AL K S D F HI L S D HO L S D HO L S D HS D H

V AL I D I TY RP-US N O N - S UR RE N D E R A G R E E M E N T : B AY AN M U N A V S . R O MU L A
OF
(GR 159618, 1 F E B R UA RY 2011)
Facts: Petitioners challenge the validity of the RP-US Non-surrender Agreement in light of
generally-accepted principles of law. The said Agreement, signed by respondents, prohibits
the Philippines from surrendering or extraditing an American person charged of a crime to
any tribunal or third-country unless it was established by the UN. Petitioners challenge the
Agreement on the grounds of it undermining the Rome Statute and Philippine sovereignty.

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.

Issue: Is the RP-US Non-surrender Agreement in violation of the Rome Statute and
Philippine Sovereignty?

Ruling: No. Art. 1 of the Rome Statute expressly says that the ICC’s jurisdiction will be
complementary to the criminal jurisdiction of the country, which has original jurisdiction.
Art. 98 of the Rome Statute also says that the ICC must first obtain the cooperation of the
state before it can demand the surrender of a criminal person. In light of this, the
Agreement is not in violation of the Statute. Sovereignty is not undermined either, because
Sec. 1 of the Rome Statute provides the RP the option to try criminals in its own jurisdiction
or defer them to the ICC.
VINUYA VS. EXECUTIVE SECRETARY

FACTS

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC for
the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the WWII.
They claim that they were “comfort women” at that time and have greatly suffered because of that. In 1998, they
have approached the Executive Department through the DOJ, DFA, and OSG and requested assistance in filing a
claim against the Japanese officials and military officers who ordered the establishment of the “comfort women”
stations in the Philippines. However, the officials declined on that ground that the individual claims had already
been satisfied by Japan’s compliance with the San Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956 between Japan and the Philippines. The petitioners argue that the general waiver of claims
made by the Philippine government in the Treaty of Peace with Japan is void because the comfort women system
constituted a crime against humanity, sexual slavery, and torture. The same was prohibited under the jus cogens
norms from which no derogation is possible. Thus, such waiver was a breach against the government’s obligation
not to afford impunity for crimes against humanity. In addition, they claim that the Philippine government’s
acceptance of the apologies made by Japan as well as funds for the AWF were contrary to international law.

ISSUES

Was the refusal of the Executive Department to espouse petitioners’ claims against Japan valid?

RULING

Yes, it was valid. It has the exclusive prerogative for such determination. So much so, the Philippines is not under
any international obligation to espouse petitioner’s claim. Given the extraordinary length of time that has lapsed
between the treaty’s conclusion, the Executive Department had the ample time to assess the foreign policy
considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and
those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are
appropriate or necessary.

Under international law, the only means available for individuals to bring a claim within the international legal
system has been when the individual is able to persuade a government to bring a claim on the individual’s behalf.
When this happens, in the eye of the international tribunal, the State is the sole claimant.

Therefore, the State is the sole judge to decide whether its protection in favor of those petitioners will be granted,
to what extent it is granted, and when will it cease. It is a discretionary power and the exercise of which may be
determined by consideration of a political or other nature.
Moreover, in the invocation of jus cogens norms and erga omnes obligation of the Philippines, the petitioners
failed to show that the crimes committed by the Japanese army violated jis cogens prohibitions at the time the
Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes in an erga omnes
obligation or has attained the status of jus cogens.

DISPOSITION

Petition is dismissed.

Jus cogens (from Latin: compelling law; from English: peremptory norm) refers to
certain fundamental, overriding principles of international law.
 P HARMACEUTICAL AND H EALTH C ARE
A SSOCIATION OF THE P HILIPPINES VS . D UQUE
Pharmaceutical and Health Care Association of the Philippines vs. Duque

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-
respondent since respondents issued the questioned RIRR in their capacity as officials of said executive
agency.1Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom Constitution. One of
the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health
Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition
and health claims are not permitted for breastmilk substitutes.In 1990, the Philippines ratified the
International Convention on the Rights of the Child. Article 24 of said instrument provides that State
Parties should take appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are informed of the advantages of breastfeeding. On
May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

Issue: . Whether Administrative Order or the Revised Implementing Rules and Regulations (RIRR) issued
by the Department of Health (DOH) is not constitutional;

Held: YES

under Article 23, recommendations of the WHA do not come into force for members,in the same way that
conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of
the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with respect
to any matter within the competence of the Organization
for an international rule to be considered as customary law, it must be established that such rule is being
followed by states because they consider it obligatory to comply with such rules

