G.R. No.

L-10500

June 30, 1959

USAFFE VETERANS ASSOCIATION, INC., plaintiff-appellant,

vs.
THE TREASURER OF THE PHILIPPINES, ET AL., defendants-appellees.
Lorenzo B. Camins, Castor C. Ames and Alberto M. K. Jamir for appellant.
Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose P. Alejandro and Solicitor Jorge
R. Coquia for appellees.
BENGZON, J.:
The central issue in this litigation concerns the validity of the Romulo-Snyder Agreement (1950) whereby the
Philippine Government undertook to return to the United States Government in ten annual installments, a total of
about 35-million dollars advanced by the United States to, but unexpanded by, the National Defense Forces of the
Philippines.
In October 1954, the USAFFE Veterans Associations Inc., hereafter called Usaffe Veterans, for itself and for many
other Filipino veterans of World War II, ex-members of the United States Armed Forces in the Far East (USAFFE)
prayed in its complaint before the Manila court of first instance that said Agreement be annulled, that payments
thereunder be declared illegal and that defendants as officers of the Philippine Republic be restrained from
disbursing any funds in the National Treasury in pursuance of said Agreement. Said Usaffe Veterans further asked
that the moneys available, instead of being remitted to the United States, should be turned over to the Finance
Service of the Armed Forces of the Philippines for the payment of all pending claims of the veterans represented
by plaintiff.
The complaint rested on plaintiff's three propositions: first, that the funds to be "returned" under the Agreement
were funds appropriated by the American Congress for the Philippine army, actually delivered to the Philippine
Government and actually owned by said Government; second, that U.S. Secretary Snyder of the Treasury, had no
authority to retake such funds from the P.I. Government; and third, that Philippine foreign Secretary Carlos P.
Romulo had no authority to return or promise to return the aforesaid sums of money through the so-called
Romulo-Snyder Agreement.
The defendants moved to dismiss, alleging Governmental immunity from suit. But the court required an answer,
and then heard the case merits. Thereafter, it dismissed the complaint, upheld the validity of the Agreement and
dissolved the preliminary injunction i had previously issued. The plaintiff appealed.
On July 26, 1941, foreseeing the War in the Pacific, President Franklin D. Roosevelt, called into the service of the
Armed Forces of the United States, for the duration of the emergency, all the organized military forces of the
Philippine Commonwealth. His order was published here by Proclamation No. 740 of President Quezon on August
10, 1941. In October 1941, by two special orders, General Douglas MacArthur, Commanding General of the
United States Army Forces in the Far East (known as USAFFE) placed under his command all the Philippine
Army units including the Philippine Constabulary, about 100,000 officers and soldiers.
For the expenses incident to such incorporation, mobilization and activities, the Congress of the United States
provided in its Appropriation Act of December 17, 1941 (Public Law No. 353, 77th Congress) as follows:
For all expenses necessary for the mobilization, operation and maintenance of the Army of the
Philippines, including expenses connected with calling into the service of the armed forces of the United
States the organized military forces of the Government of the Commonwealth of the Philippines, . . . but
shall be expanded and accounted for in the manner prescribed by the President of the United States,

S269,000.00; to remain available until June 30, 1943, which shall be available for payment to the
Government of the Commonwealth of the Philippines upon its written request, either in advance of or in
reimbursement for all or any part of the estimated or actual costs, as authorized by the Commanding
General, United States Army Forces in the Far East, of necessary expenses for the purposes
aforesaid. . . . (Emphasis Ours.)
In subsequent Acts, the U.S. Congress appropriated moneys in language identical to the above: S28,313,000.00
for the fiscal year ending June 30, 1943; and S100,000,000 each year, for the fiscal years ending June 30, 1944,
June 30, 1945, and June 30, 1946.1 The last pertinent appropriation was Public law No. 301 (79th Congress)
known as the Rescission Act. It simply set aside 200 million dollars for the Army for the fiscal year ending June 30,
1946.
Now, pursuant to the power reserved to him under Public Law 353 above-quoted, President Roosevelt issued on
January 3, 1942, his executive Order No. 9011 prescribing partly as follows:
2. (a) Necessary expenditures from funds in the Philippine Treasury for the purposes authorized by the
Act of December 17, 1941, will be made by disbursing officers of the Army of the Philippines on the
approval of authority of the Commanding General, United States Army Forces in the Far East, and such
purposes as he may deem proper, and his determination thereon shall be final and conclusive upon the
accounting officers of the Philippine Government, and such expenditures will be accounted for in
accordance with procedures established by the Philippine Commonwealth Laws and regulations.
(Emphasis Ours.)
Out of the total amounts thus appropriated by the United States Congress as above itemized, P570,863,000.00
was transferred directly to the Philippines Armed Forces by means of vouchers which stated "Advance of Funds
under Public law 353-77th Congress and Executive Order No. 9011". This amount was used (mostly) to discharge
in the Philippine Islands the monetary obligations assumed by the U.S. Government as a result of the induction of
the Philippine Armed Forces into the U.S. Army, and of its operations beginning in 1941. Part of these obligations
consisted in the claims of Filipino USAFFE soldiers for arrears in pay and in the charges for supplies used by
them and the guerrillas.
Of the millions so transferred, there remained unexpended and uncommitted in the possession of the Philippine
Armed Forces as of December 31, 1949 about 35 million dollars. As at that time, the Philippine Government badly
needed funds for its activities, President Quirino, through Governor Miguel Cuaderno of the Central Bank
proposed to the corresponding officials of the U.S. Government the retention of the 35-million dollars as a loan,
and for its repayment in ten annual installments. After protracted negotiations the deal was concluded, and the
Romulo-Snyder Agreement was signed in Washington on November 6, 1950, by the then Philippine Secretary of
Foreign Affairs, Carlos P. Romulo, and the then American Secretary of the Treasury, John W. Snyder.
Principal stipulation therein was this paragraph:
3. The Government of the Republic of the Philippines further agrees to pay the dollar amount payable
hereunder to the Secretary of the Treasury of the United States in ten annual installments, the first nine
payments to be in the amount of S3,500,000.00 and the final residual payment to be in the amount
determined by deducting the total of the previous principal payments from the total amount of dollars to be
paid to the Secretary of the Treasury of the United States, the latter amount to be determined as provided
in Article II hereof. . . .
It should be added that the agreement, made on the basis of the parties' belief that S35-million was the
outstanding balance, provided in its article II for an audit by appropriate officers to compute the exact amount due.

In compliance with the Agreement, this Government has appropriated by law and paid to the United States up to
and including 1954, yearly installments totaling of P33,187,663.24. There is no reason to doubt that subsequent
budgets failed to make the corresponding appropriations for other installments.
In this appeal, the Usaffe Veterans reiterated with extended arguments, their basic propositions. They insists: first,
the money delivered to the U.S. to the Armed Forces of the Philippine Island were straight payments for military
services; ownership thereof vested in the Philippine Government upon delivery, and consequently, there was
nothing to return, nothing to consider as a loan; and second, the Romulo-Snyder Agreement was void because it
was not binding on the Philippine Government for lack of authority of the officers who concluded the same.
With regard to the first point, it must be remembered that the first Congressional Act of December 17, 1941
(Public Law No. 353) appropriating S269-million expressly said the amount "shall be available for payment to the
Government of the Commonwealth of the Philippines upon its written request, either in advance of or in
reimbursement for all or any part of the estimated or actual costs" of operation, mobilization and maintenance of
the Philippine Army. Note carefully, the money is to handled to the Philippine Government either in advance of
expenditures or in reimbursement thereof. All the vouchers signed upon receipt of the money state clearly, "
Advance of funds under Public law 353-7th Congress and Executive Order No. 9011".
In any system of accounting, advances of funds for expenditures contemplate disbursements to be reported, and
credited if approved, against such advances, the unexpended sums to be returned later. In fact, the
Congressional law itself required accounting "in the manner prescribed by the President of the U.S." and said
President in his Executive Order No. 9011, outlined the procedure whereby advanced funds shall be accounted
for. Furthermore, it requires as a condition sine qua non that all expenditures shall first be approved by the
Commanding General, United States Army Forces Army Forces in the Far East.
Now, these ideas of "funds advanced" to meet such expenditures of the Philippine Army as may be approved by
the USAFFE Commanding-General, in connection with the requirement of accounting therefor evidently contradict
appellant's thesis that the moneys represented straight payments to the Philippine Government for its armed
services, and passed into the absolute control of such Government.
In fact, the respective army officers of both nations, 2 who are presumed to know their business, have consistently
regarded the money as funds advanced, to be subsequently accounted for which means submission of
expenditures, and if approved, return of unexpended balance.
Now then, it is undeniable that upon a final rendition of accounts by the Philippine Government, a superabit
resulted of at least 35 million dollars in favor of the U. S. Instead of returning such amount in one lump sum, our
Executive Department arranged for its repayment in ten annual installments. Prima facie such arrangement
should raise no valid objection, given the obligation to return-which we know exists.
Yet plaintiff attempts to block such repayment because many alleged claims of veterans have not been processed
and paid, December 31, 1949, having been fixed as the deadline for the presentation and/or payment of such
claims. Plaintiff obviously calculates that if the return is prevented and the money kept here, it might manage to
persuade the powers-that-be extend the deadline anew. Hence the two-pronged attack: (a) no obligation to repay;
(b) the officers who promised to repay had no authority to bind this Government.
The first ground has proved untenable.
On the second, there is no doubt that President Quirino approved the negotiations. And he had power to contract
budgetary loans under Republic Act No. 213, amending the Republic Act No. 16. The most important argument,
however, rests on the lack of ratification of the Agreement by the Senate of the Philippines to make it binding on
this Government. On this matter, the defendants explain as follows:

That the agreement is not a "treaty" as that term is used in the Constitution, is conceded. The agreement
was never submitted to the Senate for concurrence (Art. VII, Sec. 10 (7). However, it must be noted that
treaty is not the only form that an international agreement may assume. For the grant of the treaty-making
power to the Executive and the Senate does not exhaust the power of the government over international
relations. Consequently, executive agreements may be entered with other states and are effective even
without the concurrence of the Senate (Sinco, Philippine Political Law, 10th ed., 303; Taada and
Fernando, Constitution of the Philippines, 4th ed., Vol. II, 1055). It is observed in this connection that from
the point of view of the international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned as long as the negotiating functionaries have
remained within their powers (Hackworth, Digest of International Law, Vol. 5, 395, citing U. S. vs.
Belmont, 301 U. S. 342, State of Russia vs. National City Bank of New York, 69 F. (2d) 44; United States
vs. Pink, 315 U. S. 203; Altman & Co., vs. United States, 224 U. S. 583. See also McDougal and Lans,
"Treaties and Executive Agreements 54 Yale Law Journal 181, 318, et seg.; and Sinco; Op. cit. 305) "The
distinction between so-called executive agreements" and "treaties" is purely a constitutional one and has
no international legal significance" (Research in International Law Draft Convention on the Law of
Treaties (Harvard Law School), Comment, 29 Am. J. Int.) Law Supp. 653, 897. See also Hackworth, op.
cit. 391).
There are now various forms of such pacts or agreements entered into by and between sovereign states
which do not necessarily come under the strict sense of a treaty and which do not require ratification or
consent of the legislative body of the State, but nevertheless, are considered valid international
agreements. In a survey of the practice of States made by Harvard Research in the Draft Convention in
the Law of Treaties (1935, pp. 711-713) it has been shown that there had been more executive
agreements entered into by States than treaties (Hudson, International Legislation, I, p. ixii-xcvii).
In the leading case of Altman vs, U. S., 224, U. S. 583, it was held that "an international compact
negotiated between the representatives of two sovereign nations and made in the name and or behalf of
the contracting parties and dealing with important commercial relations between the two countries, is a
treaty both internationally although as an executive agreement it is not technically a treaty requiring the
advice and consent of the Senate. (Herbert Briggs, The Law of Nations, 1947 ed., p. 489).
Nature of Executive Agreements.
Executive Agreements fall into two classes: (1) agreements made purely as executive acts affecting
external relations and independent of or without legislative authorization, which may be termed as
presidential agreements and (2) agreements entered into in pursuants of acts of Congress, which have
been designated as Congressional-Executive Agreements (Sinco, supra, 304; Hackworth, supra, 390;
McDougal and Lans, supra, 204-205; Hyke, International Law, 2nd ed., Vol. II; et seq.)
The Romulo-Snyder Agreement may fall under any of these two classes, for precisely on September 18,
1946, Congress of the Philippines specifically authorized the President of the Philippines to obtain such
loans or incur such indebtedness with the Government of the United States, its agencies or
instrumentalities (Republic Act No. 16, September 18, 1946, amended by Republic Act No. 213, June 1,
1948). . . .
Even granting, arguendo, that there was no legislative authorization, it is hereby maintained that the
Romulo-Snyder Agreement was legally and validly entered into to conform to the second category,
namely, "agreements entered into purely as executive acts without legislative authorization." This second
category usually includes money agreements relating to the settlement of pecuniary claims of citizens. It
may be said that this method of settling such claims has come to be the usual way of dealing with matters

of this kind (Memorandum of the Solicitor of the Department of State (Nielson) sent to Senator Lodge by
the Under-Secretary of State (Philip), August 23, 1922, MS Dept. of State, file 711.00/98a).
Such considerations seems persuasive; indeed, the Agreement was not submitted to the U.S. Senate either; but
we do not stop to check the authorities above listed nor test the conclusions derived therefrom in order to render a
definite pronouncement, for the reason that our Senate Resolution No. 15 3 practically admits the validity and
binding force of such Agreement. Furthermore, the acts of Congress Appropriating funds for the yearly
installments necessary to comply with such Agreements constitute a ratification thereof, which places the question
the validity out of the Court's reach, no constitutional principle having been invoked to restrict Congress' plenary
power to appropriate funds-loan or no loan.
In conclusion, plaintiff, to say the least, failed to make a clear case for the relief demanded; its petition was
therefore, properly denied.

