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Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011
Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011
SUPREME COURT
Manila
EN BANC
DECISION
VELASCO, JR., J.:
The Case
This petition[1] for certiorari, mandamus and prohibition under Rule 65 assails
and seeks to nullify the Non-Surrender Agreement concluded by and between the
Republic of the Philippines (RP) and the United States of America (USA).
The Facts
Via Exchange of Notes No. BFO-028-03[7] 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.[9]
2. Persons of one Party present in the territory of the other shall not, absent
the express consent of the first Party,
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.[10]
For their part, respondents question petitioners standing to maintain a suit and
counter that the Agreement, being in the nature of an executive agreement, does not
require Senate concurrence for its efficacy. And for reasons detailed in their
comment, respondents assert the constitutionality of the Agreement.
The Issues
B. Whether after the signing and pending ratification of the Rome Statute
of the [ICC] the [RP] President and the [DFA] Secretary x x x are
obliged by the principle of good faith to refrain from doing all acts
which would substantially impair the value of the undertaking as
signed.
C. Whether the x x x Agreement constitutes an act which defeats the
object and purpose of the Rome Statute of the International Criminal
Court and contravenes the obligation of good faith inherent in the
signature of the President affixed on the Rome Statute of the
International Criminal Court, and if so whether the x x
x Agreementis void and unenforceable on this ground.
The foregoing issues may be summarized into two: first, whether or not
the Agreement was contracted validly, which resolves itself into the question of
whether or not respondents gravely abused their discretion in concluding it;
and second, whether or not the Agreement, which has not been submitted to the
Senate for concurrence, contravenes and undermines the Rome Statute and other
treaties. But because respondents expectedly raised it, we shall first tackle the issue
of petitioners legal standing.
The Courts Ruling
Petitioner, through its three party-list representatives, contends that the issue
of the validity or invalidity of the Agreement carries with it constitutional
significance and is of paramount importance that justifies its standing. Cited in this
regard is what is usually referred to as the emergency powers cases,[12] in which
ordinary citizens and taxpayers were accorded the personality to question the
constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a given
question.[13] Specifically, it is a partys personal and substantial interest in a case
where he has sustained or will sustain direct injury as a result[14] of the act being
challenged, and calls for more than just a generalized grievance.[15] The term interest
refers to material interest, as distinguished from one that is merely incidental.[16] The
rationale for requiring a party who challenges the validity of a law or international
agreement to allege such a personal stake in the outcome of the controversy is to
assure the concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional
questions.[17]
Moreover, bearing in mind what the Court said in Taada v. Angara, that it will
not shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or department
of the government,[25] we cannot but resolve head on the issues raised before
us. Indeed, where an action of any branch of government is seriously alleged to have
infringed the Constitution or is done with grave abuse of discretion, it becomes not
only the right but in fact the duty of the judiciary to settle it. As in this petition, issues
are precisely raised putting to the fore the propriety of the Agreement pending the
ratification of the Rome Statute.
As may be noted, almost half a century has elapsed since the Court rendered
its decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has
become more complex and the domain of international law wider, as to include such
subjects as human rights, the environment, and the sea. In fact, in the US alone, the
executive agreements executed by its President from 1980 to 2000 covered subjects
such as defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation, and nuclear safety, among
others.[43] Surely, the enumeration in Eastern Sea Trading cannot circumscribe the
option of each state on the matter of which the international agreement format would
be convenient to serve its best interest. As Francis Sayre said in his work referred to
earlier:
x x x 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-agreement act, have been
negotiated with foreign governments. x x x They cover such subjects as the
inspection of vessels, navigation dues, income tax on shipping profits, the
admission of civil air craft, custom matters and commercial relations generally,
international claims, postal matters, the registration of trademarks and copyrights,
etc. x x x
But over and above the foregoing considerations is the fact thatsave for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution[46]when
a treaty is required, the Constitution does not classify any subject, like that involving
political issues, to be in the form of, and ratified as, a treaty. What the Constitution
merely prescribes is that treaties need the concurrence of the Senate by a vote defined
therein to complete the ratification process.
Considering the above discussion, the Court need not belabor at length the
third main issue raised, referring to the validity and effectivity of
the Agreement without the concurrence by at least two-thirds of all the members of
the Senate. The Court has, in Eastern Sea Trading,[48] as reiterated
in Bayan,[49] given recognition to the obligatory effect of executive agreements
without the concurrence of the Senate:
x x x [T]he 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 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.
Petitioner would add that the President and the DFA Secretary, as
representatives of a signatory of the Rome Statute, are obliged by the imperatives of
good faith to refrain from performing acts that substantially devalue the purpose and
object of the Statute, as signed. Adding a nullifying ingredient to the Agreement,
according to petitioner, is the fact that it has an immoral purpose or is otherwise at
variance with a priorly executed treaty.
