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Province of North Cotabato v.

Govt of the Republic of the Phils Peace Panel on Ancestral Domain On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom was supreme over the others. The MOA-AD goes on to describe the Bangsamoro people as the First Nation with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations . The MOA-AD then mentions for the first time the Bangsamoro Juridical Entity (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro. The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include aggression against the GRP. The BJE may also enter into environmental cooperation agreements. Issue: Do the contents of the MOA-AD violate the Constitution and the laws? Ruling: With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present Constitution and laws. In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind. Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government. The nature of the associative relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of association in international law, and the MOA-AD by its inclusion of international law instruments in its TOR placed itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term associative in the MOA-AD. Keitner and Reisman state that [a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands are associated states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership. Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJEs capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJEs participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. The concept of association is not recognized under the present Constitution No province, city, or municipality, not even the ARMM, is recognized under our laws as having an associative relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That constitutional provision states: The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. (Underscoring supplied) An associative arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for independence, is certainly not conducive to national unity.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. Constitutionality of the Visiting Forces Agreement Suzette Nicolas v. Alberto Romulo Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the VFA is void and unconstitutional. This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and, eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or military bases and facilities, which the United States retained for itself. This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained by the US. Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United States. Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our Senate. Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines. To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution. The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State. Applying the provision to the situation involved in these cases, the question is 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. This Court finds that it is, for two reasons. First, as held in Bayan v. Zamora, the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government. 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. The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate. Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty. Nicaragua v. United States The Republic of Nicaragua v. The United States of America was a 1984 case of the International Court of Justice (ICJ) in which the ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actual compensation. The Nicaraguan government finally withdrew the complaint from the court in September 1992 (under the later, post-FSLN, government of Violeta Chamorro), following a repeal of the law requiring the country to seek compensation. The Court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956."

The Court had 16 final decisions upon which it voted. In Statement 9, the Court stated that the U.S. encouraged human rights violations by the Contras by the manual entitled Psychological Operations in Guerrilla Warfare. However, this did not make such acts attributable to the U.S. General Principles of International Law Avelino Razon v. Mary Jean B. Tagitis We review in this petition for review on certiorari the decision dated March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009. This CA decision confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). This Decision reflects the nature of the Writ of Amparo a protective remedy against violations or threats of violation against the rights to life, liberty and security It embodies, as a remedy, the courts directive to police agencies to undertake specified courses of action to address the disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. On March 7, 2008, the CA issued its decision confirming that the disappearance of Tagitis was an enforced disappearance under the United Nations (UN) Declaration on the Protection of All Persons from Enforced Disappearances. Ruling: In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances under which Tagitis suddenly dropped out of sight after engaging in normal activities, and thereafter was nowhere to be found despite efforts to locate him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that according to reliable information, police operatives were the perpetrators of the abduction. It also clearly alleged how Tagitis rights to life, liberty and security were violated when he was forcibly taken and boarded on a motor vehicle by a couple of burly men believed to be police intelligence operatives, and then taken into custody by the respondents police intelligence operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his will in an earnest attempt of the police to involve and connect [him] with different terrorist groups. From the International Law perspective, involuntary or enforced disappearance is considered a flagrant violation of human rights. It does not only violate the right to life, liberty and security of the desaparecido; it affects their families as well through the denial of their right to information regarding the circumstances of the disappeared family member. Thus, enforced disappearances have been said to be a double form of torture, with doubly paralyzing impact for the victims, as they are kept ignorant of their own fates, while family members are deprived of knowing the whereabouts of their detained loved ones and suffer as well the serious economic hardship and poverty that in most cases follow the disappearance of the household breadwinner. Binding Effect of UN Action on the Philippines To date, the Philippines has neither signed nor ratified the Convention, so that the country is not yet committed to enact any law penalizing enforced disappearance as a crime. The absence of a specific penal law, however, is not a stumbling block for action from this Court, as heretofore mentioned; underlying every enforced disappearance is a violation of the constitutional rights to life, liberty and security that the Supreme Court is mandated by the Constitution to protect through its rule-making powers. Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its Charter and by the various conventions we signed and ratified, particularly the conventions touching on humans rights. Under the UN Charter, the Philippines pledged to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion. Although no universal agreement has been reached on the precise extent of the human rights and fundamental freedoms guaranteed to all by the Charter, it was the UN itself that issued the Declaration on enforced disappearance. As a matter of human right and fundamental freedom and as a policy matter made in a UN Declaration, the ban on enforced disappearance cannot but have its effects on the country, given our own adherence to generally accepted principles of international law as part of the law of the land In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III, we held that: 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. Isabelita Vinuya v. Executive Secretary The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by plaintiffs in these actions, exchanged full compensation of plaintiffs for a future peace. History has vindicated the wisdom of that bargain. And while full compensation for plaintiffs' hardships, in the purely economic sense, has been denied these former prisoners and countless other survivors of the war, the immeasurable bounty of life for themselves and their posterity in a free society and in a more peaceful world services the debt. Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the Securities and Exchange Commission, established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War. Our Ruling Stripped down to its essentials, the issue in this case is whether the Executive Department committed grave abuse of discretion in not espousing petitioners claims for official apology and other forms of reparations against Japan.

