EN BANC

G.R. NO. 175888 - SUZETTE NICOLAS Y SOMBILON v. ALBERTO ROMULO, ET AL.

G.R. NO. 176051 - JOVITO R. SALONGA ET AL. v. DANIEL SMITH, ET AL.

G.R. NO. 176222 - BAGONG ALYANSANG MAKABAYAN (BAYAN), ET AL. v. PRESIDENT GLORIA MACAPAGAL-ARROYO, ET AL.

Promulgated: February 11, 2009

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DISSENTING OPINION

PUNO, C.J.:

The question of the constitutionality of the Visiting Forces Agreement (VFA) comes back to this Court as the custody over Lance Corporal Daniel J. Smith, a member of the US Armed Forces found guilty of rape by the Regional Trial Court (RTC) of Makati, is put at issue in the case at bar pending appeal of his conviction.

I strongly dissented in the case of Bayan v. Zamora[1] proffering the view that the VFA falls short of the requirement set by Section 25, Article XVIII of the 1987 Constitution stating that the agreement allowing the presence of foreign military troops in the Philippines must be “recognized as a treaty by the other contracting state.”[2] The circumstances present in the case at bar and recent case law in the United States’ policy on treaty enforcement further expose the anomalous asymmetry in the legal treatment of the VFA by the United States (U.S.) as opposed to the Republic of the Philippines (RP) which I denounced in Bayan v. Zamora. This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it.

The present petitions challenge the transfer of custody of Daniel Smith from the Philippine government (under the Bureau of Jail Management and Penology) to the United States authorities.

On December 4, 2006, Respondent Daniel Smith was convicted of rape by RTC Makati Branch 139.[3] Smith’s temporary confinement at the Makati City Jail was subsequently ordered by the trial court pending negotiations between the U.S. and RP governments. Respondent Smith filed a motion for reconsideration on December 5, 2006.[4]

On December 8, 2006, the public prosecutor filed a manifestation before the trial court submitting an agreement signed on the same day by Ambassador Kristie Kenney and Chief State Prosecutor Jovencito Zuno. The agreement provided for the transfer of custody over Smith from the Philippine government to the U.S. Embassy. A similar agreement was later submitted, but this time executed between the U.S. Ambassador and Secretary of Justice Raul Gonzalez and Secretary of Foreign Affairs Alberto Romulo.[5]

On December 12, 2006, the trial court denied Respondent Smith’s motion for reconsideration.[6] He filed a petition for certiorari with prayer for Temporary Restraining Order before the Court of Appeals on December 14, 2006.[7]

A petition in intervention and a series of manifestations[8] were filed by the Department of Foreign Affairs, all appending copies of the Romulo-Kenney agreement. The Solicitor General adopted the position of the Department of Foreign Affairs in a manifestation filed on December 28, 2006.[9] The next day, Smith’s custody was turned over to the U.S. authorities and Smith was physically transferred to the U.S. Embassy.[10]

On January 3, 2007, the Court of Appeals[11] issued a decision holding as moot the petition filed before it by respondent Smith.[12]

Hence, the present petitions, which assail anew the non-recognition by the U.S. of the VFA as a treaty.

Respondent Sergio Apostol and the Solicitor General raise the defense of stare decisis[13] and res judicata[14] as against the petitioners’ attempt to assail the validity of the VFA, citing Bayan v. Zamora and Lim v. Executive Secretary.

An examination of Bayan v. Zamora, which upheld the validity of the VFA, is necessary in light of a recent change in U.S. policy on treaty enforcement. Of significance is the case of Medellin v. Texas,[15] where it was held by the U.S. Supreme Court that while treaties entered into by the President with the concurrence of the Senate are binding international commitments, they are not domestic law unless Congress enacts implementing legislation or unless the treaty itself is "self-executing."[16]

An Examination of Medellin v. Texas

In Medellin v. Texas, Jose Ernesto Medellin (Medellin), a Mexican national, was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers. His conviction and sentence were affirmed on appeal.

