From the SelectedWorks of Benjamin E.

Brockman-Hawe

2010

Nicolas v. Romulo: Supreme Court of the

Philippines Rules on Post-Medellin
Constitutionality of a Sole-Executive Agreement
Negotiated with the United States
Benjamin E. Brockman-Hawe, American Society of International Law

Available at: https://works.bepress.com/benbh/4/

Nicolas v. Romulo: Supreme Court of the Philippines Rules on Post-Medellin
Constitutionality of a Sole-Executive Agreement Negotiated with the United States

By Benjamin Brockman-Hawe
On February 11, 2009 the Supreme Court of the Philippines (“the Court”) En Banc
handed down its judgment in the consolidated cases of Suzette Nicolas y Sombilon vs. Alberto
Romulo, etc., et.al., Jovito Salonga, et. al. vs. Daniel Smith, et. al., and Bagong Alyansang
Makabayan (BAYAN), etc., et. al. vs. President Gloria Macapagal Arroyo, etc., et. al.1 The
Court, by a vote of 9-4 with two abstentions,2 upheld the constitutionality of the RP-US Visiting
Forces Agreement (VFA), which establishes jurisdiction over U.S. military personnel traveling
to the Philippines, and with reference to the Subic Rape Case declared that the Romulo-Kenney
Agreements of December 19 and 22, 2006 were inconsistent with the VFA. Nicolas is
noteworthy as the first decision in which a foreign court considered the effect of the U.S.
Supreme Court’s ruling in Medellin v. Texas3 on an agreement concluded with the President of
the United States but not ratified by the U.S. Senate (a ‘sole-executive agreement’).4 This
comment analyzes the case and its implications for U.S. foreign relations.
Background
U.S. – Philippine Relations
Between 1898 and 1946 the Philippines were a territory of the United States, and the
relationship between the two countries was characterized by slow transfer of sovereignty from
the latter to the former.5 Having achieved full independence in 1946, the Republic of the
Philippines became a treaty ally of the United States under the1951 Mutual Defense Treaty

1
Judgment in the Joined Cases of G.R. No. 175888, G.R. No. 17605 and G.R. No. 17622, Suzette Nicolas y
Sombilon vs. Alberto Romulo, etc., et al., Sup. Ct. Philippines (February 19, 2009) available at
http://sc.judiciary.gov.ph/jurisprudence/2009/feb2009/175888.htm
2
Justice Antonio Eduardo Nachura, solicitor general when the suit reached the SC, and the newly appointed Justice
Diosdado Peralta recused themselves.
3
552 U.S. ___ (2008) (slip opinion) available at http://www.supremecourtus.gov/opinions/07pdf/06-984.pdf. For a
full discussion of Medellin see Margaret E. McGuinness, ASIL Insight, Medellin v. Texas: Supreme Court Holds
ICJ Decisions under the Consular Convention Not Binding Federal Law, Rejects Presidential Enforcement of ICJ
Judgments over State Proceedings, April 18, 2008, available at
http://www.asil.org/insights080418.cfm
4
For a more thorough discussion of the Presidents authority to conclude sole-executive agreements before Medellin
see Frederic L. Kirgis, ASIL Insight, International Agreements and U.S. Law, May 1997, available at
http://www.asil.org/insigh10.cfm
5
See generally, Teodoro C. Agoncillo, HISTORY OF THE FILIPINO PEOPLE (8th ed. 1990).
(MDT).6 United States military personnel were stationed on 23 sites in the Philippines until
1991, when the Military Bases Agreement governing the bases expired and was not replaced.7
However, in response to a 1995 territorial dispute with China in the South China Sea, President
Ramos invited the U.S. to negotiate a new Visiting Forces Agreement with the Philippines.8 In
1998 consultations for a VFA concluded, and the resulting document, in which both countries
reaffirmed their commitment to the MDT, entered into force on May 27, 1999.9
The Visiting Forces Agreement
The VFA has been ratified by the Phillipine Senate and, as an agreement concluded
solely by the U.S. President, was registered with the U.S. Congress under the of the Case-
Zablocki Act.10 The primary purpose of the VFA is to establish rules governing the relatioship
between U.S. servicemembers visting the Phillipines and Philippine law. Regarding criminal
jurisdiction, Article V establishes the sole jurisdiction of Filipino authorities over US personnel
who violate any Philippine laws, but U.S. military authorities have exclusive jurisdiction over
crimes against American property, security or personnel, and retain the right to exercise sole
jurisdiction over any personnel accused of committing a crime during the performance of their
official duties.11 The VFA also establishes various procedural safeguards for U.S.
servicemembers detained, taken into custody, or prosecuted by Philippine authorities, including
the right to a prompt and speedy trial, to be informed of the charges against them and to be
granted access to appropriate U.S. authorities.12
The Subic Rape Case and the Romulo-Kenney Agreements of 2006
In December 2005 a Filipino prosecutor issued indictments against four members of the
U.S. Armed Forces for allegedly raping a Filipino woman, dubbed “Nicole” by the media, in
Subic. One year later the Regional Trial Court of Makati acquitted three of the servicemen but

6
Mutual Defense Treaty between the United States of America and the Republic of the Philippines, 3 U.S.T. 3947,
entered into force August 27, 1952.
7 Donald E. Weatherbee, Ralf Emmers, Mari Pangestu, Leonard C. Sebastian, INTERNATIONAL RELATIONS IN
SOUTHEAST ASIA: THE STRUGGLE FOR AUTONOMY 84 (2005); Renato Constantino, THE PHILIPPINES:
THE CONTINUING PAST 205 (1978).
8 Bernard D. Cole, THE GREAT WALL AT SEA: CHINAS NAVY ENTERS THE 21ST CENTURY 43 (2001)
9
Agreement Between the Government of the Republic of the Philippines and the Government of the United States
of America Regarding the Treatment of United States Armed Forces Visiting the Philippines, T.I.A.S., entered into
force June 1, 1999, Preamble, available at http://www.derechos.org/nizkor/us/doc/vfa.html
10
The Case-Zablocki Act of August 22, 1972, 1 USC 112b. See also Decision, supra note 1, para. 45.
11
VFA, supra note 9, Arts. 5(1) - 5(3).
12
Id. at Art. V(9).
convicted Lance Corporal Daniel Smith of rape.13 The Trial Court ordered that Smith be
confined to the Makati jail pending his transfer to the National Bilibid Prison in Muntinlupa City.14
Smith filed a motion for reconsideration on December 5, 2006, which the Trial Court denied the
following day.15 On December 14, 2006 he filed a petition for certiorari with the Court of
Appeals.16
The Romulo-Kenney Agreements were arranged between and signed by Ambassador
Kristie Kenney on one side, and respectively Chief State Prosecutor Jovencito Zuno and
Secretary of Foreign Affairs Alberto G. Romulo on the other. Ostensibly “in accordance with
the Visiting Forces Agreement”, they provided for the transfer of Smith from the Makati jail to a
detention facility operated by the U.S. government and dictated the conditions of his detention
there.17 As per the Agreements, on December 29, 2006 Smith was transferred to the custody of
the U.S.. On January 3, 2007 the Court of Appeals held that the petition for certiorari filed by
Smith was moot in light of this arrangement.18 Petitioners challenged this decision, arguing that
the Philippines should maintain physical custody over Smith since the VFA was incompatible
with several provisions of the 1987 Constitution of the Republic of the Philippines.
The Majority Decision
The Court began by examining the consistency of the VFA with the Filipino Constitution,
which requires at Article XVII, Section 25 that “foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the Senate and. .
.recognized as a treaty by the other Contracting State.”19 After noting that Section 25 should be
read broadly in light of its purpose, which is “to ensure that any agreement allowing [a foreign
military presence] be equally binding on the Philippines and the foreign sovereign state
involved”,20 the Court concluded that the VFA met the constitutional requirement for two
reasons. First, as held by the Court in the prior case Bayan v. Zamora nearly one decade ago,21

13
Decision, supra note 1, para 6.
14
Id. at para. 7.
15
Puno C.J., dissenting at para. 6 available at
http://sc.judiciary.gov.ph/jurisprudence/2009/feb2009/175888_176051_176222_puno.htm
16
Id. at para 7.
17
Decision, supra note 1, para. 8.
18
Id. at para 9.
19
Id. at para. 14.
20
Id. at para. 21.
21
Judgment in the Joined Cases of G.R. No. 138570 , G.R. No. 138572, G.R. No. 138587, G.R. No. 138680, and
G.R. No. 138698, BAYAN (Bagong Alyansang Makabayan) et al., v.. Executive Secretary Ronaldo Zamora, et al.,
despite not having been submitted to the U.S. Senate for advice and consent the VFA
nevertheless imposes a binding legal obligation on the United States. To that effect “notice can
be taken of the internationally known practice of the United States. . .” of concluding sole-
executive agreements and notifying Congress of such under the Case-Zablocki Act.22 Second,
the Court concluded that the purpose of the VFA was to implement the Mutual Defense Treaty of
1951, which was approved after the advice and with the consent of the U.S. Senate. The Court
reasoned that, as an implementation agreement, only notification of the VFA’s conclusion to the
U.S. Congress under Case-Zablocki Act was required for compliance with Section 25 of the
1987 Constitution.23
The Court also addressed the claim that the U.S. Supreme Court decision in Medellin had
altered the constitutionality of the VFA. In Medellin the U.S. Supreme Court held that, absent
language within a treaty to the effect that it was self-executing or Congressional legislation
implementing the accord, international agreements entered into by the United States could not be
enforced as part of its domestic law.24 Petitioners argued that because the VFA was part of the
domestic law of the Philippines Medellin had rendered the VFA unequally binding on the two
Contracting States and violated Section 25.
The majority rejected the argument, holding that the VFA was both self-executing (since
“the parties intended its provision to be enforceable, precisely because the Agreement is intended
to carry out obligations and undertakings under the RP-US Mutual Defense Treaty”)25 and was
subject to implementing legislation (vis-à-vis notification to the U.S. Congress under the Case-
Zablocki Act, “inasmuch as it is the very purpose and intent of the US Congress that executive
agreements registered under this Act within 60 days from their ratification be immediately
implemented.”).26 Moreover, although the Court had previously recognized that the purpose of
Section 25 was to ensure that a bilateral agreement with the U.S. covering military matters was
‘equally binding’, the majority held that absolute ‘alignment and parity’ regarding the
enforceability of international obligations was not required by the Constitution. Instead,

Sup. Ct. Philippines (October 10, 2000) available at

http://sc.judiciary.gov.ph/jurisprudence/2000/oct2000/138570.htm
22
Id. at para. 25.
23
Id. at paras. 26-31.
24
Id. at para. 41.
25
Id. at para. 44.
26
Id. at para. 45.
formulaic mutual acknowledgement of an agreement’s ‘treaty’ status could suffice.27 The U.S.
Supreme Court in Weinberger having concluded that executive agreements are ‘treaties’ within
the meaning of that word, the majority was satisfied that the obligations imposed by Section 25
had been met.
The opinion then briefly addressed the claims that the provision of the VFA partially
immunizing U.S. personnel from the jurisdiction of local courts violated Article VIII, Section
5(5) of the 1987 Constitution, which establishes the exclusive authority of the Supreme Court in
adopting rules of procedure for all courts in the Philippines, and that the transfer of Smith to U.S.
custody contravenes the Constitution’s Article III, Section 1 equal protection guarantees.28 With
respect to both the Court noted that constitutional protections are not without limit, and that in
the present case general principles of international law, incorporated into the Constitution at
Article 2 Section 2, constituted “a substantial basis for a different treatment of a member of a
foreign military”.29 Because international law provides that “the laws (including the rules of
procedure) of one State do not extend or apply – except to the extent agreed upon – to subjects of
another State”30, the Constitution can accommodate Article V of the VFA and the transfer of
Smith to U.S. custody.
Having acknowledged the constitutionality of the VFA, of its own volition the majority
weighed in on the legality of the Romulo-Kenney Agreements. Recalling that Article V of the
Agreement calls for “[t]he confinement or detention by Philippine authorities [. . .]” the Court
concluded that detention by U.S. authorities was not in accord with the VFA. It was therefore
ordered that the Secretary of Foreign Affairs “negotiate with the United States representatives for
[an] appropriate agreement on detention facilities” consistent with Article V.31
The Dissenting Opinions
Chief Justice Puno and Associate Justice Carpio, joined by Associate Justices Alicia
Austria-Martinez and Conchita Carpio-Morales, drafted separate dissents in which they strongly
condemned the majority’s analysis of Medellin’s impact on the VFA. Justice Carpio’s
impassioned dissent begins by describing what is at stake in Nicolas:

27
Id. at para. 50.
28
Id. at paras. 32-33.
29
Id. at para. 34.
30
Id. at para. 36.
31
Id. at para. 54.
 In short, the Philippine Constitution bars the efficacy of such a
treaty that is enforceable as domestic law only in the Philippines
but unenforceable as domestic law in the other contracting State.
The Philippines is a sovereign and independent State. It is no
longer a colony of the United States. This Court should not
countenance an unequal treaty that is not only contrary to the
express mandate of the Philippine Constitution, but also an affront
to the sovereignty, dignity and independence of the Philippine
State.32

Although Justice Carpio joined the Court in 2001 and did not participate in Bayan, he
hinted that he regards it as having been correctly decided when it was handed down. However,
he also makes it clear that Medellin should be treated as a “supervening event” that has
manifestly altered the legality of the VFA as well as the Mutual Defense Treaty.33 After
analyzing the framework for domestic enforceability established by Medellin, he concluded that
both bilateral agreements are neither self-executing nor had were subject to implementing
legislation. With regard to the former, he noted that the text of the VFA and MDT provides no
hint of “intention that [they] be ‘self-executing’”.34 Respecting the latter, he argued that if the
Vienna Convention on Consular Relations at issue in Medellin was not regarded by the U.S.
Supreme Court as having domestic effect, then certainly the MDT, which contains only the usual
“ratification and entry into force provision found in treaties”, also does not. Similarly, the VFA
certainly should not be regarded as subject to congressional implementing legislation, since;
[n]otification under the Case-Zablocki Act is obviously far less
significant legally than ratification by the U.S. Senate of a treaty.
If a ratified treaty does not automatically become part of U.S.
domestic law under Medellin, with more reason a merely notified
executive agreement does not form part of U.S. domestic law.35

Finally, Justice Carpio broke with the majority and pointed out that the travaux
preparatoirs of Article XVIII Section 25 make it clear that the purpose of the provision was to
ensure that any agreement involving foreign troops on Filipino soil is equally legally binding in

32
Carpio, J. dissenting at para. 4, available at
http://sc.judiciary.gov.ph/jurisprudence/2009/feb2009/175888_176051_176222_carpio.htm
33
Id. at para. 1.
34
Id. at para. 12. Justice Carpio points out that the MDT only contains the usual “ ratification and entry into force
provisions found in treaties”. Although he does not explicitly do so, it may be inferred that this argument extends to
the VFA as well. Id. at para. 28.
35
Id. at para. 26.
absolute terms on both Contracting States and that it takes the form of a treaty.36 As an
international obligation embodied “merely [in] an executive agreement”37 the VFA falls short of
the constitutional threshold. Interestingly, although he argues throughout his dissent that the
MDT is unconstitutional, in his conclusion Justice Carpio confines himself to affirming the
unconstitutionality of the VFA and noting that he would have ordered Smith transferred from the
U.S. embassy to the New Bilibid Prison, pending final resolution of his appeal.38
Chief Justice Puno, who also dissented in Bayan, was largely in agreement with Justice
Carpio. His dissent reasserts his longstanding belief that Bayan was wrongly decided and
reflects the strict interpretation he would have applied to Article XVIII Section 25,39 his
dissatisfaction with the “asymmetry in the legal treatment” the VFA embodied in 2000 and
continues to perpetuate post-Medellin,40 and his belief that the VFA fulfilled neither requirement
for domestic enforcement imposed by the U.S. Supreme Court.41 His opinion is noteworthy for
its specific examination of Medellin’s impact on the U.S. President’s power to conclude
domestically enforceable sole-executive agreements. Justice Puno concluded that;
In fine, the U.S. President’s authority to enter into treaties that are
enforceable within its domestic sphere was severely limited by
Medellin. In Medellin [. . .], the Supreme Court held that “the
president’s authority to act, as with the exercise of any
governmental power, must stem from an act of Congress or from
the Constitution itself.”42

Upon comparison of the Presidential Memorandum at issue in Medellin and the VFA,
Justice Puno reasoned that;
[i]n sum, the non-self-executing character of the [VFA and MPT]
not only refutes the notion that the ratifying parties vest the
President with authority to unilaterally make treaty obligations
binding on domestic courts, but also prohibits him from doing so.
The responsibility to transform an international obligation arising
from a non-self-executing treaty into domestic law falls on
Congress, not the Executive.43

36
Id. at paras. 6-11.
37
Id. at para. 26.
38
Id. at para. 31.
39
Puno, C.J., supra note 15, at paras. 35-36.
40
Id. at para. 52.
41
Id. at paras. 31, 42 & 51.
42
Id. at para. 26.
43
Id. at para. 30.
Conclusion
Several aspects of the majority and dissenting opinions are striking and worthy of
comment. First, it is surprising that the majority decided to sidestep the issue of the domestic
legal effects of a U.S. Presidential executive agreement and declare that the Filipino Constitution
requires equality but not parity in the enforceability of international obligations in light of
Medellin’s recognition of a limited Presidential authority to conclude sole-executive agreements
with domestic legal effect. In his majority opinion in Medellin U.S. Supreme Court Chief Justice
Roberts acknowledged that the President has a “narrow and strictly limited authority to settle
international claims disputes pursuant to an executive agreement.” This power is based on “a
history of congressional acquiescence [that] can be treated as a “gloss on ‘Executive Power’
vested in the President by §1 of Art. II.”44 Justice Puno ignores this language completely, and
the majority in Nicolas could have used it to distinguish Medellin on the grounds that the
Presidential Memorandum at issue in the U.S. case represented a unique attempt by the
Executive branch to convert an international obligation approved by the U.S. Congress into
domestically binding law absent congressional authorization to do so,45 whereas the VFA is an
arrangement of a type embodied by an executive agreement as a matter of historical practice.46
Medellin may also be distinguished as concerning the power of the President to displace State
criminal law,47 whereas the VFA is an agreement more closely tied to the Presidents powers as
Commander-in-Chief, as it largely covers jurisdiction of U.S. military courts over U.S. personnel
in the Philippines.48 Thus the separation-of-powers issues at stake in Medellin are not present
with respect to the VFA, and the President’s authority to engage in executive agreements that
become binding domestic law likely remains unaffected by the outcome of Medellin.
A second startling aspect of the majority opinion is its decision to regard the VFA as
implemented through notification under the Case-Zablocki Act. This portion of the opinion is

44 Medellin, 128 S. Ct. at 35 (citing Dames & Moore v. Regan, 453 U. S. 654, 686).
45
Id. at 36 citing Brief for United States as Amicus Curiae in Sanchez-Llamas, O. T. 2005, Nos. 05–51 and 04–
10566, pp. 29–30 (noting that the Presidential Memorandum at issue was described by the Executive Branch itself
as an “uncprecendent action”).
46
CRS Report for Congress, Congressional Oversight and Related Issues Concerning the Prospective Security
Agreement Between the United States and Iraq (May 28, 2008) at 21 fn89 available at
http://assets.opencrs.com/rpts/RL34362_20080528.pdf (noting that “[t]he only SOFA agreement to which the
United States is a party that was concluded as a treaty is the North Atlantic Treaty Status of Forces Agreement
(NATO SOFA), 4 U.S.T. 1792, entered into force August 23, 1953.”).
47
Medellin, 128 S. Ct., at 33.
48
VFA, supra note 9, at Art.V(6).
conspicuous for the lack of jurisprudence justifying the conflation of notification and
implementation. It is, however, not nearly as unexpected as the majority’s failure to properly
apply Medellin to the treaty. Although Medellin is generally regarded as providing a less-than-
clear framework for determining when treaties are self-executing and which are not,49 the U.S.
Supreme Court did at a minimum clarify that the intent of signatory parties and language of the
agreement must be examined.50 Not only did the Court in Nicolas fail to examine either element,
but it (along with Justice’s Puno and Carpio) ignored language in Medellin that would have
abrogated its need to do so; the U.S. Supreme Court at one point suggests that, with respect to
sole-executive agreements that self-execution may not be relevant in terms of determining the
domestic effect of an agreement, since there was leeway for the Supreme Court to find that
“congressional acquiescence [alone] could support the President’s asserted authority to create
domestic law pursuant to a non-self executing treaty” 51
Till now, scholars have discussed Medellin in terms of its implications for the
development of domestic treaty law while paying comparatively little attention to its practical
effects on U.S. relations with its allies. Nicolas is the first challenge to a bilateral agreement
with the U.S. brought under Medellin and heard by a foreign court, and though the arrangement
at issue emerged intact this time, the serious shortcomings of the majority and dissenting

49
See e.g., Ronald A. Brand, Treaties and the Separation of Powers in the United States: A Reassessment after
Medellin v. Texas, 47 DUNESQUE L. REV. (forthcoming 2009) available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1319818 (“What it does take for a treaty provision to be self-
executing is now less clear than prior to the Medellín decision, with some of the language of the majority opinion
squarely requiring explicit language of self-implementation in a treaty, and other language providing a contrary
statement that a treaty provision may be self-executing without specific statement to that effect.”). See also Frederic
L. Kirgis, International Law in the American Courts – The United States Supreme Court Declines to Enforce the
I.C.J.’s Avena Judgment Relating to a U.S. Obligation under the Convention on Consular Relations, 9 GERMAN L.
J. (2008) available at http://www.germanlawjournal.com/print.php?id=958; Luke A. McLaurin, Medellín v. Texas
and the Doctrine of Non-Self-Executing Treaties 10(11) MICHIGAN INT’L LAWYER 1, 4 (2008);
50
Incidentally, this means that Chief Justice Puno’s analysis of Medellin is also incorrect inasmuch as he asserts that
the “[U.S. Supreme] Court adopted a textual approach in determining whether the relevant treaty sources are self-
executory.” In fact, “[t]he Medellín opinion states in several places that courts should look to the intentions of the
U.S. treaty-makers to determine whether a treaty is self-executing.” Ingrid Weurth, Medellin: The New, New
Formalism?, 13(1) LEWIS & CLARK L. REV. 1, 14 (2009) citing inter alia Medellín, 128 S. Ct. at 1366 (“Our cases
simply require courts to decide whether a treaty’s terms reflect a determination by the President who negotiated it
and the Senate that confirmed it that the treaty has domestic effect.”); id. at 1367 (“Nothing . . . suggests that the
President or Senate intended the improbable result of giving the judgments of an international tribunal a higher
status than that enjoyed by ‘many of our most fundamental constitutional protections.’” (quoting Sanchez-Llamas v.
Oregon, 548 U.S. 331, 360 (2006)); id. at 1358 (“Article 94 . . . [does not] indicate that the Senate that ratified the
U.N. charter intended to vest ICJ decisions with immediate legal effect in domestic courts.”); id. at 1361 (“The
Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable
federal law.”). See also, McLaurin, supra note 49.
51
Medellin, 128 S. Ct. at 33.
opinions hint at a future of sole-executive agreements with dubious enforceability abroad, even
when those agreements can reasonably be construed as consistent with Medellin. As a potent
reminder that the effects of Medellin on U.S. relations have only just begun to manifest, Nicolas
has already incited Executive action,52 and may finally inspire Congressional action clarifying
the domestic obligations of the U.S. vis-à-vis its international obligations as embodied in
thousands of bilateral agreements as well.

52
On March 13, 2009 U.S. President Barak Obama called Filipino President Gloria Macapagal-Arroyo to reaffirm
his commitment to the VFA. Obama calls Arroyo on VFA, PHILIPINE DAILY ENQUIRER, March 15, 2008,
available at http://www.asianewsnet.net/news.php?sec=1&id=4530