BADGE: International Law

CAPTION: Bayan Muna v. Alberto Romulo, G.R. No. 159618, Feb. 1, 2011, J. VELASCO, JR

SYLLABUS: One State can agree to waive jurisdiction to subjects of another State due to the
recognition of the principle of extraterritorial immunity.—In the context of the Constitution, there
can be no serious objection to the Philippines agreeing to undertake the things set forth in the
Agreement. Surely, one State can agree to waive jurisdiction—to the extent agreed upon—to
subjects of another State due to the recognition of the principle of extraterritorial immunity.

FACTS: Registered party-list group- Bayan Muna, 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.

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.” Established by Rome Statute. The serious crimes adverted to
cover those considered grave under international law, such as genocide, crimes against humanity,
war crimes, and crimes of aggression.

Philippines on December 28, 2000, 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

Francis J. Ricciardone, Ambassador of the US sent a 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 the Philippines Via Exchange of Notes No. BFO-028-037
dated May 13, 2003 (E/N BFO-028-03, hereinafter). 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 the Agreement is aim is to protect what it refers to and
defines as “persons” of the Philippines and US from frivolous and harassment suits that might be
brought against them in international tribunals.

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 not in
compliance with universally recognized principles of international law.

Ruling: The Agreement is not against the Rome Statute. Far from going against each other, one
complements the other. Principle of complementarity on the creation of the ICC. According to
Art. 1 of the Statute, the jurisdiction of the ICC is to “be complementary to national criminal
jurisdictions [of the signatory states].” the Rome Statute expressly recognizes the primary
jurisdiction of states, like the Philippines, serious crimes within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory states are
unwilling or unable to prosecute. There is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is
only obliged to refuse from acts that would defeat the object and purpose of a treaty

The right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. We have entered 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 that the court never questioned of the validity.

FALLO: WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby
DISMISSED for lack of merit. No costs.

SO ORDERED.