Under the 1987 Constitution, international law can become part of the sphere of domestic law either

By transformation or incorporation. The transformation method requires that an international law be

transformed into a domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic
law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can
be implemented by executive agencies without the need of a law enacted by the legislature

SECRETARY OF JUSTICE v. LANTION

322 SCRA 160
FACTS:
The Department of Justice received from the Department of Foreign Affairs a request from the
United States for the extradition of Mark Jimenez to the United States pursuant to PD No. 1609
prescribing the procedure for extradition of persons who have committed a crime in a foreign
country. Jimenez requested for copies of the request and that he be given ample time to comment on
the said request. The petitioners denied the request pursuant to the RP-US Extradition Treaty.

ISSUE:
Whether or not treaty stipulations must take precedence over an individual’s due process rights

HELD:
The human rights of person and the rights of the accused guaranteed in the Constitution should take
precedence over treaty rights claimed by a contracting party, the doctrine of incorporation is applied
whenever municipal tribunals are confronted with a situation where there is a conflict between a rule
of the international law and the constitution. Efforts must first be made in order to harmonize the
provisions so as to give effect to both but if the conflict is irreconcilable, the municipal law must be
upheld. The fact that international law has been made part of the law of the land does not pertain to
or imply the primacy of international law over municipal law in the municipal sphere. In states where
the constitution is the highest law of the land, both statutes and treaties may be invalidated if they are
in conflict with the constitution.
2014 CASE DIGEST: ARIGO V. SWIFT

FACTS:

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December
2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel “to enter and
exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of
routine ship replenishment, maintenance, and crew liberty.” On January 6, 2013, the ship left Sasebo,
Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran
aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of
Palawan. No one was injured in the incident, and there have been no reports of leaking fuel or oil.

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect the provinces
of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte,
Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and healthful
ecology.

Issue: Whether or not the waiver of immunity from suit under VFA applies in this case.

Third issue: NO.

The waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to
special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be
inferred from Section 17, Rule 7 of the Rules that a criminal case against a person charged with a violation
of an environmental law is to be filed separately.

The Court considered a view that a ruling on the application or non-application of criminal
jurisdiction provisions of the VFA to US personnel who may be found responsible for the grounding of the
USS Guardian, would be premature and beyond the province of a petition for a writ of Kalikasan.

The Court also found unnecessary at this point to determine whether such waiver of State
immunity is indeed absolute. In the same vein, we cannot grant damages which have resulted from the
violation of environmental laws. The Rules allows the recovery of damages, including the collection of
administrative fines under R.A. No. 10067, in a separate civil suit or that deemed instituted with the
criminal action charging the same violation of an environmental law.
 UNITED STATES OF AMERICA VS. GUINTO
182 SCRA 644

FACTS: These cases have been consolidated because they all involve the doctrine of state
immunity. In GR No. 76607, The private respondents are suing several officers of the US Air Force in
Clark Air Base in connection with the bidding conducted by them for contracts for barber services in
the said base which was won by a certain Dizon. The respondents wanted to cancel the award to the
bid winner because they claimed that Dizon had included in his bid an area not included in the
invitation to bid, and subsequently, to conduct a rebidding.

In GR No. 79470, Fabian Genove filed a complaint for damages against petitioners Lamachia,
Belsa, Cartalla and Orascion for his dismissal as cook in the US Air Force Recreation Center at Camp
John Hay Air Station inBaguioCity. It had been ascertained after investigation, from the testimony of
Belsa, Cartalla and Orascion, that Genove had poured urine into the soup stock used in cooking the
vegetables served to the club customers. Lamachia, as club manager, suspended him and thereafter
referred the case to a board of arbitrators conformably to the collective bargaining agreement
between the center and its employees. The board unanimously found him guilty and recommended his
dismissal. Genove’s reaction was to file his complaint against the individual petitioners.

