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RALPH MAAMBONG

Article 2, Section 2, I. Adoption of International Law and the doctrine of incorporation as applied
to: A. Treaties and Agreements
Bayan v. Romulo GR 159618, Feb. 1, 2011 (RP-US Non-Surrender Agreement)
FACTS: In 2000, the Philippines signed the Rome Statute which, by its terms, is subject to
ratification, acceptance or approval by the signatory states. Peculiar to the case is the
characterisitic of the Rome Statue, which gives the ICC (International Criminal Court)
establishing the International Criminal Court (ICC) with the power to exercise its jurisdiction
over persons for the most serious crimes of international concernand shall becomplementary to
the national criminal jurisdictions.
In 2003, The Philippines, represented by then DFA Secretary Ople (deceasesd as of the
time of the petition), finalized a non-surrender agreement with the US which aimed to protect
certain persons of both the Philippines and US from frivolous and harassment suits that might be
brought against them in international tribunals. Respondent Alberto Romulo was impleaded in
his capacity as then Executive Secretary.
Petitioner imputes grave abuse of discretion to respondents in concluding and ratifying
the Agreement and prays that it be struck down as unconstitutional, or at least declared as
without force and effect.
ISSUE: Whether or not the RP-US Non Surrender Agreement is void for contracting obligations
that are either immoral or contradictory with universally recognized principles of international
law
HELD: No. The Agreement neither contravenes, undermines, nor differs from, the Rome Statute.
As a matter of fact, they complement each other. The principle of complementarity underpins the
creation of the ICC. In reference to Art. 1 of the Statute, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions [of signatory states]. the Rome Statute
expressly recognizes the primary jurisdiction of states, like the Philippines, over serious crimes
committed within their respective borders. The complementary jurisdiction of the ICC comes
into play only when the signatory states are unwilling or unable to prosecute.
Additionally, under international law, there is a considerable difference between a StateParty 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 detriment the object and purpose
of a treaty. The Philippines is only a signatory to the Rome Statute and not a State-Party for the
senate failed to ratify it. Thus, it is only obliged to refrain from acts which would defeat the
object and purpose of the Rome Statute. And 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