From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to espouse petitioners claims against Japan. In Taada v. Cuenco we held that political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." Certain types of cases often have been found to present political questions. One such category involves questions of foreign relations. It is well-established that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative--'the political'--departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision. The Executive Department has determined that taking up petitioners cause would be inimical to our countrys foreign policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For us to overturn the Executive Departments determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed. In any event, it cannot reasonably be maintained that the Philippine government was without authority to negotiate the Treaty of Peace with Japan. Indeed, except as an agreement might otherwise provide, international settlements generally wipe out the underlying private claims, thereby terminating any recourse under domestic law. The Philippines is not under any international obligation to espouse petitioners claims. In the international sphere, traditionally, 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 individuals behalf Even then, it is not the individuals rights that are being asserted, but rather, the states own rights. The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it is granted, and when will it cease. It retains, in this respect, a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case. Doctrine of Incorporation Lourdes Rubrico v. Gloria Macapagal Arroyo In this petition for review under Rule 45 of the Rules of Court in relation to Section of the Rule on the Writ of Amparo (Amparo Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and seek to set aside the Decision of the Court of Appeals (CA) dated July 31, 2008 in CA-G.R. SP No. 00003, a petition commenced under the Amparo Rule. While in a qualified sense tenable, the dismissal by the CA of the case as against Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against the backdrop of the stated rationale underpinning the assailed decision vis--vis the two generals, i.e., command responsibility. The Court assumes the latter stance owing to the fact that command responsibility, as a concept defined, developed, and applied under international law, has little, if at all, bearing in amparo proceedings. The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, command responsibility, in its simplest terms, means the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict .In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility foreshadowing the present-day precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is an omission mode of individual criminal liability, whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators. (as opposed to crimes he ordered). The doctrine has recently been codified in the Rome Statute of the International Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military commanders for crimes committed by forces under their control. The country is, however, not yet formally bound by the terms and provisions embodied in this treaty-statute, since the Senate has yet to extend concurrence in its ratification. While there are several pending bills on command responsibility, there is still no Philippine law that provides for criminal liability under that doctrine. It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution Still, it would be inappropriate to apply to these proceedings the doctrine of command responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for individual respondents criminal liability, if there be any, is beyond the reach of amparo. In other words, the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. As the

Court stressed in Secretary of National Defense v. Manalo (Manalo). the writ of amparo was conceived to provide expeditious and effective procedural relief against violations or threats of violation of the basic rights to life, liberty, and security of persons; the corresponding amparo suit, however, is not an action to determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability requiring substantial evidence that will require full and exhaustive proceedings.Of the same tenor, and by way of expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis: It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or extra-judicial killings]; it determines responsibility, or at least accountability, for the enforced disappearance [threats thereof or extra-judicial killings] for purposes of imposing the appropriate remedies to address the disappearance [or extra-judicial killings]. As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal x x x are matters of substantive law that only the Legislature has the power to enact.x x x

Magallona vs Ermita
Facts:

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the

Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over their territorial sea, the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo. In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands generate their own applicable maritime zones. Petitioners, professors of law, law students and a legislator, in their respective capacities as citizens, taxpayers or x x x legislators,9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine states sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the countrys nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions. Respondents also question the normative force, under international law, of petitioners assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris. Issue: Is RA 9522 unconstitutional? Held: UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic States graduated authority over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the archipelago.24 UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.26 The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that baselines are relevant for this purpose. Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles. Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall not exceed 100 nautical miles, save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31 Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint will inevitably depart to an appreciable extent from the general configuration of the archipelago.

Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of the Philippines consistent with Article 12136 of UNCLOS III manifests the Philippine States responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed area of land, surrounded by water, which is above water at high tide, such as portions of the KIG, qualifies under the category of regime of islands, whose islands generate their own applicable maritime zones. The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41 In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community. The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47 Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, do not embody judicially enforceable constitutional rights x x x.49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are not violated by RA 9522. In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it. UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.53 UNCLOS III, however,

preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III. The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest. BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, Petitioner, vs. ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, Respondents. Facts:This petition1 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). On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP. Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as "persons" of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries.9 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.10 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. 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.

Issue: Is the Non-Surrender Agreement an executive agreement? Held: Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement. Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines, practices, and jargonsis untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations.26 An exchange of notes falls "into the category of inter-governmental agreements,"27 which is an internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows: An "exchange of notes" is a record of a routine agreement, that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.28 In another perspective, the terms "exchange of notes" and "executive agreements" have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action.29 On the other hand, executive agreements concluded by the President "sometimes take the form of exchange of notes and at other times that of more formal documents denominated agreements or protocols."30 As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts: The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchange of notes or otherwise begin, may sometimes be difficult of ready ascertainment.31 x x x It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be boundis a recognized mode of concluding a legally binding international written contract among nations. Senate Concurrence Not Required Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."32 International agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.33 Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned,34 as long as the negotiating functionaries have remained within their powers.35 Neither, on the domestic sphere, can one be held valid if it violates the Constitution.36 Authorities are, however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect.37 As has been observed by US constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people;38 a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment.39 Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following observations made by US legal scholars: "[I]nternational agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature take the form of executive agreements." 40 Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subjectcategories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims. In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,41 holding that an executive agreement through an exchange of notes cannot be used to amend a treaty.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties intent and desire to craft an international agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda42 principle. 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 And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a treaty-implementing executive agreement,45 which necessarily would cover the same matters subject of the underlying treaty. But over and above the foregoing considerations is the fact thatsave for the situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution46when 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. Petitioners reliance on Adolfo47 is misplaced, said case being inapplicable owing to different factual milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the concurrence of the Senate for its ratification may not be used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a treaty, purportedly being subject to amendment by an executive agreement, does not obtain under the premises. 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. The Agreement Not in Contravention of the Rome Statute It is the petitioners next contention that the Agreement undermines the establishment of the ICC and is null and void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted solely for the purpose of providing individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such grant of immunity through non-surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that state parties with nonsurrender agreements are prevented from meeting their obligations under the Rome Statute, thereby constituting a breach of Arts. 27,50 86,51 8952 and 9053 thereof. Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but as a last resort, by the ICC; thus, any agreementlike the non-surrender agreementthat precludes the ICC from exercising its complementary function of acting when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome Statute. 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. Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it differ from, the Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of

complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the ICC is to "be complementary to national criminal jurisdictions [of the signatory states]."54 Art. 1 of the Rome Statute. Moreover, under international law, 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 refrain from acts which would defeat the object and purpose of a treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith. In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a StateParty for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would be premature. As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon State-Parties, not signatories. Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f 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. x x x" In applying the provision, certain undisputed facts should be pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an international agreement between the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of international agreements entered into between States, even when one of the States is not a State-Party to the Rome Statute. Sovereignty Limited by International Agreements 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. 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 jurisdictionto the extent agreed uponto subjects of another State due to the recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v. Romulo59a case involving the implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreementis apropos: 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 States territory. x x x To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into an international agreement, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and amity with all nations.60 By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other. On the rationale that the Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion

of sovereignty may be waived without violating the Constitution.61 Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts.62 Agreement Not Immoral/Not at Variance with Principles of International Law Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, "leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x."63 The above argument is a kind of recycling of petitioners earlier position, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles.64 The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, "is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a recognition of the primacy and competence of the countrys judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously." Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute. Agreement Need Not Be in the Form of a Treaty 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: Section 17. Jurisdiction. x x x x In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties. (Emphasis supplied.) A view is advanced that the Agreement amends existing municipal laws on the States obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war crimes. Relying on the abovequoted statutory proviso, the view posits that the Philippine is required to surrender to the proper international tribunal those persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to prosecute them. The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper international tribunal; or (2) surrender the accused to another State if such surrender is "pursuant to the applicable extradition laws and treaties." But the Philippines may exercise these options only in cases where "another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime;" otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA 9851. Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851, the Philippines has the option to surrender such US national to the international tribunal if it decides not to prosecute such US national here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise such option, requires an amendatory law. In line with this scenario, the view strongly argues that the Agreement prevents the Philippineswithout the consent of the USfrom surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with the corresponding formalities.