G.R. No. L-14279

October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,

vs.
EASTERN SEA TRADING, respondent.
Office of the Solicitor General for petitioners.
Valentin Gutierrez for respondent.
CONCEPCION, J.:
Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of
Customs.
Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at the
Port of Manila from August 25 to September 7, 1954. Some shipments came from Japan and others from Hong
Kong. In as much as none of the shipments had the certificate required by Central Bank Circulars Nos. 44 and 45
for the release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for alleged
violations of section 1363(f) of the Revised Administrative Code, in relation to the aforementioned circulars of the
Central Bank. In due course, the Collector of Customs of Manila rendered a decision on September 4, 1956,
declaring said goods forfeited to the Government and the goods having been, in the meantime, released to the
consignees on surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as surety,
in compliance with orders of the Court of First Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof
directing that the amounts of said bonds be paid, by said principal and surety, jointly and severally, to the Bureau
of Customs, within thirty (30) days from notice.

On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on December 27,
1956. Subsequently, the consignee sought a review of the decision of said two (2) officers by the Court of Tax
Appeals, which reversed the decision of the Commissioner of Customs and ordered that the aforementioned
bonds be cancelled and withdrawn. Hence, the present petition of the Commissioner of Customs for review of the
decision of the Court of Tax Appeals.
The latter is based upon the following premises, namely: that the Central Bank has no authority to regulate
transactions not involving foreign exchange; that the shipments in question are in the nature of "no-dollar" imports;
that, as such, the aforementioned shipments do not involve foreign exchange; that, insofar as a Central Bank
license and a certificate authorizing the importation or release of the goods under consideration are required by
Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and forfeiture of the goods
imported from Japan cannot be justified under Executive Order No. 328, 1 not only because the same seeks to
implement an executive agreement2 extending the effectivity of our3 Trades and Financial Agreements4 with
Japan which (executive agreement), it believed, is of dubious validity, but, also, because there is no
governmental agency authorized to issue the import license required by the aforementioned executive order.
The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars
Nos. 44, and 45 have already been passed upon and repeatedly upheld by this Court (Pascual vs. Commissioner
of Customs, L-10979 [June 30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959]
Commissioner of Customs vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs. Serree
Investment Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274
[November 29, 1960]), for the reason that the broad powers of the Central Bank, under its charter, to maintain our
monetary stability and to preserve the international value of our currency, under section 2 of Republic Act No. 265,
in relation to section 14 of said Act authorizing the bank to issue such rules and regulations as it may consider
necessary for the effective discharge of the responsibilities and the exercise of the powers assigned to the
Monetary Board and to the Central Bank connote the authority to regulate no-dollar imports, owing to the
influence and effect that the same may and do have upon the stability of our peso and its international value.
The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be implemented
by Executive Order No. 328, owing to the fact that our Senate had not concurred in the making of said executive
agreement. The concurrence of said House of Congress is required by our fundamental law in the making of
"treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are, however, distinct and different from
"executive agreements," which may be validly entered into without such concurrence.
Treaties are formal documents which require ratification with the approval of two thirds of the Senate.
Executive agreements become binding through executive action without the need of a vote by the Senate
or by Congress.
xxx

xxx

xxx

. . . 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 into executive agreements covering such subjects as commercial and consular relations, mostfavored-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.
xxx

xxx

xxx

Agreements with respect to the registration of trade-marks have been concluded by the Executive with
various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions

regulating the reciprocal treatment of mail matters, money orders, parcel post, etc., have been concluded
by the Postmaster General with various countries under authorization by Congress beginning with the Act
of February 20, 1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the President
pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such agreements were entered
into under the Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements,
along the lines of the one with Rumania previously referred to, providing for most-favored-nation
treatment in customs and related matters have been entered into since the passage of the Tariff Act of
1922, not by direction of the Act but in harmony with it.
xxx

xxx

xxx

International agreements involving political issues or changes of national policy and those involving
international arrangements of a permanent character usually take the form of treaties. But international
agreements embodying adjustments of detail carrying out well-established national policies and traditions
and those involving arrangements of a more or less temporary nature usually take the form of executive
agreements.
xxx

xxx

xxx

Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality
of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754)
(See, also, U.S. vs. Curtis-Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301
U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale
Law Journal, Vol. 15, pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International
Law [Revised Edition], Vol. 2, pp. 1405, 1416-1418; Willoughby on the U.S. Constitutional Law, Vol. I [2d
ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law
Digest, Vol. V, pp. 390-407). (Emphasis supplied.)
In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on "The
Constitutionality of Trade Agreement Acts":
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" time 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 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 trademarks and copyrights, etcetera. 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 of the settlement of claims against foreign governments, were concluded
independently of any legislation." (39 Columbia Law Review, pp. 651, 755.)

The validity of the executive agreement in question is thus patent. In fact, the so-called Parity Rights provided for
in the Ordinance Appended to our Constitution were, prior thereto, the subject of an executive agreement,
madewithout the concurrence of two-thirds (2/3) of the Senate of the United States.
Lastly, the lower court held that it would be unreasonable to require from respondent-appellee an import license
when the Import Control Commission was no longer in existence and, hence, there was, said court believed, no
agency authorized to issue the aforementioned license. This conclusion is untenable, for the authority to issue the
aforementioned licenses was not vested exclusively upon the Import Control Commission or Administration.
Executive Order No. 328 provided for export or import licenses "from the Central Bank of the Philippines or the
Import Control Administration" or Commission. Indeed, the latter was created only to perform the task of
implementing certain objectives of the Monetary Board and the Central Bank, which otherwise had to be
undertaken by these two (2) agencies. Upon the abolition of said Commission, the duty to provide means and
ways for the accomplishment of said objectives had merely to be discharged directly by the Monetary Board and
the Central Bank, even if the aforementioned Executive Order had been silent thereon.
WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered affirming that of
the Commissioner of Customs, with cost against respondents defendant-appellee, Eastern Sea Trading. It is so
ordered.
G. R. No. 138570
October 10, 2000

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia
Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO
LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA,
PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY
RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY
ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN,
SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR
FRANCISCO TATAD, respondents.

Facts:
The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting
Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12
and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary
Siazon and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.

Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article
VII.
Following the argument of the petitioner, under they provision cited, the foreign military bases, troops, or facilities may
be allowed in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for
that purpose if so required by congress, and

c) recognized as such by the other contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty
to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.
ISSUE:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should
apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will
find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain
the valid concurrence of the senate.
The Constitution, makes no distinction between transient and permanent. We find nothing in section 25, Article XVIII
that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a treaty.

SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088

REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J.,
FAMILIES OF VICTIMS OF Puno,
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago,
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga,
Chico-Nazario, and
- versus - Garcia, JJ.
OFFICE OF THE EXECUTIVE
SECRETARY, represented by Promulgated:
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
PUNO J.:

This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court
to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987
Constitution.
The Rome Statute established the International Criminal Court which shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to
the national criminal jurisdictions. [1] Its jurisdiction covers the crime of genocide, crimes against humanity, war
crimes and the crime of aggression as defined in the Statute. [2] The Statute was opened for signature by all states
in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations
Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d
Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. [3] Its provisions, however, require that it
be subject to ratification, acceptance or approval of the signatory states. [4]
Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for
ratification.
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.
A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station.
[6]

We have held that to be given due course, a petition for mandamus must have been instituted by a party

aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said
party from the enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party in the
sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed.
[7]

The Court will exercise its power of judicial review only if the case is brought before it by a party who has the

legal standing to raise the constitutional or legal question. Legal standing means a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as a result of the government act
that is being challenged. The term interest is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental interest. [8]
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the suit as
member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of Representatives and
Chairperson of its Committee on Human Rights; the Philippine Coalition for the Establishment of the International
Criminal Court which is composed of individuals and corporate entities dedicated to the Philippine ratification of
the Rome Statute; the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of
promoting the cause of human rights and human rights victims in the country; the Families of Victims of
Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine Laws with the
avowed purpose of promoting the cause of families and victims of human rights violations in the country; Bianca
Hacintha Roque and Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the
instant petition, and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs.
Factoran, Jr.;[9] and a group of fifth year working law students from the University of the Philippines College of
Law who are suing as taxpayers.

The question in standing is whether a party has alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions. [10]
We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The other
petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the country.
They have not shown, however, that they have sustained or will sustain a direct injury from the non-transmittal of
the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of their remedies for
the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement
national criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens
against human rights violations and petitioners can always seek redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that to the extent the powers of Congress are impaired, so
is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of
that institution.[11] Thus, legislators have the standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in their office and are allowed to sue to question the validity of any official action which
they claim infringes their prerogatives as legislators. The petition at bar invokes the power of the Senate to grant
or withhold its concurrence to a treaty entered into by the executive branch, in this case, the Rome Statute. The
petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to allow it to exercise
such authority. Senator Pimentel, as member of the institution, certainly has the legal standing to assert such
authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign
Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the
Philippine Mission to the United Nations even without the signature of the President.
We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the sole organ and authority
in external relations and is the countrys sole representative with foreign nations. [12] As the chief architect of foreign
policy, the President acts as the countrys 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. [13] 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 international agreement shall be valid and effective unless concurred in by at least two-thirds of
all the Members of the Senate. The 1935 and the 1973 Constitution also required the concurrence by the
legislature to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution
provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the
Members of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and
effective unless concurred in by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to provide a check
on the executive in the field of foreign relations. [14] By requiring the concurrence of the legislature in the treaties
entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the
nations pursuit of political maturity and growth.[15]
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power
to ratify treaties belongs to the Senate.
We disagree.
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 enable
the contracting states to examine the treaty more closely and to give them an opportunity
to 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.
xxx
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. [16] [emphasis
supplied]

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 states 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 is generally held to be an
executive act, undertaken by the head of the state or of the government. [17] Thus, Executive Order No. 459 issued
by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international
agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative,
the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then
prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the

President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for
concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with
the provisions of the treaty to render it effective. Section 7 of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. The domestic requirements for the entry into force of a treaty or an executive
agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of
Foreign Affairs after their signing for the preparation of the ratification
papers. The transmittal shall include the highlights of the agreements
and the benefits which will accrue to the Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the
concerned agency, shall transmit the agreements to the President of the
Philippines for his ratification. The original signed instrument of
ratification shall then be returned to the Department of Foreign Affairs for
appropriate action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the
requirements provided in sub-paragraph[s] 1 and 2, item A (Executive
Agreements) of this Section. In addition, the Department of Foreign
Affairs shall submit the treaties to the Senate of the Philippines for
concurrence in the ratification by the President. A certified true copy of
the treaties, in such numbers as may be required by the Senate, together
with a certified true copy of the ratification instrument, shall accompany
the submission of the treaties to the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of
Foreign Affairs shall comply with the provision of the treaties in effecting
their entry into force.

Petitioners submission that the Philippines is bound under treaty law and international law to ratify the treaty
which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is
the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the
signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory
states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State.
By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such
treaty. After the treaty is signed by the states representative, the President, being accountable to the people, is
burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are
not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing

of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law
of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the
requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or
even moral duty to ratify a treaty which has been signed by its plenipotentiaries. [18] There is no legal obligation to
ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on
superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense. [19]
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.[20] 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. [21] 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, [22] such
decision is within the competence of the President alone, which cannot be encroached by this Court via a writ
of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his
official duties.[23] The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is
beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome
Statute to the Senate.
IN VIEW WHEREOF, the petition is DISMISSED.
SO ORDERED.

G.R. No. 159618 : February 1, 2011

BAYAN MUNA, as represented by REP. SATUR OCAMPO, ET AL., Petitioners, v. ALBERTO ROMULO, in his
capacity as Executive Secretary, et al., Respondents.
VELASCO, JR.,J.:
FACTS:
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
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.
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.
ViaExchange of Notes No. BFO-028-03 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.Inesse, theAgreementaims to protect what it
refers to and defines aspersons 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 theUSand 33 other countries.
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.
For their part, respondents question petitioners standing to maintain a suit and counter that the Agreement, being
in the nature of an executive agreement, does not require Senate concurrence for its efficacy. And for reasons
detailed in their comment, respondents assert the constitutionality of the Agreement.
ISSUES:
1) whether or not the Agreement was contracted validly, which resolves itself into the question of whether or not
respondents gravely abused their discretion in concluding it; and
2) whether or not the Agreement,which has not been submitted to the Senate for concurrence, contravenes and
undermines the Rome Statute and other treaties.But because respondents expectedly raised it, we shall first
tackle the issue of petitioners legal standing.
HELD: This petition is bereft of merit.
REMEDIAL LAW:locus standi of petitioner
Locus standi is a right of appearance in a court of justice on a given question. Specifically, it is a party's personal
and substantial interest in a case where he has sustained or will sustain direct injury as a result of the act being
challenged, and calls for more than just a generalized grievance. The term interest refers to material interest, as
distinguished from one that is merely incidental.The rationale for requiring a party who challenges the validity of a
law or international agreement to allege such a personal stake in the outcome of the controversy is to assure the
concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for

illumination of difficult constitutional questions.

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, suits are
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.Consequently, in a catena of
cases, this Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as concerned citizens raising
issues of transcendental importance, both for the Republic and the citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a petitioner needs to meet
certain specific requirements before he can be clothed with standing.Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc.expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have
been met have been given standing by this Court.
When suing as acitizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely
that he suffers thereby in some indefinite way.It must appear that the person complaining has been or is about to
be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of.In fine, when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.
In the case at bar, petitioners representatives have complied with the qualifying conditions or specific
requirements exacted under thelocus standirule.As citizens, their interest in the subject matter of the petition is
direct and personal.At the very least, their assertions questioning theAgreementare made of a public right,i.e., to
ascertain that theAgreementdid not go against established national policies, practices, and obligations bearing on
the States obligation to the community of nations.
POLITICAL LAW: Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-02803 cannot be a valid medium for concluding the Agreement.
Petitioners contention perhaps taken unaware of certain well-recognized international doctrines, practices, and
jargon 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. It is fairly clear from the foregoing disquisition that E/NBFO-028-03be it viewed as the NonSurrender 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.
POLITICAL LAW: Senate Concurrence Not Required; treaties
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty 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 instrumentsand whatever its particular designation.International agreements
may be in the form of (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.
Under international law, there is no difference between treaties and executive agreements in terms of their binding
effects on the contracting states concerned,as long as the negotiating functionaries have remained within their
powers.Neither,on the domestic sphere, can one be held valid if it violates the Constitution.Authorities are,
however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement
aspect. As has been observed by US constitutional scholars, a treaty has greater dignity than an executive

agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the
President, the Senate, and the people;a ratified treaty, unlike an executive agreement, takes precedence over any
prior statutory enactment.
POLITICAL LAW: The Agreement Not in Contravention of the Rome Statute
Contrary to petitioners pretense, theAgreementdoes 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.As aptly pointed out by respondents and admitted by
petitioners, the jurisdiction of the ICC is to be complementary to national criminal jurisdictions of the signatory
states. Art. 1 of the Rome Statute pertinently provides:
Article 1
The Court
AnInternational Crimininal Court(the Court) is hereby established.It x x xshall have the power to exercise its
jurisdictionover persons for the most serious crimes of international concern, as referred to in this Statute,
andshall be complementary to national criminal jurisdictions.The jurisdiction and functioning of the Court shall be
governed by the provisions of this Statute.
Significantly, 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. 1of
theRomeStatute.
Of particular note is the application of the principle ofne bis in idemunder par. 3 of Art. 20, Rome Statute, which
again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC.As far as relevant, the
provision states that no person who has been tried by another court for conduct [constituting crimes within its
jurisdiction] shall be tried by the [International Criminal] Court with respect to the same conduct.
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict
between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of
theAgreementsubstantially impairing the value of the RPs undertaking under the Rome Statute.Ignoring for a
while the fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that 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.

Given the above consideration, petitioners suggestionthat the RP, by entering into theAgreement, violated its duty
required by the imperatives of good faith and breached its commitment under the Vienna Conventionto refrain
from performing any act tending to impair the value of a treaty, e.g., the Rome Statutehas to be rejected
outright.For nothing in the provisions of the Agreement,in relation to the Rome Statute, tends to diminish the
efficacy of the Statute, let alone defeats the purpose of the ICC.Lest it be overlooked, the Rome Statute contains
a proviso that enjoins the ICC from seeking the surrender of an erring person, should the process require the
requested state to perform an act that would violate some international agreement it has entered into.We refer to
Art. 98(2) of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity and consent to surrender
2. The Court may not proceed with a request for surrender which would require the requested State to act
inconsistently with its obligations under international agreements pursuant to which the consent 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 for the giving of consent for the surrender.
Moreover, 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;whereas a State-Party, on the other hand, is legally obliged
to follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a StateParty 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.
As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from meeting
their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only
legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome
Statute. Specifically, Art. 90(4) provides that if the requesting State is a State not Party to this Statute the
requested State, if it is not under an international obligation to extradite the person to the requesting State, shall
give priority to the request for surrender from the Court In applying the provision, certain undisputed facts should
be pointed out:first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an
international agreement between the US and the Philippines regarding extradition or surrender of persons, i.e.,

the Agreement. Clearly, 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 StateParty to the Rome Statute.
POLITICAL LAW: Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its 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.Formulating petitioners argument a bit
differently, the RP,by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by
its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.
We are not persuaded.As it were, theAgreementis but a form of affirmance and confirmance of thePhilippines
national criminal jurisdiction.National criminal jurisdiction being primary, as explained above, it is always the
responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the
Rome Statute or to accede to the jurisdiction of the ICC.Thus, thePhilippinesmay decide to try persons of theUS,
as the term is understood in theAgreement, under our national criminal justice system.Or it may opt not to
exercise its criminal jurisdiction over its erring citizens or overUSpersons committing high crimes in the country
and defer to the secondary criminal jurisdiction of the ICC over them.As to persons of the US whom the
Philippines refuses to prosecute, the country would, in effect, accorddiscretion to the US to exercise either its
national criminal jurisdiction over the person concerned or to give its consent to the referral of the matter to the
ICC for trial.In the same breath, theUSmust extend the same privilege to thePhilippineswith respect to persons of
the RP committing high crimes withinUSterritorial jurisdiction.
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of
its provisions constitute a virtual abdication of its sovereignty.Almost every time a state enters into an international
agreement, it voluntarily sheds off part of its sovereignty.The Constitution, as drafted, did not envision a
reclusivePhilippinesisolated from the rest of the world.It even adheres, as earlier stated, to the policy of
cooperation and amity with all nations.
By their nature, treaties and international agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty.By their voluntary act, nations may decide to surrender or
waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction.The usual underlying consideration in this partial surrender may be the greater benefits derived from a
pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other.On
the rationale that the Philippines has adopted the generally accepted principles of international law aspart of the
law of the land, a portion of sovereignty may be waived without violating the Constitution. Such waiver does not
amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts.

POLITICAL LAW: 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; it precludes our country from delivering an
American criminal to the ICC.
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. 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.
REMEDIAL LAW: No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement.And without
specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President,
thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having been
discussed at length earlier on.As to the second portion, We wish to state thatpetitioner virtually faults the
President for performing, through respondents, a task conferred the President by the Constitutionthe power to
enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the
sole organ and authority in the external affairs of the country. The Constitution vests in the President the power to
enter into international agreements, subject, in appropriate cases, to the required concurrence votes of the
Senate.But as earlier indicated, 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, asBayanwould
put it, executive altogether.The right of the President to enter into or ratify binding executive agreements has been
confirmed by long practice.
In thus agreeing to conclude theAgreementthru E/N BFO-028-03, then President Gloria Macapagal-Arroyo,
represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in
her by the Constitution.At the end of the day, the Presidentby ratifying, thru her deputies, the non-surrender
agreementdid nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her
office.
POLITICAL LAW: Agreement Need Not Be in the Form of a Treaty
A view is advanced that the Agreement amends existing municipal laws on the States obligation in relation to
grave crimes against the law of nations,i.e., genocide, crimes against humanity and war crimes.Relying on the
above-quoted statutory proviso, the view posits that the Philippine is required to surrender to the proper
international tribunal those persons accused of the grave crimes defined under RA 9851, if it does not exercise its
primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute 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 these options only in cases where another court or
international tribunal is already conducting the investigation or undertaking the prosecution of such crime;
otherwise, 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 tribunal for any crime under RA 9851,
the Philippines has the option to surrender such US national to the international tribunal if it decides not to
prosecute such US national here.The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is
not subject to the consent of theUS, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of
the US before the Philippines can exercise such option, requires an amendatory law.In line with this scenario, the
view strongly argues that theAgreementprevents thePhilippineswithout the consent of theUSfrom surrendering to
any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec.
17 of RA 9851.Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple
executive agreement in the form of an exchange of notes but must be implemented through an extradition law or

a treaty with the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where thePhilippinesadopts,
as a national policy, the generally accepted principles of international law as part of the law of the land, the Court
is further impressed to perceivethe Rome Statute as declaratory of customary international law.In other words, the
Statute embodies principles of law which constitute customary international law or custom and for which reason it
assumes the status of an enforceable domestic law in the context of the aforecited constitutional 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 amend
or repeal, an existing law.TheAgreement, so the argument goes, seeks to frustrate the objects of the principles of
law or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it
is embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified
treaty partakes 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 constitutive of enforceable domestic law under Sec. 2, Art. II of
the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is
repugnant to RA 9851.For another, the view does not clearly state what precise principles of law, if any, the
Agreement alters.And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate
the objectives of the principles of law subsumed in the Rome Statute.
Nonetheless, despite the lack of actual domestic legislation, theUSnotably follows the doctrine of incorporation.As
early as 1900, the esteemed Justice Gray inThe Paquete Habana case already held international law as part of
the law of theUS, to wit:
International law is part of our law, and must be ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.
For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and
commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted
with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of
their authors concerning what the law ought to be, but for the trustworthy evidence of what the law really is.
Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation.The cited
ruling in U.S. v. Coolidge,which in turn is based on the holding inU.S. v. Hudson, only applies to common law and
not to the law of nations or international law.Indeed, the Court inU.S. v. Hudson only considered the question,
whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases.Stated

otherwise, there is no common law crime in the US but this is considerably different from international law.
TheUSdoubtless recognizes international law as part of the law of the land, necessarily including international
crimes, even without any local statute.In fact, years later, US courts would apply international law as a source of
criminal liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quir in the US
Supreme Court noted that from the very beginning of its history this Court has recognized and applied the law of
war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and
duties of enemy nations as well as of enemy individuals. It went on further to explain that Congress had not
undertaken the task of codifying the specific offenses covered in the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that
branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts
which that law condemns. An Act of Congress punishing the crime of piracy as defined by the law of nations is an
appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense since it has
adopted by reference the sufficiently precise definition of international law. Similarly by the reference in the 15th
Article of War to offenders or offenses that by the law of war may be triable by such military commissions.
Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are
defined as such by the law of war, and which may constitutionally be included within that jurisdiction.
This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war
crimes and crimes against humanity have attained the status of customary international law.Some even go so far
as to state that these crimes have attained the status of jus cogens.
Customary international law or international custom is a source of international law as stated in the Statute of the
ICJ. It is defined as the general and consistent practice of states recognized and followed by them from a sense of
legal obligation.In order to establish the customary status of a particular norm, two elements must concur: State
practice, the objective element; andopinio juris sive necessitates, the subjective element.
State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.It is
demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3)
duration. While,opinio juris, the psychological element, requires that the state practice or norm be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it.
The term jus cogens means the compelling law.Corollary, ajus cogensnorm holds the highest hierarchical position
among all other customary norms and principles.As a result,jus cogensnorms are deemed peremptory and nonderogable.When applied to international crimes, jus cogens crimes have been deemed so fundamental to the
existence of a just international legal order that states cannot derogate from them, even by agreement.

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may exercise jurisdiction
over an individual who commits certain heinous and widely condemned offenses, even when no other recognized
basis for jurisdiction exists.The rationale behind this principle is that the crime committed is so egregious that it is
considered to be committed against all members of the international community and thus granting every State
jurisdiction over the crime.
Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of
incorporation and universal jurisdiction to try these crimes.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of
merit.