Medellin then filed an application for post-conviction relief and claimed that the Vienna Convention on Consular Relations (Vienna Convention) accorded him the right to notify the Mexican consulate of his detention; and because the local law enforcement officers failed to inform him of this right, he prayed for the grant of a new trial.

The trial court, as affirmed by the Texas Court of Criminal Appeals, rejected the Vienna Convention claim. It was ruled that Medellin failed to show that any non-notification of the Mexican authorities impacted on the validity of his conviction or punishment. Medellin then filed his first habeas corpus petition in the Federal District Court, which also rejected his petition. It held that Medellin failed to show prejudice arising from the Vienna Convention.

While Medellin’s petition was pending, the International Court of Justice (ICJ) issued its decision in the Case Concerning Avena and Other Mexican Nationals (Avena). The ICJ held that the U.S. violated Article 36(1)(b) of the Vienna Convention by failing to inform 51 named Mexican nationals, including Medellin, of their Vienna Convention rights. The ICJ ruled that those named individuals were entitled to a review and reconsideration of their U.S. state court convictions and sentences regardless of their failure to comply with generally applicable state rules governing challenges to criminal convictions.

In Sanchez-Llamas v. Oregon[17] -- issued after Avena but involving individuals who were not named in the Avena judgment, contrary to the ICJ’s determination -- the U.S. Federal Supreme Court held that the Vienna Convention did not preclude the application of state default rules. The U.S. President, George W. Bush, then issued a Memorandum (President’s Memorandum) stating that the United States would discharge its international obligations under Avena by having State courts give effect to the decision.

Relying on Avena and the President’s Memorandum, Medellin filed a second Texas state-court habeas corpus application, challenging his state capital murder conviction and death sentence on the ground that he had not been informed of his Vienna Convention rights. The Texas Court of Criminal Appeals dismissed Medellin’s application as an abuse of the writ, since under Texas law, a petition for habeas corpus may not be filed successively, and neither Avena nor the President’s Memorandum was binding federal law that could displace the State’s limitations on filing successive habeas applications.

Medellin repaired to the U.S. Supreme Court. In his petition, Medellin contends that the Optional Protocol, the United Nations Charter, and the ICJ Statute supplied the “relevant obligation”[18] to give the Avena judgment binding effect in the domestic courts of the United States.

The Supreme Court of the United States ruled that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas corpus petitions. It held that while an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing." It further held that decisions of the ICJ are not binding domestic law; and that, absent an act of Congress or Constitutional authority, the U.S. President lacks the power to enforce international treaties or decisions of the ICJ.

Requirements for Domestic Enforceability of Treaties in the U.S.

The new ruling is clear-cut: “while a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis.”[19]

The Avena judgment creates an international law obligation on the part of the United States, but it is not automatically binding domestic law because none of the relevant treaty sources—the Optional Protocol, the U.N. Charter, or the ICJ Statute—creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted.

The Court adopted a textual approach in determining whether the relevant treaty sources are self-executory. The obligation to comply with ICJ judgments is derived from Article 94 of the U.N. Charter, which provides that “each x x x Member x x x undertakes to comply with the [ICJ’s decision x x x in any case to which it is a party.” The phrase “undertakes to comply” is simply a commitment by member states to take future action through their political branches. The language does not indicate that the Senate, in ratifying the Optional Protocol, intended to vest ICJ decisions with immediate effect in domestic courts.

This is buttressed by Article 94(2) of the U.N. Charter, which provides that:

If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.[20]

Article 94 confirms that the U.N. Charter does not contemplate the automatic enforceability of ICJ decisions in domestic courts. The sole remedy for non-compliance is referral to the U.N. Security Council by an aggrieved state. Since the remedy was non-judicial, but diplomatic, the U.S. Supreme Court concluded that ICJ judgments were not meant to be enforceable in domestic courts.[21] The reasons were, first, the Security Council deems as necessary the issuance of a recommendation or measure to effectuate the judgment; and second, the President and the Senate were undoubtedly aware that the U.S. retained the unqualified right to veto any Security Council resolution.