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.1avvphi1 Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not exercise its primary jurisdiction in cases where "another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that the surrender may be made "to another State pursuant to the applicable extradition laws and treaties." The Agreement can already be considered a treaty following this Courts decision in Nicolas v. Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an executive agreement is a treaty within the meaning of that word in international law and constitutes enforceable domestic law vis--vis the United States."76 Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851. The views reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions were filed questioning the power of the President to enter into foreign loan agreements. However, before the petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine Government decided not to continue with the ZTE National Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took judicial notice of the act of the executive department of the Philippines (the President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions. 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.

This view must fail. 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.801avvphi1 Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit: 1091. Genocide (a) Basic Offense Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group; shall be punished as provided in subsection (b).81 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 authors83 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: Rome Statute Article 6 Genocide For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. 1091. Genocide (a) Basic Offense Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group; shall be punished as provided in subsection (b). Article 8 War Crimes 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: x x x84 (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: xxxx (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and (d) 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]85) 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.86 US Law

those placed hors de combat by sickness, wounds, detention or any other cause: xxxx (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: x x x. 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. Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana89 case already held international law as part of the law of the US, to wit: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for the trustworthy evidence of what the law really is.90 (Emphasis supplied.) 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 Quirin96 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 Customary international law or international custom is a source of international law as stated in the Statute of the ICJ.100 It is defined as the "general and consistent practice of states recognized and followed by them from a sense of legal obligation."101 In order to establish the customary status of a particular norm, two elements must concur: State practice, the objective element; and opinio juris sive necessitates, the subjective element.102 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. Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is not declaratory of customary international law. The first element of customary international law, i.e., "established, widespread, and consistent practice on the part of States,"113 does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October 12, 2010, only 114114 States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of 194115 countries in the world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the status of customary law and should be deemed as obligatory international law. The numbers even tend to argue against the urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the Senate for the ratification process. And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus: Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris] x x x." This statement contains the two basic elements of custom: the material factor, that is how the states behave, and the psychological factor or subjective factor, that is, why they behave the way they do. 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. The required duration can be either short or long. x x x Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.116 (Emphasis added.) Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.117 Like the first element, the second element has likewise not been shown to be present. 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. More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, "[t]he power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence."120 The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid. 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. Go, Sr. v Ramos Facts: Three cases arose from the same factual milieu. These petitions stemmed from the complaint-affidavit for deportation initiated by Luis T. Ramos before the Bureau of Immigration and Deportation (now Bureau of Immigration) against Jimmy T. Go alleging that the latter is an illegal and undesirable alien. Luis alleged that while Jimmy represents himself as a Filipino citizen, Jimmys personal circumstances and other records indicate that he is not so. To prove his contention, Luis presented the birth certificate of Jimmy, issued by the Office of the Civil Registrar of Iloilo City, which indicated Jimmys citizenship as FChinese. Luis argued that although it appears from Jimmys birth certificate that his parents, Carlos and Rosario Tan, are Filipinos, the document seems to be tampered, because only the citizenship of Carlos appears to be handwritten while all the other entries were typewritten. He also averred that in September 1989, Jimmy, through stealth, machination and scheming managed to cover up his true citizenship, and with the use of falsified documents and untruthful declarations, was able to procure a Philippine passport from the Department of Foreign Affairs. Jimmy refuted the allegations in his counter-affidavit, averring that the complaint for deportation initiated by Luis was merely a harassment case designed to oust him of his rightful share in their business dealings. He alleged that his father Carlos, who was the son of a Chinese father and Filipina mother, elected Philippine citizenship in accordance with Article IV, Section 1, paragraph 4 of the 1935 Constitution and Commonwealth Act No. 625 (Com. Act No. 625), as evidenced by his having taken the Oath of Allegiance on July 11, 1950 and having executed an Affidavit of Election of Philippine citizenship on July 12, 1950. Although the said oath and affidavit were registered only on September 11, 1956, the reason behind such late registration was sufficiently explained in an affidavit. Jimmy added that he had even voted in the 1952 and 1955 elections. He denied that his father arrived in the Philippines as an undocumented alien, alleging that his father has no record of arrival in this country as alleged in the complaint-affidavit precisely because his father was born and raised in the Philippines, and in fact, speaks fluent Ilonggo and Tagalog. With regard to the erroneous entry in his birth certificate that he is FChinese, he maintained that such was not of his own doing, but may be attributed to the employees of the Local Civil Registrars Office who might have relied on his Chinese-sounding surname when making the said entry. He asserted that the said office has control over his birth certificate; thus, if his fathers citizenship appears to be handwritten, it may have been changed when the employees of that office realized that his father has already taken his oath as a Filipino. As regards the entry in his siblings certificates of birth, particularly Juliet Go and Carlos Go, Jr., that their father is Chinese, Jimmy averred that the entry was erroneous because it was made without prior consultation with his father. In a Resolution dated February 14, 2001, Associate Commissioner Linda L. Malenab-Hornilla dismissed the complaint for deportation against Jimmy. She affirmed the findings of the National Bureau of Investigation tasked to investigate the case that Jimmys father elected Filipino citizenship in accordance with the provisions of the 1935 Philippine Constitution. By operation of law, therefore, the citizenship of Carlos was transmitted to Jimmy, making him a Filipino as well. On March 8, 2001, the Board of Commissioners (Board) reversed said dismissal, holding that Carlos election of Philippine citizenship was made out of time. Finding Jimmys claim to Philippine citizenship in serious doubt by reason of his fathers questionable election thereof, the Board directed the preparation and filing of the appropriate deportation charges against Jimmy. On July 3, 2001, the corresponding Charge Sheet was filed against Jimmy, charging him of violating provisions of The Philippine Immigration Act of 1940.