Article 1
The Court
Article 98
xxxx
2. The Court may not proceed with a request for surrender which would
require the requested State to act inconsistently with its obligations under
international agreements pursuant to which the consent of a sending State is
required to surrender a person of that State to the Court, unless the Court can
first obtain the cooperation of the sending State for the giving of consent for the
surrender.
Petitioner next argues that the RP has, through the Agreement, abdicated its
sovereignty by bargaining away the jurisdiction of the ICC to prosecute US
nationals, government officials/employees or military personnel who commit
serious crimes of international concerns in the Philippines. Formulating petitioners
argument a bit differently, the RP, by entering into the Agreement, does thereby
abdicate its sovereignty, abdication being done by its waiving or abandoning its right
to seek recourse through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance
and confirmance of the Philippines national criminal jurisdiction. National criminal
jurisdiction being primary, as explained above, it is always the responsibility and
within the prerogative of the RP either to prosecute criminal offenses equally
covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus,
the Philippines may decide to try persons of the US, as the term is understood in
the Agreement, under our national criminal justice system. Or it may opt not to
exercise its criminal jurisdiction over its erring citizens or over US persons
committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them. As to persons of the US whom the Philippines
refuses to prosecute, the country would, in effect, accord discretion to the US to
exercise either its national criminal jurisdiction over the person concerned or to give
its consent to the referral of the matter to the ICC for trial. In the same breath,
the US must extend the same privilege to the Philippines with respect to persons of
the RP committing high crimes within US territorial jurisdiction.
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 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 Philippinesof 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 countrys judiciary
to try offenses under its national criminal laws and dispense justice fairly and
judiciously.
The Court need not delve on and belabor the first portion of the above posture
of petitioner, the same having been discussed at length earlier on. As to the second
portion, We wish to state that petitioner virtually faults the President for performing,
through respondents, a task conferred the President by the Constitutionthe power to
enter into international agreements.
By constitutional fiat and by the nature of his or her office, the President, as
head of state and government, is the sole organ and authority in the external affairs
of the country.[65] The Constitution vests in the President the power to enter into
international agreements, subject, in appropriate cases, to the required concurrence
votes of the Senate.But as earlier indicated, executive agreements may be validly
entered into without such concurrence. As the President wields vast powers and
influence, her conduct in the external affairs of the nation is, as Bayan would put it,
executive altogether. The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.[66]
While the issue of ratification of the Rome Statute is not determinative of the
other issues raised herein, it may perhaps be pertinent to remind all and sundry that
about the time this petition was interposed, such issue of ratification was laid to rest
in Pimentel, Jr. v. Office of the Executive Secretary.[67] As the Court emphasized in
said case, the power to ratify a treaty, the Statute in that instance, rests with the
President, subject to the concurrence of the Senate, whose role relative to the
ratification of a treaty is limited merely to concurring in or withholding the
ratification. And concomitant with this treaty-making power of the President is his
or her prerogative to refuse to submit a treaty to the Senate; or having secured the
latters consent to the ratification of the treaty, refuse to ratify it.[68] This prerogative,
the Court hastened to add, is the Presidents alone and cannot be encroached upon
via a writ of mandamus. Barring intervening events, then, the Philippines remains to
be just a signatory to the Rome Statute. Under Art. 125[69] thereof, the final acts
required to complete the treaty process and, thus, bring it into force, insofar as
the Philippines is concerned, have yet to be done.
On December 11, 2009, then President Arroyo signed into law Republic Act
No. (RA) 9851, otherwise known as the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity. Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the
Constitution, where the Philippines adopts, as a national policy, the generally
accepted principles of international law as part of the law of the land, the Court
is further impressed to perceive the Rome Statute as declaratory of customary
international law. In other words, the Statute embodies principles of law which
constitute customary international law or custom and for which reason it assumes
the status of an enforceable domestic law in the context of the aforecited
constitutional provision. As a corollary, it is argued that any derogation from the
Rome Statute principles cannot be undertaken via a mere executive agreement,
which, as an exclusive act of the executive branch, can only implement, but cannot
amend or repeal, an existing law. The Agreement, so the argument goes, seeks to
frustrate the objects of the principles of law or alters customary rules embodied in
the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of
the nature of a municipal law that can amend or supersede another law, in this
instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of
enforceable domestic law under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851. For another, the view
does not clearly state what precise principles of law, if any,
the Agreement alters. And for a third, it does not demonstrate in the concrete how
the Agreement seeks to frustrate the objectives of the principles of law subsumed in
the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome
Statute as the former merely reinforces the primacy of the national jurisdiction of
the US and the Philippines in prosecuting criminal offenses committed by their
respective citizens and military personnel, among others. The jurisdiction of the ICC
pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory
states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against
international humanitarian law, genocide and other crimes against humanity; [70] (2)
provides penal sanctions and criminal liability for their commission;[71] and (3)
establishes special courts for the prosecution of these crimes and for the State to
exercise primary criminal jurisdiction.[72] Nowhere in RA 9851 is there a proviso
that goes against the tenor of the Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851
as requiring the Philippine State to surrender to the proper international tribunal
those persons accused of crimes sanctioned under said law if it does not exercise its
primary jurisdiction to prosecute such persons. This view is not entirely correct, for
the above quoted proviso clearly provides discretion to the Philippine State on
whether to surrender or not a person accused of the crimes under RA 9851. The
statutory proviso uses the word may. It is settled doctrine in statutory construction
that the word may denotes discretion, and cannot be construed as having mandatory
effect.[73] Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is simply
permissive on the part of the Philippine State.