In GR No. 80018, Luis Bautista, who was employed as a barracks boy in Cano O’ Donnell, an
extension of Clark Air Bas, was arrested following a buy-bust operation conducted by the individual
petitioners who are officers of the US Air Force and special agents of the Air Force Office of Special
Investigators. On the basis of the sworn statements made by them, an information for violation of
R.A. 6425, otherwise known as the Dangerous Drugs Act, was filed against Bautista in the RTC of
Tarlac. Said officers testified against him at his trial. Bautista was dismissed from his employment. He
then filed a complaint against the individual petitioners claiming that it was because of their acts that
he was removed.
In GR No. 80258, a complaint for damages was filed by the private respondents against the
herein petitioners (except theUS), for injuries sustained by the plaintiffs as a result of the acts of the
defendants. There is a conflict of factual allegations here. According to the plaintiffs, the defendants
beat them up, handcuffed them and unleashed dogs on them which bit them in several parts of their
bodies and caused extensive injuries to them. The defendants deny this and claim that plaintiffs were
arrested for theft and were bitten by the dogs because they were struggling and resisting arrest. In a
motion to dismiss the complaint, theUS and the individually named defendants argued that the suit
was in effect a suit against theUS, which had not given its consent to be sued.

ISSUE: Whether the defendants were also immune from suit under the RP-US Bases Treaty for acts
done by them in the performance of their official duties.

HELD: The rule that a State may not be sued without its consent is one of the generally accepted
principles of international law that were have adopted as part of the law of our land. Even without
such affirmation, we would still be bound by the generally accepted principles of international law
under the doctrine of incorporation. Under this doctrine, as accepted by the majority of the states,
such principles are deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. All states are sovereign equals and cannot
assert jurisdiction over one another.
While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the states for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same, the suit must be regarded as against the state
although it has not been formally impleaded.
When the government enters into a contract, it is deemed to have descended to the level of
the other contracting party and divested of its sovereign immunity from suit with its implied consent.
In the case oUS, the customary law of international law on state immunity is expressed with more
specificity in the RP-US Bases Treaty. There is no question that theUS, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietory or
private capacity. It is only when the contract involves its sovereign or governmental capacity that no
such waiver may be implied.
It is clear from a study of the records of GR No. 80018 that the petitioners therein were acting
in the exercise of their official functions when they conducted the buy-bust operations against the
complainant and thereafter testified against him at his trial. It follows that for discharging their duties
as agents of theUS, they cannot be directly impleaded for acts imputable to their principal, which has
not given its consent to be sued.
As for GR No. 80018, the record is too meager to indicate what really happened. The needed
inquiry first be made by the lower court so it may assess and resolve the conflicting claims of the
parties on the basis of evidence that has yet to be presented at the trial.
Ruling

1) US VS GUINTO (GR No 76607)

The court finds the barbershops subject to the concessions granted by the US government to
be commercial enterprises operated by private persons. The petitioners cannot plead any immunity
from the complaint, the contract in question being decidedly commercial. Thus, the petition is
DISMISSED and the lower court directed to proceed with the hearing and decision of the case.

2) US VS RODRIGO (GR No 79470)

The restaurant services offered at the John Hay Station operated for profit as a commercial
and not a government activity. The petitioners cannot invoke the doctrine of self immunity to justify
the dismissal of the damage suit filed by Genove. Not even the US government can claim such
immunity because by entering into the employment contract with Geneove in the discharge of its
proprietary functions, it impliedly divested itself of its sovereign immunity from suit.

Still, the court holds that the complaint against petitioners in the lower court be dismissed.
There was nothing arbitrary about the proceedings in the dismissal of Genove, the petitioner acted
quite properly in terminating the private respondent’s employment for his unbelievably nauseating act
of polluting the soup stock with urine.

3) US VS CEBALLOS (GR No 80018)

It was clear that the individually-named petitioners were acting in the exercise of their official
functions when they conducted the buy-bust operation and thereafter testified against the
complainant. For discharging their duties as agents of the United States, thay cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be sued. The
conclusion of the trial court that the answer filed by the special counsel of Clark Air Base was a
submission of the US government to its jurisdiction is rejected. Express waiver cannot be made by a
mere counsel of the government but must be effected through a duly-enacted statute. Neither does it
come under the implied form of consent. Thus, the petition is granted and the civil case filed in the
lower court dismissed.

4) US VS ALARCON VERGARA (GR No 80258)

The contradictory factual allegations in this case need a closer study of what actually
happened. The record were too meager to indicate that the defendants were really discharging their
official duties or had actually exceeded their authority when the incident occurred. Only after the
lower court shall have determined in what capacity the petitioners were acting will the court
determine, if still necessary, if the doctrine of state immunity is applicable.
 UNITED STATES OF AMERICA VS. GUINTO
182 SCRA 644

FACTS: These cases have been consolidated because they all involve the doctrine of state
immunity. In GR No. 76607, The private respondents are suing several officers of the US Air Force in
Clark Air Base in connection with the bidding conducted by them for contracts for barber services in
the said base which was won by a certain Dizon. The respondents wanted to cancel the award to the
bid winner because they claimed that Dizon had included in his bid an area not included in the
invitation to bid, and subsequently, to conduct a rebidding.

In GR No. 79470, Fabian Genove filed a complaint for damages against petitioners Lamachia,
Belsa, Cartalla and Orascion for his dismissal as cook in the US Air Force Recreation Center at Camp
John Hay Air Station inBaguioCity. It had been ascertained after investigation, from the testimony of
Belsa, Cartalla and Orascion, that Genove had poured urine into the soup stock used in cooking the
vegetables served to the club customers. Lamachia, as club manager, suspended him and thereafter
referred the case to a board of arbitrators conformably to the collective bargaining agreement
between the center and its employees. The board unanimously found him guilty and recommended his
dismissal. Genove’s reaction was to file his complaint against the individual petitioners.

In GR No. 80018, Luis Bautista, who was employed as a barracks boy in Cano O’ Donnell, an
extension of Clark Air Bas, was arrested following a buy-bust operation conducted by the individual
petitioners who are officers of the US Air Force and special agents of the Air Force Office of Special
Investigators. On the basis of the sworn statements made by them, an information for violation of
R.A. 6425, otherwise known as the Dangerous Drugs Act, was filed against Bautista in the RTC of
Tarlac. Said officers testified against him at his trial. Bautista was dismissed from his employment. He
then filed a complaint against the individual petitioners claiming that it was because of their acts that
he was removed.
In GR No. 80258, a complaint for damages was filed by the private respondents against the
herein petitioners (except theUS), for injuries sustained by the plaintiffs as a result of the acts of the
defendants. There is a conflict of factual allegations here. According to the plaintiffs, the defendants
beat them up, handcuffed them and unleashed dogs on them which bit them in several parts of their
bodies and caused extensive injuries to them. The defendants deny this and claim that plaintiffs were
arrested for theft and were bitten by the dogs because they were struggling and resisting arrest. In a
motion to dismiss the complaint, theUS and the individually named defendants argued that the suit
was in effect a suit against theUS, which had not given its consent to be sued.

ISSUE: Whether the defendants were also immune from suit under the RP-US Bases Treaty for acts
done by them in the performance of their official duties.

HELD: The rule that a State may not be sued without its consent is one of the generally accepted
principles of international law that were have adopted as part of the law of our land. Even without
such affirmation, we would still be bound by the generally accepted principles of international law
under the doctrine of incorporation. Under this doctrine, as accepted by the majority of the states,
such principles are deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. All states are sovereign equals and cannot
assert jurisdiction over one another.
While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the states for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same, the suit must be regarded as against the state
although it has not been formally impleaded.
When the government enters into a contract, it is deemed to have descended to the level of
the other contracting party and divested of its sovereign immunity from suit with its implied consent.
In the case oUS, the customary law of international law on state immunity is expressed with more
specificity in the RP-US Bases Treaty. There is no question that theUS, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietory or
private capacity. It is only when the contract involves its sovereign or governmental capacity that no
such waiver may be implied.
It is clear from a study of the records of GR No. 80018 that the petitioners therein were acting
in the exercise of their official functions when they conducted the buy-bust operations against the
complainant and thereafter testified against him at his trial. It follows that for discharging their duties
as agents of theUS, they cannot be directly impleaded for acts imputable to their principal, which has
not given its consent to be sued.
As for GR No. 80018, the record is too meager to indicate what really happened. The needed
inquiry first be made by the lower court so it may assess and resolve the conflicting claims of the
parties on the basis of evidence that has yet to be presented at the trial.
Ruling

1) US VS GUINTO (GR No 76607)

The court finds the barbershops subject to the concessions granted by the US government to
be commercial enterprises operated by private persons. The petitioners cannot plead any immunity
from the complaint, the contract in question being decidedly commercial. Thus, the petition is
DISMISSED and the lower court directed to proceed with the hearing and decision of the case.

2) US VS RODRIGO (GR No 79470)

The restaurant services offered at the John Hay Station operated for profit as a commercial
and not a government activity. The petitioners cannot invoke the doctrine of self immunity to justify
the dismissal of the damage suit filed by Genove. Not even the US government can claim such
immunity because by entering into the employment contract with Geneove in the discharge of its
proprietary functions, it impliedly divested itself of its sovereign immunity from suit.