The interpretative or textual approach in determining whether a treaty is self-executory has previously been used by the U.S. Supreme Court. The Court cites Foster v. Neilson,[22] where the treaty in question was first determined by the Court to be non-self-executing; after four years, another claim was made based on the same treaty and the Supreme Court concluded that it was self-executory, based on the wording of a Spanish translation, which was for the first time brought to the attention of the Court. The self-executory nature was reflected in the words: “by force of the instrument itself.”[23] General principles of interpretation would confirm that any intent of the ratifying parties to the relevant treaties to give ICJ judgments binding effect in their domestic courts should be clearly stated in the treaty.

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 United States posited the theory that the President’s constitutional role uniquely qualifies him to resolve the sensitive foreign policy decisions that bear on compliance with an ICJ decision. In said case, the U.S. President, through the issuance of the Memorandum, sought to vindicate the United States interest in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. Though these interests were compelling, 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.”[24]

The United States contended that the President’s Memorandum was grounded on the first category of the Youngstown framework,[25] i.e., the President has acted pursuant to an express or implied authorization by Congress, and his authority is at its maximum. In rejecting the argument, the U.S. Supreme Court held:

The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation into domestic law falls to Congress. x x x As this court has explained, when treaty stipulations are “not self-executing they can only be enforced pursuant to legislation to carry them into effect.” x x x Moreover, “[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.” x x x

The requirement that Congress, rather than the President, implement a non-self executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. The Constitution vests the President with the authority to “make” a treaty. x x x If the Executive determines that a treaty should have domestic effect of its own force, the determination may be implemented “in [m]aking” the treaty, by ensuring that it contains language plainly providing for domestic enforceability. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote, consistent with all other constitutional restraints.[26]

Clearly, the President’s Memorandum was not enough reason to support the enforcement of any treaty granting Medellin a new trial because of the failure of the local enforcement officers to inform him of his right to notify the Mexican consulate of his detention. The Court categorically held that while a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it, or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis.

The U.S. Court ruled that President George W. Bush’s Memorandum, which stated that the ICJ’s Avena decision should be given effect by domestic courts, fell within the last category of the Youngstown Framework.

In sum, the non-self-executing character of the relevant treaties 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.

Implication of Medellin v. Texas on the VFA

With Medellin, the case law is now settled that acknowledgement by the U.S. President that an agreement is a treaty, even with the concurrence of the U.S. Senate, is not sufficient to make a treaty enforceable in its domestic sphere, unless the words of the treaty itself clearly express the intention to make the treaty self-executory, or unless there is corresponding legislative enactment providing for its domestic enforceability. The VFA does not satisfy either of these requirements and cannot thus be enforced within the U.S.

I reiterate my dissent in Bayan v. Zamora that the VFA failed to meet the constitutional requirement of recognition by the U.S. as a treaty.

The 1987 Constitution provides in Sec. 25, Art. XVIII, viz.:

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. (Emphasis supplied)

Among the three constitutional requisites that must be complied with before foreign military bases, troops, or facilities can be allowed in Philippine territory, the third requirement, that any such agreement should be recognized as a treaty by the other contracting party, lies at the very heart of this case.

In Bayan v. Zamora, the majority of the Court anchored the validity of the VFA on the flabby conclusion that it was recognized as a treaty by the U.S. The Court held that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. It was held that “it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.”[27]

To justify its tortuous conclusion, the majority of the Court in Bayan v. Zamora did not accord strict meaning to the phrase, “recognized as a treaty”[28] and declared that “words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.”[29] Thus, the Court held that it was sufficient that the other contracting party accepts or acknowledges the agreement as a treaty.

In obvious error, the majority of the Court gave undue deference to the statement of the former Ambassador of the United States to the Philippines, Thomas C. Hubbard, that Senate advice and consent was not needed to consider a treaty binding on the U.S., on the premise that the President alone had the power to conclude the VFA, deriving from his responsibilities for the conduct of foreign relations and his constitutional powers as the Commander–in-Chief of the Armed Forces, to conclude that the U.S. accepted or acknowledged the agreement as a treaty. The majority then jumped to the conclusion that the U.S. recognized the VFA as a treaty, and that the constitutional requirements had been satisfied.