On November 9, 2001, Carlos and Jimmy filed a petition for certiorari and prohibition, docketed as SCA No. 2218, seeking to annul and set aside the March 8, 2001 Resolution of the Board of Commissioners, the Charge Sheet, and the proceedings. In essence, they challenged the jurisdiction of the Board to continue with the deportation proceedings. In the interim, the Board issued a Decision ordering the apprehension and deportation of Jimmy. In view of the said Decision, Carlos and Jimmy filed on June 13, 2002 a supplemental petition for certiorari and prohibition before the trial court and reiterated their application for injunctive reliefs. The trial court issued a writ of preliminary prohibitory injunction pending litigation on the main issue, enjoining the Bureau from enforcing the April 17, 2002 Decision. Later, however, the trial court dissolved the writ in a Decision dated January 6, 2004 as a consequence of the dismissal of the petition. Carlos and Jimmy moved for reconsideration. But their motion was likewise denied. Following the dismissal of the petition in SCA No. 2218, the Board issued a warrant of deportation which led to the apprehension of Jimmy. Jimmy commenced a petition for habeas corpus, but the same was eventually dismissed by reason of his provisional release on bail. Carlos and Jimmy then questioned the Decision in SCA No. 2218 as well as the Resolution denying their motion for reconsideration by way of a petition for certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 85143. They imputed grave abuse of discretion by the trial court for passing upon their citizenship, claiming that what they asked for in their petition was merely the nullification of the March 8, 2001 Resolution and the charge sheet. The appellate tribunal dismissed the petition. It did not find merit in their argument that the issue of citizenship should proceed only before the proper court in an independent action, and that neither the Bureau nor the Board has jurisdiction over individuals who were born in the Philippines and have exercised the rights of Filipino citizens. The appellate tribunal also rejected their claim that they enjoy the presumption of being Filipino citizens. Unfazed with the said ruling, they moved for reconsideration. Their motion having been denied, Carlos and Jimmy each filed a petition for review on certiorari before the Supreme Court. Bureau of Immigration Commissioner Alipio F. Fernandez, Jr. issued Warrant of Deportation which resulted in the apprehension and detention of Jimmy at the Bureau of Immigration Bicutan Detention Center, pending his deportation to China. On account of his detention, Jimmy once again filed a petition for habeas corpus before the RTC of Pasig City, Branch 167, docketed as SP. Proc. No. 11507 assailing his apprehension and detention despite the pendency of his appeal and his release on recognizance. In an Order, the trial court dismissed the said petition ruling that the remedy of habeas corpus cannot be availed of to obtain an order of release once a deportation order has already been issued by the Bureau. Jimmy moved for reconsideration of the Order, but this was also denied by the trial court. The Court of Appeals granted the petition and enjoined the deportation of Jimmy until the issue of his citizenship is settled with finality by the court. Issue/s: Whether or not the petition for habeas corpus should be dismissed? Held: Yes. Bureau of Immigration maintains that the dismissal of the petition for habeas corpus by the trial court was proper. A petition for habeas corpus has for its purpose only the determination of whether or not there is a lawful ground for Jimmys apprehension and continued detention. They urge that the decision of the Board dated April 17, 2002 that ordered Jimmys deportation has already attained finality by reason of the belated appeal taken by Jimmy from the said decision on April 2, 2004 before the Office of the President, or after almost two years from the time the decision was rendered. Said decision of the Board, they insist, is the lawful ground that sanctions Jimmys apprehension and detention. They also argue that Jimmy cannot rely on the bail on recognizance he was previously granted to question his subsequent apprehension and detention. Under the Philippine Immigration Act of 1940, the power to grant bail can only be exercised while the alien is still under investigation, and not when the order of deportation had already been issued by the Board. Hence, the bail granted was irregular as it has no legal basis. Furthermore, they said the petition for habeas corpus necessarily has to be dismissed because the same is no longer proper once the applicant thereof has been charged before the Board, which is the case with Jimmy. Nonetheless, they claim that the habeas corpus case is rendered moot and academic as Jimmy is no longer being detained. On the other hand, Jimmy counters that the instant petition for certiorari and prohibition is the most appropriate, speedy and adequate remedy in spite of the availability of ordinary appeal considering that what is involved in this case is his cherished liberty. Grave abuse of discretion on the part of the petitioners in ordering his arrest and detention, he argues, all the more justifies the avails of the extraordinary writ. Jimmy argues that the April 17, 2002 Decision of the Board has not attained finality owing to the availability of various remedies, one of which is an appeal, and in fact is actually void because it was rendered without due process. He also insists that the bail issued to him is valid and effective until the final determination of his citizenship before the proper courts. Moreover, he maintains that the petition for habeas corpus was proper since its object is to inquire into the legality of ones detention, and if found illegal, to order the release of the detainee. Jimmy also contends that the proceedings before the Board is void for failure to implead therein his father, and that he should have been given a full blown trial before a regular court where he can prove his citizenship.

