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Bayan Muna vs Romulo

G. R. No. 159618, February 01, 2011


Facts:
Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during
the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then
Executive Secretary.

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute establishing the International
Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes
of international concern x x x and shall be complementary to the national criminal jurisdictions.” The
serious crimes adverted to cover those considered grave under international law, such as genocide,
crimes against humanity, war crimes, and crimes of aggression.

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute
which, by its terms, is “subject to ratification, acceptance or approval” by the signatory states. As of the
filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the
ratification, approval and concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under
the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the
Agreement aims to protect what it refers to and defines as “persons” of the RP and US from frivolous and
harassment suits that might be brought against them in international tribunals.8 It is reflective of the
increasing pace of the strategic security and defense partnership between the two countries. As of May 2,
2003, similar bilateral agreements have been effected by and between the US and 33 other countries.

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, “persons” are current or former Government officials, employees
(including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express consent of the
first Party,

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

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third
country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has
been established by the UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third
country, the [US] will not agree to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country,
the [GRP] will not agree to the surrender or transfer of that person by the third country to any international
tribunal, unless such tribunal has been established by the UN Security Council, absent the express
consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies the other
of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with
respect to any act occurring, or any allegation arising, before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender
agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of
diplomatic notes constituted a legally binding agreement under international law; and that, under US law,
the said agreement did not require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying
the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force
and effect.

Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting
obligations that are either immoral or otherwise at variance with universally recognized principles of
international law.
Ruling: The petition is bereft of merit.
Validity of the RP-US Non-Surrender Agreement

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

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines,


practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of
international law and international jurisprudence as part of the law of the land and adheres to the policy of
peace, cooperation, and amity with all nations. An exchange of notes falls “into the category of inter-
governmental agreements,” which is an internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:

An “exchange of notes” is a record of a routine agreement, that has many similarities with the private law
contract. The agreement consists of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its assent. The signatories of the letters
may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of
legislative approval.

In another perspective, the terms “exchange of notes” and “executive agreements” have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action. On the other hand, executive agreements concluded by the President
“sometimes take the form of exchange of notes and at other times that of more formal documents
denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the Philippines Francis B.
Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and agreements –
whether denominated executive agreements or exchange of notes or otherwise – begin, may sometimes
be difficult of ready ascertainment. x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a
recognized mode of concluding a legally binding international written contract among nations.

Agreement Not Immoral/Not at Variance


with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally recognized principles of international law. The immoral
aspect proceeds from the fact that the Agreement, as petitioner would put it, “leaves criminals immune
from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it
precludes our country from delivering an American criminal to the [ICC] x x x.”63

The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed,
contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the
process undermined its treaty obligations under the Rome Statute, contrary to international law principles.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly
described by the Solicitor General, “is an assertion by the Philippines of its desire to try and punish crimes
under its national law. x x x The agreement is a recognition of the primacy and competence of the
country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and
judiciously.”

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos
and Americans committing high crimes of international concern to escape criminal trial and punishment.
This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute
can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US,
before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the
Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, like the ICC, without the consent of the
other party, which may desire to prosecute the crime under its existing laws. With the view we take of
things, there is nothing immoral or violative of international law concepts in the act of the Philippines of
assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
Bayan Muna v. Romulo and Ople

Facts
Then US Ambassador Francis Ricciardone sent US Embassy Note 0470 to the DFA proposing the terms
of the Non-surrender Bilateral Agreement between the Philippines and the US. Via Exchange of Notes
BFO-028-03, the Philippines, through Sec. Ople, agreed and accepted the US proposals embodied under
the US Embassy Note and put in effect the Non-surrender Agreement with the US government.

The Non-surrender Agreement aims to protect what it refers to and defines as persons of the Philippines
and the US from frivolous and harassment suits that might be brought against them in international
tribunals. It provides that the persons of one party present in the territory of the other shall not, absent the
express consent of the first party be surrendered or transferred by any means to any international tribunal
for any purpose or by any means to any other entity or third country or expelled to a third country for the
purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established
by the UN Security Council. When the US/Philippines extradites, surrenders, or otherwise transfers a
person of the Philippines/US to a third country, the US/Philippines will not agree to the surrender or
transfer of that person by the third country to any international tribunal, unless such tribunal has been
established by the UN Security Council, absent the express consent of the Government of the
US/Philippines.

Petitioners argue that the Exchange of Notes BFO-028-03 cannot be a valid medium for concluding an
agreement, that it cannot partake the nature of a treaty without being ratified by the Senate, that the Non-
surrender Agreement does not fall under any subject-categories enumerated in a previous case, and that
the Non-surrender Agreement infringes the effectivity of the Rome Statute insofar as it unduly restricts
the ICC’s jurisdiction.

Issues
1) Can the Non-surrender Agreement be validly concluded through exchanges of notes? Is the Non-
surrender Agreement a violation of the obligation of the Philippines under the Rome Statute?

Held
The Petition is denied for lack of merit.

Ratio
1) An exchange of notes falls into the category of inter-governmental agreements which is an
internationally accepted form of international agreement. It as a record of routine agreement that has
many similarities with the private law contract. The agreement consists of 2 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. The terms exchanges of notes and executive
agreements have been used interchangeably, the former being a form of executive agreement that
becomes binding through executive action.

The categorization of subject matters that may be covered by international agreements mentioned in
Eastern Sea Trading case is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or executive agreement as an instrument of international
relations. The primary consideration in the choice of the form of agreement is the parties’ intent and
desire to craft an international agreement in the form they so wish to further their respective interests.

There is no difference between treaties and executive agreements in terms of their binding effects on
the contracting parties, as long as the negotiating functionaries have remained within their powers.
The right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage, the validity of which has never been
seriously questioned by the Court. 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 to the required concurrence votes of the Senate. But
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 executive altogether. The
President by ratifying through her deputies the Non-surrender agreement, did nothing more than
discharge a constitutional duty and exercise a prerogative that pertains to the Office.

2) The Non-surrender agreement does not undermine the Rome Statute. The jurisdiction of the ICC is to
be complementary to national criminal jurisdiction of signatory states. It is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes. The 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. The Non-surrender
agreement does not violate the Philippines’ duty required by the imperatives of good faith to refrain
from performing any act tending to impair the Rome Statute.
The Philippines has not abdicated its sovereignty by bargaining away the jurisdiction of the ICC to
prosecute US national who commit serious crimes of international concerns in the Philippines. The
Non-surrender agreement is an affirmance of the Philippines’ national criminal jurisdiction. The
Philippines may decide to try persons of the US under our national criminal jurisdiction. Or the country
may opt not to exercise its criminal jurisdiction and defer to the ICC. As to persons of the US whom
the Philippines refuses to prosecute, the country would in effect accord discretion to the US to
exercise wither its national criminal jurisdiction or consent to the referral of the matter to the ICC for
trial. By their nature, international agreements actually have a limiting effect on the otherwise
encompassing nature of sovereignty. By their voluntary act, nations may decide to surrender or waive
some aspects of their state power. In this partial surrender, greater benefits are derived from a pact or
reciprocal undertaking. Evidently, there is as yet, no overwhelming consensus, let alone prevalent
practice, among the different countries in the world that the prosecution of internationally recognized
crimes should be handled by a particular international criminal court.

Rome Statute – This establishes the International Criminal Court with the power to exercise
jurisdiction over persons for the most serious crimes of international concern and shall be
complementary to the national criminal jurisdiction. Under the Vienna Convention on the Law of
Treaties:
1) State Party – is legally obliged to follow all the provisions of a treaty in good faith
2) Signatory State – is only obliged to refrain from acts which would defeat the object and purpose
of a treaty.

As of writing the ponencia, the Philippines is only a signatory state to the Rome Statute and not a
State Party for lack of ratification by the Senate. Any argument obliging the Philippines to follow any
provision in the treaty would be premature.

Treaty – 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 instruments and
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 that treaties.

Sources of International Law


1) International conventions, whether general or particular, establishing rules expressly recognized
by the contesting states
2) International custome, as evidence of a general practice accepted as law
3) General principles of law recognized by civilized nations
4) Judicial decisions and teachings of the most highly qualified publicists of the various nations

Doctrine of incorporation – 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. 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.

Customary international law – or international custom is a source of international law as stated in the
Statute of the International Court of Justice, defined as the general and consistent practice of states
recognized and followed by them from a sense of legal obligation.

1) State practice – the objective element, generality, uniformity and consistency.


2) Opinio juris – the subjective 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.
Once the existence of state practice has been extablished, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter or courtesy? Opinio juris or the belief
that a certain form of behavior is obligatory, is what makes practice international rule. Without it,
practice is not law.

Jus cogens – means the compelling law. It holds the highest hierarchical position among all other
customary norms and principles. Jus cogens norms are deemed peremptory and non-derogable.
When applied to international crimes, jus cogens crimes have been deemed so fundamental to the
existence of a just international legal order that state cannot derogate from them, even by agreement.
Pimentel v. Executive Secretary Digest
G.R. No. 158088 July 6, 2005

Facts:

1. The petitioners filed a petition for mandamus 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 Philippinesfor its concurrence pursuant to Sec. 21, Art VII of the 1987
Constitution.

2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most serious
crimes as genocide, crimes against humanity, war crimes and crimes of aggression as defined by the
Statute. The Philippines through the Chargie du Affairs in UN. The provisions of the Statute however
require that it be subject to ratification, acceptance or approval of the signatory state.

3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a function
of the Senate, hence it is the duty of the Executive Department to transmit the signed copy to the senate
to allow it to exercise its discretion.

Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the
Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N.
even without the signature of the President.

The Supreme Court held NO.

1. The President as the head of state is the sole organ and authorized in the external relations and he is
also the country's sole representative with foreign nations, He is the mouthpiece with respect to the
country's foreign affairs.

2. In treaty-making, the President has the sole authority to negotiate with other states and enter into
treaties but this power is limited by the Constitution with the 2/3 required vote of all the members of the
Senate for the treaty to be valid. (Sec. 21, Art VII).

3. The legislative branch part is essential to provide a check on the executive in the field of foreign
relations, to ensure the nation's pursuit of political maturity and growth.

Pimentel vs. Executive Secretary


Facts
This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to require
the Executive Department to transmit the Rome Statute which established the International Criminal
Court for the Senate’s concurrence in accordance with Sec 21, Art VII of the 1987 Constitution.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law,
is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy
of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of
treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute
under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of
Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty
when they have signed the treaty prior to ratification unless they have made their intention clear not to
become parties to the treaty.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the
petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of
courts. On the substantive issue raised by petitioners, respondents argue that the executive department
has no duty to transmit the Rome Statute to the Senate for concurrence.

Issue
Whether or not the executive department has a ministerial duty to transmit the Rome Statute (or any
treaty) to the Senate for concurrence.

Ruling
The petition was dismissed. The Supreme Court ruled that the the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the country’s sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece
with respect to international affairs. Hence, the President is vested with the authority to deal with foreign
states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution
provides that “no treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.”
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the
instruments of ratification. The treaty may then be submitted for registration and publication under the
U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for
one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals,
becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even “collapse” in case the parties are unable to come to an
agreement on the points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature.
This step is primarily intended as a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the
state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance
with the alternate, 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.
The last step in the treaty-making process is the exchange of the instruments of ratification, which usually
also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties.
Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is
deemed effective upon its signature.
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It
should be underscored that the signing of the treaty and the ratification are two separate and distinct
steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of
authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by
the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the
formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representative.
It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject
to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding
its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to
submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although
the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not
be taken lightly, such decision is within the competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to
enjoin the President in the performance of his official duties.
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,
vs.
EASTERN SEA TRADING, respondent.
G.R. No. L-14279
October 31, 1961
Topic: Executive Agreements

NATURE OF THE CASE


This is a petition for review of a decision of the Court of Tax Appeals, which reversed a decision of the
Commissioner of Customs

FACTS
Several onion and garlic shipments imported by respondent consignee from Hongkong and Japan were
seized and subjected to forfeiture proceedings for alleged violations of Section 1363 of the Revised
Administrative Code. Allegedly, none of the shipments had the certificate required by Central Bank
Circulars 44 and 45 (requiring a Central Bank license and a certificate authorizing the importation or
release of the subject good ) for their release. The Collector of Customs of Manila rendered judgment
declaring the forfeiture of the goods in favor of the Government. Upon appeal, the Commissioner of
Customs upheld the Collector’s decision. Respondent filed a petition for review with the Court of Tax
Appeals. The CTA reversed the Commissioner’s decision. Hence, this present petition.

ISSUES
1. Whether the seizure and forfeiture of the goods imported from Japan can be justified under EO 328
(which implements an executive agreement extending the effectivity of the Trades and Financial
Agreements of the Philippines with Japan) ---YES.
2. Whether the executive agreement sought to be implemented by EO 328 is legal and valid, considering
that the Senate has not concurred in the making of said executive agreement ---NO.

RULING
Treaties are different from executive agreements. While treaties are formal documents which require
ratification by the Senate, executive agreements become binding through executive action without the
need of a vote by the Senate or Congress. Further, 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; on the other hand, 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.

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, most-
favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned by
our courts.

Francis Saye, former US High Commissioner to the Philippines, further states that xxx 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 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

The Parity Rights Agreement, which was provided for in the Ordinance Appended to the Constitution was
the subject of an executive agreement, made without the concurrence of 2/3 of the Senate of the US.
Hence, the validity of the executive agreement in question in this case is patent.

The authority to issue import licenses was not vested exclusively upon the Import Control Commission or
Administration. EO 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.
The decision of the CTA is reversed.
Commissioner of Customs vs Eastern Sea Trading
3 SCRA 351 – Political Law – Constitutional Law – Treaties vs Executive Agreements
Eastern Sea Trading (EST) was a shipping company which imports from Japan onion and garlic into the
Philippines. In 1956, the Commissioner of Customs ordered the seizure and forfeiture of the import goods
because EST was not able to comply with Central Bank Circulars 44 and 45. The said circulars were
pursuant to Executive Order 328. On the other hand, EO 328 was the implementing law of the Trades
and Financial Agreements, an executive agreement, entered into between the Philippines and Japan. The
said executive agreement states, among others, that all import transactions between Japan and the
Philippines should be invoiced in dollar. In this case, the said items imported by EST from Japan were not
invoiced in dollar.
EST questioned the validity of the said EO averring that the executive agreement that the EO was
implementing was never concurred upon by the Senate. The issue was elevated to the Court of Tax
Appeals and the latter ruled in favor of EST. The Commissioner appealed.
ISSUE: Whether or not the Executive Agreement is subject to the concurrence by the Senate.
HELD: No, Executive Agreements are not like treaties which are subject to the concurrence of at least 2/3
of the members of the Senate. Agreements concluded by the President which fall short of treaties are
commonly referred to as executive agreements and are no less common in our scheme of government
than are the more formal instruments — treaties and conventions. They sometimes take the form of
exchanges of notes and at other times that of more formal documents denominated ‘agreements’ or
‘protocols’.
The point where ordinary correspondence between this and other governments ends and agreements —
whether denominated executive agreements or exchanges of notes or otherwise — begin, may
sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large
variety of executive agreements as such, concluded from time to time. Hundreds of executive
agreements, other than those entered into under the trade- agreements act, have been negotiated with
foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under
the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant
precedent in our history, to refer to certain classes of agreements heretofore entered into by the
Executive without the approval of the Senate.
They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits,
the admission of civil aircraft, customs matters, and commercial relations generally, international claims,
postal matters, the registration of trade-marks and copyrights, etc. Some of them were concluded not by
specific congressional authorization but in conformity with policies declared in acts of Congress with
respect to the general subject matter, such as tariff acts; while still others, particularly those with respect
to the settlement of claims against foreign governments, were concluded independently of any legislation.
Bayan v Zamora (Public International Law)

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT v EXECUTIVE SECRETARY


RONALDO ZAMORA
G.R. No. 138570
October 10, 2000

FACTS:

The Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951, To
further strengthen their defense and security relationship. Under the treaty, the parties agreed to respond
to any external armed attack on their territory, armed forces, public vessels, and aircraft.

On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence of US military bases in the
Philippines.

On July 18, 1997 RP and US exchanged notes and discussed, among other things, 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.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA. On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines,the Instrument of Ratification, the
letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
Constitution.

Petitions for certiorari and prohibition, petitioners – as legislators, non-governmental organizations,


citizens and taxpayers – assail the constitutionality of the VFA and impute to herein respondents grave
abuse of discretion in ratifying the agreement.

Petitioner contends, 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.

ISSUES AND RULING:

1. Issue 1: Do the Petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?

NO. Petitioners Bayan Muna, etc. have no standing. A party bringing a suit challenging the
Constitutionality of a law must show not only that the law is invalid, but that he has sustained or is in
immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. Petitioners have failed to show that they are in any danger of
direct injury as a result of the VFA.

As taxpayers, they have failed to establish that the VFA involves the exercise by Congress of its taxing or
spending powers. A taxpayer's suit refers to a case where the act complained of directly involves the
illegal disbursement of public funds derived from taxation. Before he can invoke the power of judicial
review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has merely a general interest common to all
members of the public. Clearly, inasmuch as no public funds raised by taxation are involved in this case,
and in the absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do not possess the requisite locus standi to sue.
In the absence of a clear showing of any direct injury to their person or to the institution to which they
belong, they cannot sue. The Integrated Bar of the Philippines (IBP) is also stripped of standing in these
cases. The IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its
Board of Governors authorizing its National President to commence the present action.

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised, the Court may brush aside the procedural barrier and takes cognizance of the petitions.
2. Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art. XVIII of the Constitution?

Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves the presence of foreign military
troops in the Philippines.

The Constitution contains two provisions requiring the concurrence of the Senate on treaties or
international agreements.

Section 21, Article VII reads: “[n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.”

Section 25, Article XVIII, provides:”[a]fter the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

Section 21, Article VII deals with treaties or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the treaty
valid and binding to the Philippines. This provision lays down the general rule on treaties. All treaties,
regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence
of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that
applies to treaties which involve the presence of foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render
compliance with the constitutional requirements and to consider the agreement binding on the
Philippines. Sec 25 further requires that “foreign military bases, troops, or facilities” may be allowed in the
Philippines only by virtue of a treaty 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 recognized as such by
the other contracting state.

On the whole, the VFA is an agreement which defines the treatment of US troops visiting the Philippines.
It provides for the guidelines to govern such visits of military personnel, and further defines the rights of
the US and RP government in the matter of criminal jurisdiction, movement of vessel and aircraft, import
and export of equipment, materials and supplies. Undoubtedly, 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, however, the provisions of Section 21, Article VII will find applicability with regard to
determining the number of votes required to obtain the valid concurrence of the Senate.

It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure for the establishment of a military base. 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. When no distinction is made by law; the Court should not distinguish. We do not subscribe to
the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely
foreign troops and facilities, are involved in the VFA. The proscription covers “foreign military bases,
troops, or facilities.” Stated differently, this prohibition is not limited to the entry of troops and facilities
without any foreign bases being established. The clause does not refer to “foreign military bases, troops,
or facilities” collectively but treats them as separate and independent subjects, such that three different
situations are contemplated — a military treaty the subject of which could be either (a) foreign bases, (b)
foreign troops, or (c) foreign facilities — any of the three standing alone places it under the coverage of
Section 25, Article XVIII.

3. Issue 3: Was Sec 25 Art XVIII's requisites satisfied to make the VFA effective?

YES

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a
majority of the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in accordance with the Constitution, as there were at
least 16 Senators that concurred.

As to condition (c), the Court held that the phrase “recognized as a treaty” means that the other
contracting party accepts or acknowledges the agreement as a treaty. To require the US to submit the
VFA to the US Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the
phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the sense they have in common use.

The records reveal that the US Government, through Ambassador Hubbard, has stated that the US has
fully committed to living up to the terms of the VFA. For as long as the US accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with its treaty obligations, there is indeed compliance
with the mandate of the Constitution.

Worth stressing too, is that the ratification by the President of the VFA, and the concurrence of the
Senate, should be taken as a clear and unequivocal expression of our nation's consent to be bound by
said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied
thereunder. Ratification is generally held to be an executive act, undertaken by the head of the state,
through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic
legislation the process of ratification of a treaty. In our jurisdiction, the power to ratify is vested in the
President and not, as commonly believed, in the legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to the ratification.

With the ratification of the VFA it now becomes obligatory and incumbent on our part, under principles of
international law (pacta sunt servanda), to be bound by the terms of the agreement. Thus, no less than
Section 2, Article II declares that the Philippines adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.

BAYAN v. ZAMORA
G. R. No. 138570
October 10, 2000

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.

Bayan v. Zamora, G.R. No. 138570, October 10, 2000

DECISION
(En Banc)

BUENA, J.:

I. THE FACTS

The Republic of the Philippines and the United States of America entered into an agreement
called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine
government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total
membership of the Philippine Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides
for the guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine
governments in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution,
which provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other
contracting State.”

II. THE ISSUE

Was the VFA unconstitutional?

III. THE RULING

[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave
abuse of discretion, and sustained the constitutionality of the VFA.]

NO, the VFA is not unconstitutional.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless
the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast
by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the
Constitution . . . the provision in [in §25, Article XVIII] requiring ratification by a majority of the votes cast
in a national referendum being unnecessary since Congress has not required it.

xxx xxx xxx

This Court is of the firm view that the phrase “recognized as a treaty” means that the other
contracting party accepts or acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to submit the VFA to the United States
Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the sense they have in common use.

Moreover, 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. To be
sure, as long as the VFA possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.

xxx xxx xxx


The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the terms of the
VFA. For as long as the United States of America accepts or acknowledges the VFA as a treaty, and
binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with
the mandate of the Constitution.