=3 to the 0epartment of Foreign "ffairs *0F"+ proposing the terms of the non-surrender bilateral agreement *"greement, hereinafter+ bet een the 9!" and the RP. >ia #$change of :otes :o. BFO-312-38= dated May 78, 1338 *#?: BFO-312-38, hereinafter+, the RP, represented by then 0F" !ecretary Ople, agreed effect the "greement ith and accepted the 9! proposals embodied under the 9! #mbassy :ote ad%erted to and put in ith the 9! go%ernment. &n esse, the "greement aims to protect hat it refers to and defines as

,persons. of the RP and 9! from fri%olous and harassment suits that might be brought against them in international tribunals.2 &t is reflecti%e of the increasing pace of the strategic security and defense partnership bet een the t o countries. "s of May 1, 1338, similar bilateral agreements ha%e been effected by and bet een the 9! and 88 other countries. /he "greement pertinently pro%ides as follo s: 7. For purposes of this "greement, ,persons. are current or former @o%ernment officials, employees *including contractors+, or military personnel or nationals of one Party. 1. Persons of one Party present in the territory of the other shall not, absent the e$press consent of the first Party, *a+ be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established by the 9: !ecurity 'ouncil, or *b+ be surrendered or transferred by any means to any other entity or third country, or e$pelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the 9: !ecurity 'ouncil. 8. Ahen the B9!C e$tradites, surrenders, or other ise transfers a person of the Philippines to a third country, the B9!C ill 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 9: !ecurity 'ouncil, absent the e$press consent of the @o%ernment of the Republic of the Philippines B@RPC. <. Ahen the B@RPC e$tradites, surrenders, or other ise transfers a person of the B9!"C to a third country, the B@RPC been established by the 9: !ecurity 'ouncil, absent the e$press consent of the @o%ernment of the B9!C. D. /his "greement shall remain in force until one year after the date on allegation arising, before the effecti%e date of termination. &n response to a 5uery of then !olicitor @eneral "lfredo E. Benipayo on the status of the non-surrender agreement, "mbassador Ricciardone replied in his letter of October 12, 1338 that the e$change of diplomatic notes constituted a legally binding agreement under international la F and that, under 9! la , the said agreement did not re5uire the ad%ice and consent of the 9! !enate. &n this proceeding, petitioner imputes gra%e abuse of discretion to respondents in concluding and ratifying the "greement and prays that it be struc) do n as unconstitutional, or at least declared as immoral or other ise at %ariance ithout force and effect. Issue: Ahether or not the RP-9! :O: !9RR#:0#R "@R##M#:/ is %oid ab initio for contracting obligations that are either ith uni%ersally recognized principles of international la . Rul n!: /he petition is bereft of merit. >alidity of the RP-9! :on-!urrender "greement hich one party notifies the other of its intent to ith respect to any act occurring, or any ill not

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

terminate the "greement. /he pro%isions of this "greement shall continue to apply

Petitioner4s initial challenge against the "greement relates to form, its threshold posture being that #?: BFO-312-38 cannot be a %alid medium for concluding the "greement. Petitioners4 contentionGGperhaps ta)en una are of certain ell-recognized international doctrines, practices, and -argonsGGis herein the of and international -urisprudence as part of the la ith all nations. "n e$change of notes falls ,into the

untenable. One of these is the doctrine of incorporation, as e$pressed in !ection 1, "rticle && of the 'onstitution, Philippines adopts the generally accepted principles of international la the land and adheres to the policy of peace, cooperation, and amity category of inter-go%ernmental agreements,.

hich is an internationally accepted form of international agreement. /he 9nited

:ations /reaty 'ollections */reaty Reference @uide+ defines the term as follo s: "n ,e$change of notes. is a record of a routine agreement, that has many similarities ith the pri%ate la contract. /he

agreement consists of the e$change of t o documents, each of the parties being in the possession of the one signed by the representati%e of the other. 9nder the usual procedure, the accepting !tate repeats the te$t of the offering !tate to record its assent. /he signatories of the letters may be go%ernment Ministers, diplomats or departmental heads. /he techni5ue of e$change of notes is fre5uently resorted to, either because of its speedy procedure, or, sometimes, to a%oid the process of legislati%e appro%al. &n another perspecti%e, the terms ,e$change of notes. and ,e$ecuti%e agreements. ha%e been used interchangeably, e$change of notes being considered a form of e$ecuti%e agreement that becomes binding through e$ecuti%e action. On the other hand, e$ecuti%e agreements concluded by the President ,sometimes ta)e the form of e$change of notes and at other times that of more formal documents denominated Hagreements4 or Hprotocols.4. "s former 9! (igh 'ommissioner to the Philippines Francis B. !ayre obser%ed in his /he point or), /he 'onstitutionality of /rade "greement "cts: hether denominated

here ordinary correspondence bet een this and other go%ernments ends and agreements G

e$ecuti%e agreements or e$change of notes or other ise G begin, may sometimes be difficult of ready ascertainment. $ $ $ &t is fairly clear from the foregoing dis5uisition that #?: BFO-312-38GGbe it %ie ed as the :on-!urrender "greement itself, or as an integral instrument of acceptance thereof or as consent to be boundGGis a recognized mode of concluding a legally binding international ritten contract among nations. "greement :ot &mmoral?:ot at >ariance ith Principles of &nternational Ea Petitioner urges that the "greement be struc) do n as %oid ab initio for imposing immoral obligations and?or being at %ariance ith allegedly uni%ersally recognized principles of international la . /he immoral aspect proceeds from the fact that the "greement, as petitioner ould put it, ,lea%es criminals immune from responsibility for unimaginable atrocities that deeply shoc) the conscience of humanityF $ $ $ it precludes our country from deli%ering an "merican criminal to the B&''C $ $ $..I8 /he abo%e argument is a )ind of recycling of petitioner4s earlier position, Rome !tatute, contrary to international la principles. hich, as already discussed, contends that the RP, by

entering into the "greement, %irtually abdicated its so%ereignty and in the process undermined its treaty obligations under the

/he 'ourt is not persuaded. !uffice it to state in this regard that the non-surrender agreement, as aptly described by the !olicitor @eneral, ,is an assertion by the Philippines of its desire to try and punish crimes under its national la . $ $ $ /he agreement is a recognition of the primacy and competence of the country4s -udiciary to try offenses under its national criminal la s and dispense -ustice fairly and -udiciously.. Petitioner, e belie%e, labors under the erroneous impression that the "greement ould allo Filipinos and "mericans

committing high crimes of international concern to escape criminal trial and punishment. /his is manifestly incorrect. Persons ho may ha%e committed acts penalized under the Rome !tatute can be prosecuted and punished in the Philippines or in the 9!F or ith the consent of the RP or the 9!, before the &'', assuming, for the nonce, that all the formalities necessary to bind hat the "greement conte$tually prohibits is the ithout the consent of the other party, hich e ta)e of things, there is nothing immoral or both countries to the Rome !tatute ha%e been met. For perspecti%e,

surrender by either party of indi%iduals to international tribunals, li)e the &'', may desire to prosecute the crime under its e$isting la s. Aith the %ie %iolati%e of international la

concepts in the act of the Philippines of assuming criminal -urisdiction pursuant to the non-

surrender agreement o%er an offense considered criminal by both Philippine la s and the Rome !tatute