Considering the arguments and contentions of the parties, we find the petition meritorious. We have held in a litany of cases that the extraordinary remedies of certiorari, prohibition and mandamus are available only when there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. The writ of certiorari does not lie where an appeal may be taken or where another adequate remedy is available for the correction of the error. The petitioners correctly argue that appeal should have been the remedy availed of as it is more plain, speedy and adequate. The 48-hour appeal period demonstrates the adequacy of such remedy in that no unnecessary time will be wasted before the decision will be re-evaluated. A petition for the issuance of a writ of habeas corpus is a special proceeding governed by Rule 102 of the Revised Rules of Court. The objective of the writ is to determine whether the confinement or detention is valid or lawful. If it is, the writ cannot be issued. What is to be inquired into is the legality of a persons detention as of, at the earliest, the filing of the application for the writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 4[98] of Rule 102, be no longer illegal at the time of the filing of the application. Once a person detained is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term court in this context includes quasi-judicial bodies of governmental agencies authorized to order the persons confinement, like the Deportation Board of the Bureau of Immigration. Likewise, the cancellation of his bail cannot be assailed via a petition for habeas corpus. When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the Regional Trial Courts have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it. Given that Jimmy has been duly charged before the Board, and in fact ordered arrested pending his deportation, coupled by this Courts pronouncement that the Board was not ousted of its jurisdiction to continue with the deportation proceedings, the petition for habeas corpus is rendered moot and academic.