In his dissent in the abovementioned case, Justice Carpio discussed the legal
implications of an executive agreement. He stated that an executive agreement has
the force and effect of law x x x [it] cannot amend or repeal prior laws.[78] Hence,
this argument finds no application in this case seeing as RA 9851 is a subsequent
law, not a prior one. Notably, this argument cannot be found in the ratio decidendi of
the case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable
to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty,
[a]n offense shall be an extraditable offense if it is punishable under the laws in
both Contracting Parties x x x,[79] and thereby concluding that while the
Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as
war crimes, genocide and other crimes against humanity, there is no similar
legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a
person cannot be tried in the federal courts for an international crime unless Congress
adopts a law defining and punishing the offense.
On the contrary, the US has already enacted legislation punishing the high
crimes mentioned earlier. In fact, as early as October 2006, the US enacted a law
criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United
States Code Annotated (USCA) provides for the criminal offense of war crimes
which is similar to the war crimes found in both the Rome Statute and RA 9851,
thus:
(a) Offense Whoever, whether inside or outside the United States, commits a war
crime, in any of the circumstances described in subsection (b), shall be fined
under this title or imprisoned for life or any term of years, or both, and if death
results to the victim, shall also be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are that the
person committing such war crime or the victim of such war crime is a member
of the Armed Forces of the United States or a national of the United States (as
defined in Section 101 of the Immigration and Nationality Act).
(c) Definition As used in this Section the term war crime means any conduct
(1) Defined as a grave breach in any of the international conventions signed
at Geneva 12 August 1949, or any protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of War on Land,
signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in
subsection [d]) when committed in the context of and in association with an
armed conflict not of an international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the
provisions of the Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May
1996 (Protocol II as amended on 3 May 1996), when the United States is a
party to such Protocol, willfully kills or causes serious injury to civilians.[80]
Arguing further, another view has been advanced that the current US laws do
not cover every crime listed within the jurisdiction of the ICC and that there is a gap
between the definitions of the different crimes under the US laws versus the Rome
Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas,
entitled On Trial: The US Military and the International Criminal Court, as its basis.
At the outset, it should be pointed out that the report used may not have any weight
or value under international law. Article 38 of the Statute of the International Court
of Justice (ICJ) lists the sources of international law, as follows: (1) international
conventions, whether general or particular, establishing rules expressly recognized
by the contesting states; (2) international custom, as evidence of a general practice
accepted as law; (3) the general principles of law recognized by civilized nations;
and (4) subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law. The report does not fall under any of the
foregoing enumerated sources. It cannot even be considered as the teachings of
highly qualified publicists. A highly qualified publicist is a scholar of public
international law and the term usually refers to legal scholars or academic
writers.[82] It has not been shown that the authors[83] of this report are highly qualified
publicists.
Assuming arguendo that the report has weight, still, the perceived gaps in the
definitions of the crimes are nonexistent. To highlight, the table below shows the
definitions of genocide and war crimes under the Rome Statute vis--vis the
definitions under US laws:
Evidently, the gaps pointed out as to the definition of the crimes are not present. In
fact, the report itself stated as much, to wit:
Few believed there were wide differences between the crimes under the
jurisdiction of the Court and crimes within the Uniform Code of Military Justice
that would expose US personnel to the Court. Since US military lawyers were
instrumental in drafting the elements of crimes outlined in the Rome Statute, they
ensured that most of the crimes were consistent with those outlined in the UCMJ
and gave strength to complementarity for the US. Small areas of potential gaps
between the UCMJ and the Rome Statute, military experts argued, could be
addressed through existing military laws.[87] x x x
The report went on further to say that [a]ccording to those involved, the
elements of crimes laid out in the Rome Statute have been part of US military
doctrine for decades.[88] Thus, the argument proffered cannot stand.
Thus, a person can be tried in the US for an international crime despite the
lack of domestic legislation. The cited ruling in U.S. v. Coolidge,[91] which in turn is
based on the holding in U.S. v. Hudson,[92] only applies to common law and not to
the law of nations or international law.[93] Indeed, the Court in U.S. v. Hudson only
considered the question, whether the Circuit Courts of the United States can exercise
a common law jurisdiction in criminal cases.[94] Stated otherwise, there is no
common law crime in the US but this is considerably different from international
law.
The US doubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute.[95] In fact,
years later, US courts would apply international law as a source of criminal liability
despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte
Quirin[96] the US Supreme Court noted that [f]rom the very beginning of its history
this Court has recognized and applied the law of war as including that part of the law
of nations which prescribes, for the conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals.[97] It went on further to explain that
Congress had not undertaken the task of codifying the specific offenses covered in
the law of war, thus:
It is no objection that Congress in providing for the trial of such
offenses has not itself undertaken to codify that branch of international law or
to mark its precise boundaries, or to enumerate or define by statute all the acts
which that law condemns. An Act of Congress punishing the crime of piracy as
defined by the law of nations is an appropriate exercise of its constitutional
authority, Art. I, s 8, cl. 10, to define and punish the offense since it has adopted by
reference the sufficiently precise definition of international law. x x x Similarly by
the reference in the 15th Article of War to offenders or offenses that x x x by the
law of war may be triable by such military commissions. Congress has incorporated
by reference, as within the jurisdiction of military commissions, all offenses which
are defined as such by the law of war x x x, and which may constitutionally be
included within that jurisdiction.[98] x x x (Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against humanity.
It has been held that genocide, war crimes and crimes against humanity have attained
the status of customary international law. Some even go so far as to state that these
crimes have attained the status of jus cogens.[99]
State practice refers to the continuous repetition of the same or similar kind
of acts or norms by States.[103] It is demonstrated upon the existence of the following
elements: (1) generality; (2) uniformity and consistency; and (3)
duration.[104] While, opinio juris, the psychological element, requires that the state
practice or norm be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it.[105]
The term jus cogens means the compelling law.[106] Corollary, a jus
cogens norm holds the highest hierarchical position among all other customary
norms and principles.[107] As a result, jus cogens norms are deemed peremptory and
non-derogable.[108] When applied to international crimes, jus cogens crimes have
been deemed so fundamental to the existence of a just international legal order that
states cannot derogate from them, even by agreement.[109]
These jus cogens crimes relate to the principle of universal jurisdiction, i.e.,
any state may exercise jurisdiction over an individual who commits certain heinous
and widely condemned offenses, even when no other recognized basis for
jurisdiction exists.[110] The rationale behind this principle is that the crime committed
is so egregious that it is considered to be committed against all members of the
international community[111] and thus granting every State jurisdiction over the
crime.[112]
Therefore, even with the current lack of domestic legislation on the part of the US,
it still has both the doctrine of incorporation and universal jurisdiction to try these
crimes.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application
of the concurring elements, thus:
xxxx
The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of the
practice of states.
xxxx
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x
xxxx
Further, the Rome Statute itself rejects the concept of universal jurisdiction
over the crimes enumerated therein as evidenced by it requiring State
consent.[118] Even further, the Rome Statute specifically and unequivocally requires
that: This Statute is subject to ratification, acceptance or approval by signatory
States.[119] These clearly negate the argument that such has already attained
customary status.
In light of the above consideration, the position or view that the challenged
RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be effective,
has to be rejected.
SO ORDERED.
RENATO C. CORONA
Chief Justice
No Part
ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice
[1]
Rollo, pp. 241-265.
[2]
He is now the DFA Secretary.
[3]
Rollo, pp. 74-145.
[4]
ROME STATUTE, Art. 1.
[5]
Id., Art. 5.
[6]
ROME STATUTE, Article 125.
[7]
Rollo, pp. 68-69.
[8]
Id. at 72, Paper on the RP-US Non-Surrender Agreement.
[9]
Id. at 70.
[10]
Id. at 175.
[11]
Id. at 25-27.
[12]
Philconsa v. Gimenez, No. L-23326, December 18, 1965, 15 SCRA 479; Iloilo Palay & Corn Planters Association,
No. L-24022, March 3, 1965, 13 SCRA 377; Araneta v. Dinglasan, 84 Phil. 368 (1949).
[13]
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
[14]
Jumamil v. Caf, G.R. No. 144570, September 21, 2005, 470 SCRA 475; citing Integrated Bar of the
Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81.
[15]
Id.
[16]
Id.
[17]
Farias v. Executive Secretary, G.R. Nos. 147387 & 152161, December 10, 2003, 417 SCRA 503;
citing Baker v. Carr, 369 U.S. 186 (1962). See also Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337
SCRA 733.
[18]
Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R. Nos. 155001, 155547 & 155661, May
5, 2003, 402 SCRA 612.
[19]
Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005, 472 SCRA 515; Agan, Jr., supra note
18; Del Mar v. Philippine Amusement and Gaming Corporation, G.R. No. 138298, November 29, 2000, 346 SCRA
485; Tatad v. Garcia, G.R. No. 114222, April 6, 1995, 243 SCRA 436; Kilosbayan v. Guingona, Jr., G.R. No. 113375,
May 5, 1994, 232 SCRA 110.
[20]
G.R. No. 160261, November 10, 2003, 415 SCRA 45.
[21]
Id. at 136-137.
[22]
Supra note 12.
[23]
Supra note 19.
[24]
G.R. No. 138587, October 10, 2000, 342 SCRA 2000.
[25]
G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49.
[26]
Cruz, PHILIPPINE POLITICAL LAW 55 (1995).
[27]
Harris, CASES AND MATERIALS ON INTERNATIONAL LAW 801 (2004).
[28]
Official Website of the UN <http://untreaty.un.org/English/guide.asp.>; cited in Abaya v. Ebdane, G.R.
No. 167919, February 14, 2007, 515 SCRA 720.
[29]
Abaya v. Ebdane, supra.
[30]
Id.; citing The Constitutionality of Trade Agreement Acts by Francis Sayre.
[31]
Cited in Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 (1961).
[32]
Executive Order No. 459, dated November 25, 1997, contains a similar definition.
[33]
B.A. Boczek, INTERNATIONAL LAW: A DICTIONARY 346 (2005).
[34]
Bayan v. Zamora, supra note 24; citing Richard Erickson, The Making of Executive Agreements by the US
Department of Defense, 13 Boston U. Intl. L. J. 58 (1955); Randall, The Treaty Power, 51 Ohio St. L.J., p. 4; see
also Restatement (Third) of Foreign Relations Law 301 (1987), which states that [t]he terminology used for
international agreements is varied. Among the terms used are: treaty, convention, agreement, protocol, covenant,
charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement,
memorandum of understanding, and modus vivendi. Whatever their designation, all agreements have the same legal
status, except as their provisions or the circumstances of their conclusion indicate otherwise. (Emphasis supplied.)
[35]
Id. at 489; citing 5 Hackworth, DIGEST OF INTERNATIONAL LAW 395; cited in USAFE Veterans
Association Inc. v. Treasurer of the Philippines, 105 Phil. 1030, 1037 (1959).
[36]
Reid v. Covert, 354 U.S. 77 S. Ct.1230.
[37]
In the US constitutional system, it is the legal force of treaties and executive agreements on the domestic plane.
[38]
Henkin, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 224 (2nd ed., 1996).
[39]
Prof. Edwin Borchard, Treaties and Executive Agreements Reply, Yale Law Journal, June 1945; cited in
Justice Antonio T. Carpios Dissent in Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009,
578 SCRA 438.
[40]
No. L-14279, October 31, 1961, 3 SCRA 351, 356.
[41]
No. L-30650, July 31, 1970, 34 SCRA 166.
[42]
Latin for agreements must be kept, BLACKS LAW DICTIONARY (8th ed., 2004). The principle
of pacta sunt servanda, in its most common sense, refers to private contracts, stressing that these pacts and clauses are
the law between the parties, and implying that the non-fulfilment of respective obligations is a breach of the pact.
With regard to international agreements, Art. 26 of the Vienna Convention on the Law of Treaties (signed
on May 23, 1969 and entered into force on January 27, 1980) states that every treaty in force is binding upon the
parties to it and must be performed by them in good faith. Pacta sunt servanda is based on good faith. This
entitles states to require that obligations be respected and to rely upon the obligations being respected. This good-faith
basis of treaties implies that a party to the treaty cannot invoke provisions of its domestic law as justification for a
failure to perform. The only limit to pacta sunt servanda is jus cogens (Latin for compelling law), the peremptory
norm of general international law.
[43]
Oona A. Hathaway, Presidential Power Over International Law: Restoring the Balance, 119 YLJ 140,
152 (2009).
[44]
Rotunda, Nowak and Young, TREATISE ON CONSTITUTIONAL LAW 394; cited in then Chief Justice Punos
dissent in Bayan v. Zamora, supra.
[45]
Nicolas, supra note 39.
[46]
Sec. 25. After the expiration in 1991 of the [RP-US Military Bases Agreement] 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
Congress so requires, ratified x x x in a national referendum held for that purpose, and recognized as a treaty by the
contracting state.
[47]
Supra note 39.
[48]
Supra note 41.
[49]
Supra note 31.
[50]
Article 27
Irrelevance of official capacity
1. This Statue shall apply equally to all persons without any distinction based on official capacity. In particular, official
capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in
and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national
or international law, shall not bar the Court from exercising its jurisdiction over such a person.
[51]
Article 86
General Obligation to Cooperate
States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its
investigation and prosecution of crimes within the jurisdiction of the Court.
[52]
Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the
request outlined in article 91, to any State on the territory of which that person may be found and shall request the
cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the
provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of neb
is in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there
has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the
execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the
request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory
of a person being surrendered to the Court by another State, except where transit through that State would impede or
delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall
contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory
of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for
transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported
until the request for transit is received and the transit is effected, provided that detention for purposes of this
subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within
that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different
from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request,
shall consult with the Court.
[53]
Article 90
Competing requests
1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also
receives a request from any other State for the extradition of the same person for the same conduct which forms the
basis of the crime for which the Court seeks the persons surrender, notify the Court and the requesting State of that
fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is
sought is admissible and that determination takes into account the investigation or prosecution conducted by the
requesting State in respect of its request for extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the requested States notification
under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending
the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the
requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The
Courts determination shall be made on an expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court,
if the Court has determined that the case is inadmissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at
its discretion, proceed to deal with the request for extradition from the requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to
extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to
surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested
State shall consider all the relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory
and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting State.
7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request
from any State for the extradition of the same person for conduct other than that which constitutes the crime for which
the Court seeks the persons surrender:
(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the
requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting
State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In
making its decision, the requested State shall consider all the relevant factors, including but not limited to those set
out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.
8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and
subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.
[54]
Tenth preambular paragraph of the ICC Statute.
[55]
1. Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is
inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is
unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to
prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely
to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial
by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
[56]
Latin for not twice for the same, a legal principle that means no legal action can be instituted twice for
the same cause of action. In gist, it is a legal concept substantially the same as or synonymous to double jeopardy.
[57]
A state is obliged to refrain from acts that would defeat the object and purpose of a treaty when: (a) it has
signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval,
until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be
bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly
delayed.
[58]
VIENNA CONVENTION ON THE LAW OF TREATIES, Art. 18.
[59]
Supra note 39.
[60]
CONSTITUTION, Art. II, Sec. 2.
[61]
Taada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.
[62]
Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948); cited in Agpalo, PUBLIC INTERNATIONAL
LAW 222-223 (2006).
[63]
Rollo, pp. 53-54.
[64]
Under VIENNA CONVENTION ON THE LAW OF TREATIES, Art. 18, a State has the obligations not
to defeat the object and purpose of a treaty prior to its entry into force when (a) it has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention
clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not unduly delayed.
[65]
Bayan v. Zamora, supra.
[66]
Id.; citing Commissioner of Customs, supra.
[67]
G.R. No. 158088, July 6, 2005, 462 SCRA 622.
[68]
Id. at 637-638; citing Cruz, INTERNATIONAL LAW 174 (1998).
[69]
Signature, ratification, acceptance, approval or accession.
1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and
Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature
in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain
open for signature in New York, at United Nations Headquarters, until 31 December 2000.
2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of
ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.
3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the
Secretary-General of the United Nations.
[70]
RA 9851, Secs. 4-6.
[71]
Id., Secs. 7-12.
[72]
Id., Secs. 17-18.
[73]
Republic Planters Bank v. Agana, Sr., G.R. No. 51765, May 3, 1997, 269 SCRA 1, 12.
[74]
Supra note 39.
[75]
456 U.S. 25 (1982).
[76]
Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009, 578 SCRA 438, 467.
[77]
G.R. No. 178830, July 14, 2008, 558 SCRA 329.
[78]
Id. at 376. (Emphasis supplied.)
[79]
Par. 1, Art. 2, RP-US Extradition Treaty, Senate Resolution No. 11, November 27, 1995 (emphasis
supplied).
[80]
18 U.S.C.A. 2441.
[81]
18 U.S.C.A. 1091.
[82]
Malcolm Shaw, INTERNATIONAL LAW 112 (2008).
[83]
Victoria K. Holt and Elisabeth W. Dallas, On Trial: The US Military and the International Criminal Court,
The Henry L. Stimson Center, Report No. 55, March 2006, p. 92; available at
<http://www.stimson.org/images/uploads/research-pdfs/US_Military_and_the_ICC_FINAL_website.pdf> last
visited January 27, 2011. We quote Holt and Dallas profiles from the report:
Victoria K. Holt is a senior associate at the Henry L. Stimson Center, where she co-directs the Future of
Peace Operations program. She has co-authored a study of peacekeeping reforms at the United Nations, analyzing the
implementation of the 2000 Brahimi Report recommendations, and recently completed reports on African capacity
for peace operations and the protection of civilians by military forces. Ms. Holt joined the Stimson Center in 2001,
bringing policy and political expertise on UN and peacekeeping issues from her work at the US Department of State,
in the NGO community and on Capitol Hill. She served as Senior Policy Advisor at the US State Department
(Legislative Affairs), where she worked with Congress on issues involving UN peacekeeping and international
organizations. Prior to joining State, she was Executive Director of the Emergency Coalition for US Financial Support
of the United Nations, and also directed the Project on Peacekeeping and the UN at the Center for Arms Control and
Nonproliferation in Washington, DC. From 1987 to 1994, Ms. Holt worked as a senior Congressional staffer, focusing
on defense and foreign policy issues for the House Armed Services Committee. She served as Legislative Director for
Rep. Thomas H. Andrews and as Senior Legislative Assistant to Rep. George J. Hochbrueckner. Ms. Holt is a graduate
of the Naval War College and holds a B.A. with honors from WesleyanUniversity.
Elisabeth W. Dallas is a research associate with the Henry L. Stimson Centers Future of Peace Operations
program and is focusing her work on the restoration of the rule of law in post-conflict settings. In particular, she is
analyzing what legal mechanisms are required to allow for international criminal jurisdiction within UN peace
operations. Prior to working at the Stimson Center, Ms. Dallas was a Senior Fellow with the Public International Law
& Policy Group in Washington, DC, where she served as a political and legal advisor for parties during international
peace negotiations taking place in the Middle East, the Balkans and South Asia. Ms. Dallas earned an MA
from Tufts Universitys Fletcher School of Law & Diplomacy with a concentration in International Negotiation &
Conflict Resolution and Public International Law, as well as a Certificate in Human Security and Rule of Law. She
earned her BA from Haverford College. (Emphasis supplied.)
[84]
( i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
[85]
(d) Common Article 3 violations.
(1) Prohibited conduct In subsection (c)(3), the term grave breach of common Article 3 means any conduct (such
conduct constituting a grave breach of common Article 3 of the international conventions done
at Geneva August 12, 1949), as follows:
(A) Torture. The act of a person who commits, or conspires or attempts to commit, an act specifically
intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to
lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining
information or a confession, punishment, intimidation, coercion, or any reason based on discrimination
of any kind.
(B) Cruel or inhuman treatment. The act of a person who commits, or conspires or attempts to commit, an
act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering
incidental to lawful sanction), including serious physical abuse, upon another within his custody or
control.
(C) Performing biological experiments. The act of a person who subjects, or conspires or attempts to subject,
one or more person within his custody or physical control to biological experiments without a legitimate
medical or dental purpose and in so doing endangers the body or health of such person or persons.
(D) Murder. The act of a person who intentionally or unintentionally in the course of committing any other
offense under this subsection, one or more persons taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or any other cause.
(E) Mutilation or maiming. The act of a person who intentionally injures, or conspires or attempts to injure,
or injures whether intentionally or unintentionally in the course of committing any other offense under
this subsection, one or more persons taking no active part in the hostilities, including those placed out of
combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any
mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any
legitimate medical or dental purpose.
(F) Intentionally causing serious bodily injury. The act of a person who intentionally causes, or conspires
or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in
violation of the law of war.
(G) Rape. The act of a person who forcibly or with coercion or threat of force wrongfully invades, or
conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital
opening of the victim with any part of the body of the accused, or with any foreign object.
(H) Sexual assault or abuse. The act of a person who forcibly or with coercion or threat of force engages, or
conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or
attempts to cause, one or more persons to engage in sexual contact.
(I) Taking hostages. The act of a person who, having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any
nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or
implicit condition for the safety or release of such person or persons.
(2) Definitions. In the case of an offense under subsection (a) by reason of subsection (c)(3)
(A) the term severe mental pain or suffering shall be applied for purposes of paragraphs (1)(A) and (1)(B)
in accordance with the meaning given that term in section 2340 (2) of this title;
(B) the term serious bodily injury shall be applied for purposes of paragraph (1)(F) in accordance with the
meaning given that term in section 113 (b)(2) of this title;
(C) the term sexual contact shall be applied for purposes of paragraph (1)(G) in accordance with the meaning
given that term in section 2246 (3) of this title;
(D) the term serious physical pain or suffering shall be applied for purposes of paragraph (1)(B) as meaning
bodily injury that involves
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) a significant loss or impairment of the function of a bodily member, organ, or mental faculty; and
(E) the term serious mental pain or suffering shall be applied for purposes of paragraph (1)(B) in accordance
with the meaning given the term severe mental pain or suffering (as defined in section 2340(2) of this
title), except that
(i) the term serious shall replace the term sever where it appears; and
(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006,
the term serious and non-transitory mental harm (which need not be prolonged) shall replace the
term prolonged mental harm where it appears.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack. The intent
specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability
of those subparagraphs to an offense under subsection (A) by reasons of subsection (C)(3) with respect to
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.
(4) Inapplicability of taking hostages to prisoner exchange. Paragraph (1)(I) does not apply to an offense under
subsection (A) by reason of subsection (C)(3) in the case of a prisoner exchange during wartime.
(5) Definition of grave breaches. The definitions in this subsection are intended only to define the grave breaches
of common Article 3 and not the full scope of United States obligations under that Article.
[86]
18 U.S.C.A. 2441.
[87]
Victoria K. Holt and Elisabeth W. Dallas, supra note 83, at 7.
[88]
Id. at 35.
[89]
175 U.S. 677, 20 S.Ct. 290 (1900).
[90]
Id. at 700; citing Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup.
Ct. Rep. 139.
[91]
14 U.S. 415, 1816 WL 1770 (U.S.Mass.) (1816).
[92]
11 U.S. (7 Cranch) 32 (1812).
[93]
Jordan J. Paust, CUSTOMARY INTERNATIONAL LAW AND HUMAN RIGHTS TREATIES ARE
LAW OF THE UNITED STATES, 20 MIJIL 301, 309 (1999).
[94]
11 U.S. (7 Cranch) 32, 32 (1812).
[95]
x x x [C]ustomary international law is part of the law of the United States to the limited extent that, 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. U.S. v. Yousef, 327 F.3d 56, 92 (2003).
[96]
317 U.S. 1 (1942).
[97]
Id. at 27-28; citing Talbot v. Jansen, 3 Dall. 133, 153, 159, 161, 1 L.Ed. 540; Talbot v. Seeman, 1 Cranch
1, 40, 41, 2 L.Ed. 15; Maley v. Shattuck, 3 Cranch 458, 488, 2 L.Ed. 498; Fitzsimmons v. Newport Ins. Co., 4 Cranch
185, 199, 2 L.Ed. 591; The Rapid, 8 Cranch 155, 159-164, 3 L.Ed. 520; The St. Lawrence, 9 Cranch 120, 122, 3 L.Ed.
676; Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191, 197, 198, 3 L.Ed. 701; The Anne, 3 Wheat. 435, 447, 448, 4
L.Ed. 428; United States v. Reading, 18 How. 1, 10, 15 L.Ed. 291; Prize Cases (The Amy Warwick), 2 Black 635, 666,
667, 687, 17 L.Ed. 459; The Venice, 2 Wall. 258, 274, 17 L.Ed. 866; The William Bagaley, 5 Wall. 377, 18 L.Ed.
583; Miller v. United States, 11 Wall. 268, 20 L.Ed. 135; Coleman v. Tennessee, 97 U.S. 509, 517, 24 L.Ed.
1118; United States v. Pacific R.R., 120 U.S. 227, 233, 7 S.Ct. 490, 492, 30 L.Ed. 634; Juragua Iron Co. v. United
States, 212 U.S. 297, 29 S.Ct. 385, 53 L.Ed. 520.
[98]
Id. at 29-30.
[99]
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Merits, I.C.J. judgment, February 26, 2007, 161; M. Cherif
Bassiouni, INTERNATIONAL CRIMES: JUS COGENS AND OBLIGATIO ERGA OMNES, 59-AUT Law &
Contemp. Probs. 63, 68.
[100]
I.C.J. Statute, art. 38, 1 (b) international custom, as evidence of a general practice accepted as law.
[101]
North Sea Continental Shelf, 1969 I.C.J. 77; cited in Patrick Simon S. Perillo, Transporting the Concept
of Creeping Expropriation from De Lege Ferenda to De Lege Lata: Concretizing the Nebulous Under International
Law, 53 ATENEO L.J. 434, 509-510 (2008).
[102]
North Sea Continental Shelf, 1969 I.C.J. 77; D.J. Harris, CASES AND MATERIALS ON
INTERNATIONAL LAW, 22 (2004).
[103]
North Sea Continental Shelf, 1969 I.C.J. at 175 (Tanaka, J., dissenting).
[104]
Fisheries Jurisdiction (U.K. v. Ice) (Merits), 1974 I.C.J. 3, 89-90 (de Castro, J., separate opinion).
[105]
North Sea Continental Shelf, 1969 I.C.J. 77.
[106]
M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-AUT Law &
Contemp. Probs. 63, 67.
[107]
Id.
[108]
Id.
[109]
Carlee M. Hobbs, THE CONFLICT BETWEEN THE ALIEN TORT STATUTE LITIGATION AND
FOREIGN AMNESTY LAWS, 43 Vand. J. Transnatl L. 505, 521 (2009-2010); citing Jeffrey L. Dunoff, et
al., INTERNATIONAL LAW: NORMS, ACTORS PROCESS 58-59 (2d ed., 2006).
[110]
Id.; citing Jeffrey L. Dunoff et al., INTERNATIONAL LAW: NORMS, ACTORS PROCESS 380 (2d
ed., 2006).
[111]
Id.
[112]
Id.
[113]
Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034, October
9, 2007, 535 SCRA 265.
[114]
See <http://www.icc-cpi.int/Menus/ASP/states+parties/> (last visited January 26, 2011).
[115]
<http://www.nationsonline.org oneworld /states.org> (last visited October 18, 2010). The list does not
include dependent territories.
[116]
Joaquin G. Bernas, S.J., AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 10-13 (2002);
cited in Pharmaceutical and Health Care Association of the Philippines v. Duque III, supra note 113, at 292.
[117]
Pharmaceutical and Health Care Association of the Philippines, supra note 113, at 290-291; citation
omitted.
[118]
Article 12. Preconditions to the exercise of jurisdiction.
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect
to the crimes referred to in article 5.
2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of
the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with
paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on
board a vessel or aircraft, the State of registration of that vessel or aircraft.
(b) The State of which the person accused of the crime is a national.
[119]
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Art. 25, par. 2.
[120]
G.R. No. 180643, September 4, 2003, 564 SCRA 152, 197-198.