Still, the court holds that the complaint against petitioners in the lower court be dismissed.
There was nothing arbitrary about the proceedings in the dismissal of Genove, the petitioner acted
quite properly in terminating the private respondent’s employment for his unbelievably nauseating act
of polluting the soup stock with urine.

3) US VS CEBALLOS (GR No 80018)

It was clear that the individually-named petitioners were acting in the exercise of their official
functions when they conducted the buy-bust operation and thereafter testified against the
complainant. For discharging their duties as agents of the United States, thay cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be sued. The
conclusion of the trial court that the answer filed by the special counsel of Clark Air Base was a
submission of the US government to its jurisdiction is rejected. Express waiver cannot be made by a
mere counsel of the government but must be effected through a duly-enacted statute. Neither does it
come under the implied form of consent. Thus, the petition is granted and the civil case filed in the
lower court dismissed.

4) US VS ALARCON VERGARA (GR No 80258)

The contradictory factual allegations in this case need a closer study of what actually
happened. The record were too meager to indicate that the defendants were really discharging their
official duties or had actually exceeded their authority when the incident occurred. Only after the
lower court shall have determined in what capacity the petitioners were acting will the court
determine, if still necessary, if the doctrine of state immunity is applicable.

NORMA A. DEL SOCORRO, FOR AND IN BEHALF OF HER MINOR CHILD

RODERIGO NORJO VAN WILSEM v. ERNST JOHAN BRINKMAN VAN
WILSEM
G.R. No. 193707, December 10, 2014, THIRD DIVISION, (Peralta, J.)

Foreign law should not be applied when its application would work undeniable injustice to the
citizens or residents of the forum.

Norma A. Del Socorro and Ernst Van Wilsem contracted marriage in Holland. They were blessed
with a son named Roderigo Norjo Van Wilsem. Unfortunately, their marriage bond ended by virtue of a
Divorce Decree issued by the appropriate Court of Holland. Thereafter, Norma and her son came home to
the Philippines. According to Norma, Ernst made a promise to provide monthly support to their son.
However, since the arrival of petitioner and her son in the Philippines, Ernst never gave support to
Roderigo. Norma filed a complaint against Ernst for violation of R.A. No. 9262 for the latter’s unjust
refusal to support his minor child with petitioner.

The trial court dismissed the complaint since the facts charged in the information do not
constitute an offense with respect to the accused, he being an alien.

ISSUE:
Does a foreign national have an obligation to support his minor child under Philippine law?

RULING:
Yes, since Ernst is a citizen of Holland or the Netherlands, we agree with the RTC that he is
subject to the laws of his country, not to Philippine law, as to whether he is obliged to give support to his
child, as well as the consequences of his failure to do so. This does not, however, mean that Ernst is not
obliged to support Norma’s son altogether. In international law, the party who wants to have a foreign law
applied to a dispute or case has the burden of proving the foreign law. In the present case, Ernst hastily
concludes that being a national of the Netherlands, he is governed by such laws on the matter of provision
of and capacity to support. While Ernst pleaded the laws of the Netherlands in advancing his position that
he is not obliged to support his son, he never proved the same. It is incumbent upon Ernst to plead and
prove that the national law of the Netherlands does not impose upon the parents the obligation to support
their child. Foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
take judicial notice of them. Like any other fact, they must be alleged and proved.

Moreover, foreign law should not be applied when its application would work undeniable injustice to the
citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or
judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws.
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support
his child nor penalize the non-compliance therewith, such obligation is still duly enforceable in the
Philippines because it would be of great injustice to the child to be denied of financial support when the
latter is entitled thereto.
 Executive Department: Foreign Affairs

G.R. No. 175888/176051/176222

Nicolas v. Romulo

Azcuna, J.

Summarized by Francis Eldon Mabutin

These are petitions for certiorari, etc. as special civil actions and/or for review of the
Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et
al., in CA-G.R. SP No. 97212, dated January 2, 2007.

IMPORTANT PEOPLE

Lance Corporal Daniel Smith, Suzette Nicolas, Alberto Romulo

FACTS

1. December 4, 2006: Lance Corporal Daniel Smith was convicted for the rape of
Suzette Nicolas and was sentenced reclusion perpetua.
2. December 29, 2006: Smith was taken out of the Makati jail by a contingent of
Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for
detention under the control of the United States government, provided for under
new agreements between the Philippines and the United States, referred to as the
Romulo-Kenney1 Agreement of December 19, 2006 .