The Corfu Channel Case (United Kingdom v. Albania) 1949 ICJ 4 (April 9)
Summery Corfu Channel Case; United Kingdom Vs Albania 1946: Facts/ background: On May 15th. 1946 the British warships passed through the Channel without the approval of the Albanian government and were shot at. Later, on October 22nd, 1946, a squadron of British warships (two cruisers and two destroyers), left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. Both destroyers were struck by mine and were heavily damaged. This incident resulted also in many deaths. The two ships were mined in Albanian territorial waters in a previously swept and check-swept channel. After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in which it announced its intention to sweep the Corfu Channel shortly. The Albanian reply, which was received in London on October 31st, stated that the Albanian Government would not give its consent to this unless the operation in question took place outside Albanian territorial waters. Meanwhile, at the United Kingdom Government's request, the International Central Mine Clearance Board decided, in a resolution of November 1st, 1946, that there should be a further sweep of the Channel, subject to Albania's consent. The United Kingdom Government having informed the Albanian Government, in a communication of November 10th, that the proposed sweep would take place on November 12th, the Albanian Government replied on the 11th, protesting against this 'unilateral decision of His Majesty's Government'. It said it did not consider it inconvenient that the British fleet should undertake the sweeping of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to decide what area of the sea should be deemed to constitute this channel, and proposed the establishment of a Mixed Commission for the purpose. It ended by saying that any sweeping undertaken without the consent of the Albanian Government outside the channel thus constituted, i.e., inside Albanian territorial waters where foreign warships have no reason to sail, could only be considered as a deliberate violation of Albanian territory and sovereignty. After this exchange of notes, 'Operation Retail' took place on November 12th and 13th. One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu.

Issues: The British government claimed the minefield which caused the explosions was laid between May 15th, 1946, and October 22nd, 1946, by or with the approval or knowledge of the Albanian Government. Thus Albania was responsible for the explosions and loss of life and had to compensate the UK government. In addition to the passage of the United Kingdom warships on October 22nd, 1946, the second question in the Special Agreement relates to the acts of the Royal Navy in Albanian waters on November 12th and 13th, 1946 when the British government carried out a minesweeping operation called 'Operation Retail' without the consent of Albania. UK held the opinion the passage on October 22nd, 1946 was innocent and that according to rules of international law it had the right to innocent passage through the North Corfu Channel as it is considered part of international highways and does not need a previous approval of the territorial state. The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense; but it denies that this Channel belongs to the class of international highways through which a right of passage exists, on the grounds that it is only of secondary importance and not even a necessary route between two parts of the high seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu. Thus a previous approval of the territorial state is necessary. 1) Should the North Corfu Channel as it is considered part of international highways? 2) Is Albania responsible under international law for the explosions which occurred on the 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation?' Analysis: The court analyses the geographical situation of the channel connects two parts of the high seas and is in fact frequently being used for international navigation. Taking into account these various considerations, the Court concludes that the North Corfu Channel should be considered as belonging to the class of international highways through which an innocent passage does not need special approval and cannot be prohibited by a coastal State in time of peace. The UK government claims that on October 22nd, 1946, Albania neither notified the existence of the minefield, nor warned the British warships of the danger they were approaching. According to the principle of state responsibility, they should have done all necessary steps immediately to warn ships near the danger zone, more especially those that were approaching that zone. In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania. But Albania's obligation to notify shipping of the existence of mines in her waters depends on her having obtained knowledge of that fact in sufficient time before October 22nd; and the duty of the Albanian coastal authorities to warn the British ships depends on the time that elapsed between the moment that these ships were reported and the moment of the first explosion. Conclusion of the court: The Court therefore reaches the conclusion that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the United Kingdom. In the second part of the Special Agreement, the following question is submitted to the Court: (2) Has the United Kingdom under international law violated the sovereignty of the Albanian People's Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th November 1946 and is there any duty to give satisfaction? Albania was in fact in war with Greece which means that the coastal state was not in time of peace. UK had not an innocent passage due to the way it was carried out. The court assessed the manner of UK warships after they had been shot at May 15th. Having thus examined the various contentions of the Albanian Government in so far as they appear to be relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946. The United Kingdom Government does not dispute that 'Operation Retail' was carried out against the clearly expressed wish of the Albanian Government. It recognizes that the operation had not the consent of the international mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly

that, in principle, international law does not allow a State to assemble a large number of warships in the territorial waters of another State and to carry out minesweeping in those waters. The United Kingdom Government states that the operation was one of extreme urgency, and that it considered itself entitled to carry it out without anybody's consent. The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, The United Kingdom Agent, in his speech in reply, has further classified 'Operation Retail' among methods of self-protection or self-help. The Court cannot accept this defense either find a place in international law. Final conclusion of the court: 1) On the first question put by the Special Agreement of March 25th, 1948, The court gives judgment that the People's Republic of Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life that resulted there from; and Reserves for further consideration the assessment of the amount of compensation and regulates the procedure on this subject. 2) On the second question put by the Special Agreement on the violation of state sovereignty, The court gives judgment that the United Kingdom did not violate the sovereignty of the People's Republic of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946; and unanimously, gives judgment that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People's Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction.