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VFA is Constitutional
Lance Corporal Daniel Smith Case
The SC ruled that “the VFA was duly concurred in by the
Lance Corporal Daniel Smith, member of the US Armed Philippine Senate and has been recognized as a treaty by
Forces, was found guilty beyond reasonable doubt of the the United States,” and “the fact that (it) was not
crime of rape in the RTC of Makati. The court ordered submitted for advice and consent of the United States
Smith detained at the Makati City Jail until further does not detract from its status as a binding international
orders. agreement or treaty recognized by the said State.”
On December 19 and 22, 2006, Philippine Foreign Affairs Section 25, Article XVIII, 1987 Constitution provides that
Secretary Alberto Romulo and US Ambassador Kristie “foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly
1
The Department of Foreign Affairs of the Republic concurred in by the Senate and, when the Congress so
of the Philippines and the Embassy of the United requires, ratified by a majority of the votes cast by the
States of America agree that, in accordance with people in a national referendum held for that purpose, and
the Visiting Forces Agreement signed between the
recognized as a treaty by the other contracting State.”
two nations, upon transfer of Lance Corporal Daniel
J. Smith, United States Marine Corps, from the
Makati City Jail, he will be detained at the first floor, The issue, the Court said, is “whether or not the presence
Rowe (JUSMAG) Building, U.S. Embassy of the US Armed Forces in Philippine territory pursuant to
Compound in a room of approximately 10 x 12 the VFA is allowed ‘under a treaty duly concurred in by the
square feet. He will be guarded round the clock by Senate and recognized as a treaty by the other contracting
U.S. military personnel. The Philippine police and State.’” “It is,” the Court ruled. “The VFA, which is the
jail authorities, under the direct supervision of the
instrument agreed upon to provide for the joint RP-US
Philippine Department of Interior and Local
military exercises, is simply an implementing agreement to
Government (DILG) will have access to the place of
detention to ensure the United States is in the main RP-US Mutual Defense Treaty,” the Court held.
compliance with the terms of the VFA. visit fellester.blogspot.com The RP-US Mutual Defense
Treaty of August 30, 1951 was signed and duly ratified with its request, was granted custody of defendant Smith
the concurrence of both the Philippine Senate and the pending the proceedings.
United States Senate. United States Government faithfully complied with its
undertaking to bring defendant Smith to the trial court
every time his presence was... required.
Romulo-Kenney Agreements not in accord with the VFA
RTC of Makati, following the end of the trial, rendered its
itself
Decision, finding defendant Smith guilt
The Court however ruled that “the Romulo-Kenney As a result, the Makati court ordered Smith detained at
the Makati jail until further orders.
Agreements of December 19 and 22, 2006, which are
agreements on the detention of the accused in the United Smith was taken out of the Makati jail by a contingent of
States Embassy, are not in accord with the VFA itself Philippine law enforcement agents, purportedly acting under
because such detention is not “by Philippine authorities.” orders of the Department of the Interior and Local
Government, and brought to a facility for detention under
Article V, Section 10 of the VFA provides that “the
the control... of the United States government, provided
confinement or detention by Philippine authorities of the
for under new agreements between the Philippines and the
United States personnel shall be carried out in facilities United States, referred to as the Romulo-Kenney
agreed on by appropriate Philippines and United States Agreement... in accordance with the Visiting Forces
authorities.” (Suzette Nicolas y Sombilon Vs. Alberto Agreement signed between our two nations, Lance Corporal
Romulo, G.R. No. 175888, February 11, 2009) Daniel J. Smith, United States Marine Corps, be returned...
to U.S. military custody at the U.S. Embassy in Manila.
Petitioners contend that these undertakings violate The VFA provides that in cases of offenses committed by
another provision of the Constitution, namely, that the members of the US Armed Forces in the Philippines,
providing for the exclusive power of this Court to adopt the following rules apply:
rules of procedure for all courts in the Philippines (Art.
The custody of any United States personnel over whom the
VIII, Sec. 5[5]). They argue that to... allow the transfer of
Philippines is to exercise jurisdiction shall immediately
custody of an accused to a foreign power is to provide for a
reside with United States military authorities, if they so
different rule of procedure for that accused, which also
request, from the commission of the offense until
violates the equal protection clause of the Constitution
completion of all judicial proceedings.
(Art. III, Sec. 1.).
this Court finds no violation of the Constitution.
Ruling:
Nothing in the Constitution prohibits such agreements
This Court finds that it is, for two reasons.
recognizing immunity from jurisdiction or some aspects of
First, as held in Bayan v. Zamora,[5] the VFA was duly jurisdiction (such as custody), in relation to long-recognized
concurred in by the Philippine Senate and has been subjects of such immunity like Heads of State, diplomats
recognized as a treaty by the United States as attested and members of the armed forces contingents of... a
and certified by the duly authorized representative of the foreign State allowed to enter another State's territory.
United States... government. On the contrary, the Constitution states that the
Philippines adopts the generally accepted principles of
The fact that the VFA was not submitted for advice and
international law as part of the law of the land.
consent of the United States Senate does not detract
from its status as a binding international agreement or Applying, however, the provisions of VFA, the Court finds
treaty recognized by the said State. For this is a matter of that there is a different treatment when it comes to
internal United States law. detention as against custody. The moment the accused has
to be detained, e.g., after conviction, the rule that governs
The second reason has to do with the relation between the
is the following provision of the
VFA and the RP-US Mutual Defense Treaty of August 30,
1951. This earlier agreement was signed and duly ratified VFA:
with the concurrence of both the Philippine Senate and the
The confinement or detention by Philippine authorities of
United States Senate.
United States personnel shall be carried out in facilities
Clearly, therefore, joint RP-US military exercises for the agreed on by appropriate Philippines and United States
purpose of developing the capability to resist an armed authorities. United States personnel serving sentences in
attack fall squarely under the provisions of the RP-US the Philippines shall have the right to... visits and material
Mutual Defense Treaty. The VFA, which is the instrument assistance.
agreed upon to provide for the joint RP-US military...
It is clear that the parties to the VFA recognized the
exercises, is simply an implementing agreement to the main
difference between custody during the trial and detention
RP-US Military Defense Treaty.
after conviction, because they provided for a specific
The Preamble of the VFA states arrangement to cover detention.
Reaffirming their obligations under the Mutual Defense not only that the detention shall... be carried out in
Treaty of August 30, 1951; facilities agreed on by authorities of both parties, but also
that the detention shall be "by Philippine authorities."
Accordingly, as an implementing agreement of the RP-US
Mutual Defense Treaty, it was not necessary to submit the Therefore, the Romulo-Kenney Agreements of December 19
VFA to the US Senate for advice and consent, but merely and 22, 2006, which are agreements on the detention of
to the US Congress under the Case-Zablocki Act within 60 the accused in the United
days of its ratification. It is for this reason that... the US
States Embassy, are not in accord with the VFA itself
has certified that it recognizes the VFA as a binding
because such detention is not "by Philippine authorities."
international agreement, i.e., a treaty, and this substantially
complies with the requirements of Art. XVIII, Sec. 25 of Next, the Court addresses the recent decision of the
our Constitution. United States Supreme Court in Medellin v. Texas ( 552 US
___ No. 06-984, March 25, 2008), which held that treaties
The provision of Art. XVIII, Sec. 25 of the Constitution, is
entered into by the United States are not automatically
complied with by virtue of the fact that the presence of
part of their domestic law unless these... treaties are self-
executing or there is an implementing legislation to make encountered around the world, the laws (including rules of
them enforceable. procedure) of one State do not extend or apply
Mutual Defense Treaty. It was not the intention of the framers of the 1987
Constitution, in adopting Article XVIII, Sec. 25, to require
Secondly, the VFA is covered by implementing legislation, the other contracting State to convert their system to
namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch achieve alignment and parity with ours. It was simply
as it is the very purpose and intent of the US Congress required that the treaty be recognized as a treaty by the...
that executive agreements registered under this Act other contracting State.
within 60 days from their ratification be... immediately
implemented. as held by the US Supreme Court in Weinberger v.
Rossi,[13] an executive agreement is a "treaty" within the
VFA differs from the Vienna Convention on Consular meaning of that word in international law and constitutes
Relations and the Avena decision of the International Court enforceable domestic law vis-à-vis the United States. Thus,
of Justice (ICJ), subject matter of the Medellin decision. the
The Convention and the ICJ decision are not self-executing
and are not... registrable under the Case-Zablocki Act, and US Supreme Court in Weinberger enforced the provisions
thus lack legislative implementing authority. of the executive agreement granting preferential
employment to Filipinos in the US Bases here.
inally, the RP-US Mutual Defense Treaty was advised and
consented to by the US Senate Accordingly, there are three types of treaties in the
American system:
Principles:
Art. II, Sec. 2 treaties - These are advised and consented
The rule in international law is that a foreign armed forces to by the US Senate in accordance with Art. II, Sec. 2 of
allowed to enter one's territory is immune from local the US Constitution.
jurisdiction, except to the extent agreed upon. The Status
of Forces Agreements involving foreign military units Executive-Congressional Agreements: These are joint
around the world vary in terms and conditions,... according agreements of the President and Congress and need not be
to the situation of the parties involved, and reflect their submitted to the Senate.
bargaining power. But the principle remains, i.e., the
Sole Executive Agreements. - These are agreements
receiving State can exercise jurisdiction over the forces of
entered into by the President. They are to be submitted to
the sending State only to the extent agreed upon by the
Congress within sixty (60) days of ratification under the
parties.
provisions of the Case-Zablocki Act, after which they are
As a result, the situation involved is not one in which the recognized by the Congress and may be... implemented.
power of this Court to adopt rules of procedure is curtailed
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or violated, but rather one in which, as is normally
Lim v. Executive Secretary, GR. No. 151445, on January 2002. The Balikatan 02-1
April 11,2002 exercises involves the simulation of
joint military maneuvers pursuant to the
Mutual Defense Treaty, a bilateral
RULING : Held:
Petition is dismissed. The VFA itself permits US personnel The Supreme Court rule in the negative.
to engage on an impermanent basis, in “activities”, the
exact meaning of which is left undefined. The sole The President, being the head of state, is regarded as the
encumbrance placed on its definition is couched in the sole organ and authority in external relations and is the
negative, in that the US personnel “must abstain from any country’s sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the would be a failure of consideration for the 1961
country’s mouthpiece with respect to international affairs. agreement.
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 Issue. In order that a change of circumstances may
relations. In the realm of treaty-making, the President has give rise to a ground for invoking the termination of a
the sole authority to negotiate with other states. treaty, is it necessary that it has resulted in a radical
transformation of the extent of the obligation still to
It should be emphasized that under the Constitution, the be performed?
power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, Held. Yes. In order that a change of circumstances
however, is limited only to giving or withholding its consent, may give rise to the premise calling for the
or concurrence, to the ratification. Hence, it is within the termination of a treaty, it is necessary that it has
authority of the President to refuse to submit a treaty to resulted in a radical transformation of the extent of
the Senate or, having secured its consent for its
the obligations still to be performed.
ratification, refuse to ratify it.
The change of circumstances alleged by Iceland (D)
XXXXXXXXXXXXXXXXXXXXXX cannot be said to have transformed radically the
extent of the jurisdictional obligation that was
UK versus Iceland ICJ Reports 1971
imposed in the 1961 Exchange of Notes.
Citation. I.C.J., 1973 I.C.J. 3 Discussion. Recourse to the I.C.J. in the event of a
dispute was the original agreement between the
parties. The economy of Iceland (D) is dependent on
Brief Fact Summary. Because some circumstances
fishing. The merit of Iceland (D) argument was not
changed, Iceland (D) claimed that a fishing treaty it
reached by the Court in this case, however, but
had with the United Kingdom (P) was no longer
applicable. rather dealt with the jurisdictional issues.
XXXXXXX
Synopsis of Rule of Law. In order that a change of
circumstances may give rise to the premise calling for
the termination of a treaty, it is necessary that it
has resulted in a radical transformation of the On 14 April and 5 June 1972, respectively, the
extent of the obligations still to be performed. United Kingdom and the Federal Republic of
Germany instituted proceedings against Iceland
Facts. Iceland’s (D) claim to a 12-mile fisheries limit
concerning a dispute over the proposed
was recognized by the United Kingdom (P) in 1961 in
return for Iceland’s (D) agreement that any dispute extension by Iceland, as from 1 September
concerning Icelandic fisheries jurisdiction beyond the 1972, of the limits of its exclusive fisheries
12-mile limit be referred to the International Court jurisdiction from a distance of 12 to a distance
of Justice. An application was filed before the I.C.J.
of 50 nautical miles. Iceland declared that the
when Iceland (D) proposed to extend its exclusive
fisheries jurisdiction from 12 to 50 miles around its Court lacked jurisdiction, and declined to be
shores in 1972. By postulating that changes in represented in the proceedings or file pleadings.
circumstances since the 12-mile limit was now At the request of the United Kingdom and the
generally recognized was the ground upon which
Federal Republic, the Court in 1972 indicated,
Iceland (D) stood to argue that the agreement was no
longer valid. Iceland (D) also asserted that there and in 1973 confirmed, provisional measures to
the effect that Iceland should refrain from
implementing, with respect to their vessels, the
new regulations regarding the extension of the
zone of its exclusive fishing rights, and that the
annual catch of those vessels in the disputed
area should be limited to certain maxima. In
Judgments delivered on 2 February 1973, the
Court found that it possessed jurisdiction ; and
in Judgments on the merits of 25 July 1974, it
found that the Icelandic regulations.
constituting a unilateral extension of exclusive
fishing rights to a limit of 50 nautical miles were
not opposable to either the United Kingdom or
the Federal Republic, that Iceland was not
entitled unilaterally to exclude their fishing
vessels from the disputed area, and that the
Parties were under mutual obligations to
undertake negotiations in good faith for the
equitable solution of their differences.
Facts