1
The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the
United States of America agree that, in accordance with the Visiting Forces Agreement signed
between the 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, Rowe (JUSMAG) Building,
U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded
round the clock by U.S. military personnel. The Philippine police and jail authorities, under the
direct supervision of the Philippine Department of Interior and Local Government (DILG) will
 3. The matter was brought before the Court of Appeals but was dismissed for being
moot. Hence, the petition. Petitioners contend that the Philippines should have
custody of defendant L/CPL Smith because, first of all, the VFA is void and
unconstitutional.

ISSUE with HOLDING

1. Whether or not the presence of US Armed Forces in Philippine territory pursuant to

the VFA is allowed "under a treaty duly concurred in by the Senate xxx and
recognized as a treaty by the other contracting State.
• The fact that the VFA was not submitted for advice and consent of the United
States Senate does not detract from its status as a binding international
agreement or treaty recognized by the said State. For this is a matter of internal
United States law.
• Notice can be taken of the internationally known practice by the United
States of submitting to its Senate for advice and consent agreements that
are policymaking in nature, whereas those that carry out or further
implement these policymaking agreements are merely submitted to
Congress, under the provisions of the so-called Case–Zablocki Act, within
sixty days from ratification.
• As an implementing agreement of the RP-US Mutual Defense Treaty, it was not
necessary to submit the VFA to the US Senate for advice and consent, but
merely to the US Congress under the Case–Zablocki Act within 60 days of its
ratification.
• It is for this reason that the US has certified that it recognizes the VFA as a
binding international agreement, i.e., a treaty, and this substantially
complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.
• The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue
of the fact that the presence of the US Armed Forces through the VFA is a
presence "allowed under" the RP-US Mutual Defense Treaty. Since the RP-US
Mutual Defense Treaty itself has been ratified and concurred in by both the
Philippine Senate and the US Senate, there is no violation of the Constitutional
provision resulting from such presence.

have access to the place of detention to ensure the United States is in compliance with the
terms of the VFA.
• Petitioners contend that extradition of an accused personnel of the US military
violate another provision of the Constitution, namely, that providing for the
exclusive power of this Court to adopt rules of procedure for all courts in the
Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody
of an accused to a foreign power is to provide for a different rule of procedure
for that accused, which also violates the equal protection clause of the
Constitution (Art. III, Sec. 1.).
• The equal protection clause is not violated, because there is a substantial
basis for a different treatment of a member of a foreign military armed
forces allowed to enter our territory and all other accused.
• The rule in international law is that a foreign armed forces allowed to enter
one’s territory is immune from local jurisdiction, except to the extent
agreed upon. The Status of Forces Agreements involving foreign military
units around the world vary in terms and conditions, according to the
situation of the parties involved, and reflect their bargaining power. But
the principle remains, i.e., the receiving State can exercise jurisdiction
over the forces of the sending State only to the extent agreed upon by
the parties.
• Nothing in the Constitution prohibits such agreements recognizing
immunity from jurisdiction or some aspects of jurisdiction (such as
custody), in relation to long-recognized subjects of such immunity like
Heads of State, diplomats and members of the armed forces contingents of
a foreign State allowed to enter another State’s territory. On the contrary,
the Constitution states that the Philippines adopts the generally accepted
principles of international law as part of the law of the land. (Art. II, Sec.
2).
• VFA recognized the difference between custody during the trial and detention
after conviction, because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only that the
detention shall be carried out in facilities agreed on by authorities of both
parties, but also that the detention shall be "by Philippine authorities.”
• Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006,
which are agreements on the detention of the accused in the United States
Embassy, are not in accord with the VFA itself because such detention is
not "by Philippine authorities.”
 • The Court addresses the recent decision of the United States Supreme Court in
Medellin v. Texas, which held that treaties entered into by the United States are
not automatically part of their domestic law unless these treaties are self-
executing or there is an implementing legislation to make them enforceable.
• The VFA is a self-executing Agreement, as that term is defined in Medellin
itself, because the parties intend its provisions to be enforceable, precisely
because the Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty.
• The VFA is covered by implementing legislation, namely, the Case-
Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent
of the US Congress that executive agreements registered under this Act
within 60 days from their ratification be immediately implemented. The
parties to these present cases do not question the fact that the VFA has
been registered under the Case-Zablocki Act.
• The RP-US Mutual Defense Treaty was advised and consented to by the US
Senate on March 20, 1952
• It was not the intention of the framers of the 1987 Constitution, in adopting
Article XVIII, Sec. 25, to require the other contracting State to convert their
system to achieve alignment and parity with ours. It was simply required that
the treaty be recognized as a treaty by the other contracting State. With that, it
becomes for both parties a binding international obligation and the enforcement
of that obligation is left to the normal recourse and processes under international
law.

DISPOSITIVE PORTION

The petitions are PARTLY GRANTED, and the Court of Appeals’ Decision in CA-G.R. SP
No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA)
between the Republic of the Philippines and the United States, entered into on February
10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December
19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent
Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United
States representatives for the appropriate agreement on detention facilities under
Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status
quo shall be maintained until further orders by this Court.
DOCTRINE

No need for Parity

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII,
Sec. 25, to require the other contracting State to convert their system to achieve
alignment and parity with ours. It was simply required that the treaty be recognized as
a treaty by the other contracting State. With that, it becomes for both parties a binding
international obligation and the enforcement of that obligation is left to the normal
recourse and processes under international law.

Executive Agreement (US Definition)

These are agreements entered into by the President. They are to be submitted to
Congress within sixty (60) days of ratification under the provisions of the Case-Zablocki
Act, after which they are recognized by the Congress and may be implemented.

An executive agreement is a "treaty" within the meaning of that word in international

law and constitutes enforceable domestic law vis-à-vis the United States. (Weinberger v.
Rossi)

OTHER NOTES

Puno Dissent

• Medellin: While an international treaty may constitute an international commitment, it

is not binding domestic law unless Congress has enacted statutes implementing it or
unless the treaty itself is "self-executing." It further held that decisions of the ICJ are
not binding domestic law; and that, absent an act of Congress or Constitutional
authority, the U.S. President lacks the power to enforce international treaties or
decisions of the ICJ.
• The U.S. President’s authority to enter into treaties that are enforceable within its
domestic sphere was severely limited by Medellin. In Medellin, the United States
 posited the theory that the President’s constitutional role uniquely qualifies him
to resolve the sensitive foreign policy decisions that bear on compliance with an
ICJ decision. In said case, the U.S. President, through the issuance of the
Memorandum, sought to vindicate the United States interest in ensuring the
reciprocal observance of the Vienna Convention, protecting relations with foreign
governments, and demonstrating commitment to the role of international law.
Though these interests were compelling, the Supreme Court held that the
president’s authority to act, as with the exercise of any governmental power,
must stem from an act of Congress or from the Constitution itself.
• The non-self-executing character of the relevant treaties not only refutes the
notion that the ratifying parties vest the President with authority to unilaterally
make treaty obligations binding on domestic courts, but also prohibits him from
doing so. The responsibility to transform an international obligation arising from
a non-self-executing treaty into domestic law falls on Congress, not the Executive.
• Acknowledgement by the U.S. President that an agreement is a treaty, even
with the concurrence of the U.S. Senate, is not sufficient to make a treaty
enforceable in its domestic sphere, unless the words of the treaty itself clearly
express the intention to make the treaty self-executory, or unless there is
corresponding legislative enactment providing for its domestic enforceability.
• The VFA does not satisfy either of these requirements and cannot thus be
enforced within the U.S.
• The majority of the Court gave undue deference to the statement of the
former Ambassador of the United States to the Philippines, Thomas C.
Hubbard, that Senate advice and consent was not needed to consider a
treaty binding on the U.S., on the premise that the President alone had the
power to conclude the VFA, deriving from his responsibilities for the
conduct of foreign relations and his constitutional powers as the
Commander-in-Chief of the Armed Forces, to conclude that the U.S.
accepted or acknowledged the agreement as a treaty. The majority then
jumped to the conclusion that the U.S. recognized the VFA as a treaty, and
that the constitutional requirements had been satisfied.
• Medellin Implications:
• It must be clear from the text of the VFA itself that the VFA is self-
executory in order that it may be reciprocally enforced.
• The recognition of the President through the former U.S. Ambassador that
the VFA is a treaty is insufficient to make this international obligation
executory in the domestic sphere
 • Congressional act is necessary to transform the international obligations
brought about by the VFA.
• There is an asymmetry in the legal treatment of the VFA.
• The clear intention of the framers of the Constitution in imposing the
requirement that the agreement must be recognized by the other
state as a treaty. Recognition as a treaty by the other contracting
state does not merely concern the procedure by which it is
ratified, or whether or not it is concurred in by the Senate. The
decisive mark to show that the agreement is considered as a
treaty by the other contracting state is whether the agreement or
treaty has obligatory effects and may be used as a source of
rights enforceable in the domestic sphere of the other
contracting party.
• The RP government has already enforced the provisions of the VFA
and has transferred custody of Lance Corporal Daniel Smith to U.S.
authorities. The Philippine government has considered the VFA to be
fully enforceable within our jurisdiction; yet, the U.S. does not look at
the VFA as enforceable within its domestic jurisdiction. This
dichotomy is evidently proscribed by the Constitution, for such
dichotomy would render our sovereignty in tatters.

Carpio Dissent
• The clear intent of the phrase recognized as a treaty by the other contracting
State is to insure that the treaty has the same legal effect on the Philippines as
on the other contracting State. This requirement is unique to agreements
involving the presence of foreign troops in the Philippines, along with the
requirement, if Congress is so minded, to hold a national referendum for the
ratification of such a treaty.
• An equally binding treaty means exactly what it says - the treaty is enforceable
as domestic law in the Philippines and likewise enforceable as domestic law in
the other contracting State.
• Medellin acknowledges that even if the treaty is not enforceable under U.S.
domestic law, it may still give rise to an obligation under international law
on the part of the United States.
• The Philippines cannot take comfort that the VFA can still give rise to an
obligation under international law on the part of the United States, even as the
VFA does not constitute domestic law in the United States.
• Assuming that the United States will submit to the jurisdiction of the ICJ,
the futility of relying on the Security Council to enforce the ICJ decision is
apparent.
• In the chilling words of Medellin, the United States retained the
unqualified right to exercise its veto of any Security Council
 resolution. The only way to avoid this veto of the United States is to make
the treaty part of U.S. domestic law.
• With Medellin, the treaty must not only be ratified, but must also be ratified
as self-executory, or an implementing legislation must be adopted, before it
can repeal a prior inconsistent law.
• Executive agreements are not ratified by the U.S. Senate but merely
notified to the U.S. Congress under the Case-Zablocki Act, which does not
apply to treaties. Notification under the Case-Zablocki Act does not enact the
executive agreement into domestic law of the United States.
• The Case-Zablocki Act mandates the notification to the U.S. Congress of
executive agreements other than a treaty.
• The fact that the U.S. State Department notified the VFA to the U.S.
Congress under the Case-Zablocki Act, and the U.S. Congress has not
objected to the characterization of the VFA as an executive agreement, is
incontrovertible proof that the VFA is not a treaty but merely an executive
agreement as far as the United States Government is concerned. In short,
the United States does not recognize the VFA as a treaty.
• For the VFA to be constitutional under Section 25, Article XVIII of the Philippine
Constitution, the United States must first recognize the VFA as a treaty, and
then ratify the VFA to form part of its domestic law.
• In the words of Father Bernas, the United States must complete the
process by accepting [the VFA] as a treaty through ratification by [the U.S.]
Senate as the United States Constitution requires.
• Medellin has now added the further requirement that the U.S. Congress
must adopt an implementing legislation to the VFA, or the VFA must be
renegotiated to make it self-executory and ratified as such by the U.S.
Senate. Unless and until this is done, the VFA is not recognized as a treaty
by the United States, and thus it cannot be given effect in the Philippines.
• Under Medellin, the 1952 RP-US Mutual Defense Treaty (MDT) is not part of
the domestic law of the United States and the U.S. President has no power
to enforce the MDT under U.S. domestic law. Based on the Medellin
requirements for a treaty to be binding and enforceable under U.S. domestic law,
the MDT suffers the same fate as the Vienna Convention on Consular Relations.
• Both the MDT and the Convention were ratified by the U.S. Senate.
However, both the MDT and the Convention contain only the usual
ratification and entry into force provisions found in treaties.
• Both the MDT and the Convention do not contain any provision
making them self-executory once ratified by the U.S. Senate. The U.S.
Congress has also not adopted any implementing legislation for the MDT
or the Convention.
• The VFA fails to comply with Section 25, Article XVIII of the Philippine Constitution
requiring the United States to recognize as a treaty the VFA. The Court cannot allow
the implementation of the VFA by the Philippine Government unless and until the
United States recognizes the VFA as a treaty.
• This means that the VFA must be ratified by the U.S. Senate and made part of
U.S. domestic law in accordance with Medellin. Only when this process is
completed can this Court allow the implementation of the VFA.
• In the meantime, the accused Lance Corporal Daniel Smith of the U.S. Armed
Forces should be subject to the same Philippine laws governing an accused in
similar cases, without the application of the VFA or its subsidiary agreements.