It can be deduced from the posture of the former US Ambassador that the VFA is an executive agreement, entered into by the President under his responsibility for the conduct of foreign relations and his constitutional powers as Commander-in-Chief of the Armed Forces. It can be further deduced that the VFA is not recognized as a treaty by the U.S., but it is akin to a sole or presidential executive agreement, which would be valid if concluded on the basis of the U.S. President’s exclusive power under the U.S. Constitution.[30] In other words, it does not fall under the category of an executive agreement entered into by the President pursuant to the authority conferred in a prior treaty because, although the VFA makes reference to the Mutual Defense Treaty in its Preamble, the Mutual Defense Treaty itself does not confer authority upon the U.S. President to enter into executive agreements in the implementation of the Treaty.[31] Neither does the VFA fall under the category of Congressional Executive Agreement, as it was not concluded by the U.S. President pursuant to Congressional authorization or enactment, nor has it been confirmed by the U.S. Congress.[32]

Prescinding from these premises, the following are the implications of the ruling in Medellin on the RP-U.S. VFA:

(1) It must be clear from the text of the VFA itself that the VFA is self-executory in order that it may be reciprocally enforced.

Medellin is straightforward in ruling that the domestic enforceability of the treaty should be reflected in the text of the treaty itself; it cannot simply be inferred from a multitude of factors, nor can it be derived from the context in which the agreement was entered into.

In Medellin, the U.S. Court ruled that the Supremacy Clause does not require Texas to enforce the ICJ judgment. The President alone cannot require Texas to comply with a non-self-executing treaty absent congressional implementation. Medellin now imposes a “clear statement requirement” of the self-executory nature of a treaty, before judgments based on that treaty could overrule state law and be enforced domestically. The Court now looks into the language of the treaty, parsing the treaty’s text to determine whether the treaty was intended to be self-executory or not. If the text of the treaty does not clearly indicate the intention of the signatories to make it executory in the domestic sphere, Congress has the responsibility to transform an international obligation arising from a non-self-executory treaty into domestic law.

An examination of the text of the VFA does not show any provision that would satisfy the “clear statement requirement” within the text of the treaty to show that the United States intended it to be reciprocally enforced in the domestic sphere. Absent such clear wording in the VFA itself that it is to be self-executory, and without the concurrence of the Senate, the VFA remains an international obligation of the U.S., but it does not have the corresponding mechanism to have the rights and obligations found therein enforced against the U.S. This is especially true when the enforcement of such rights would cause a violation of U.S. domestic laws, whether substantive or procedural.

(2) The recognition of the President through the former U.S. Ambassador that the VFA is a treaty is insufficient to make this international obligation executory in the domestic sphere.

Previously, a multi-factor, context-specific approach could be employed in judging the reciprocal enforceability of treaties. This gave the U.S. a window to regard the VFA in the same manner and with the same force as the Philippines does. In Bayan, the letter of the former United States Ambassador made the assumption that the VFA did not per se change U.S. domestic law, and as such, it did not require the concurrence of Senate. Nevertheless, it must be noted that neither do the Vienna Convention, the Optional Protocol, the ICJ Charter and the UN Charter, per se, change U.S. domestic law. But when the right of Medellin to be informed that he may notify the Mexican Consulate of his detention was not accorded to him, the U.S. courts did not grant him a new trial, despite the ruling of the ICJ in Avena, because that move would have been a violation of the domestic procedural laws of the U.S. The circumstances in Medellin show that recognition by the U.S. Executive official alone that the VFA is binding on the U.S. is ineffective in actually enforcing rights sourced from the Agreement. Congressional law is necessary to enforce these rights in the U.S.

In Bayan, the majority of this Court held that the phrase “recognized as a treaty”[33] means that the other contracting party accepts or acknowledges the agreement as a treaty. The salient question is: who has the authority to acknowledge it as a treaty? Previously, it could have been argued that the President’s recognition alone is sufficient; but all that is now changed with the categorical pronouncement in Medellin that Congress must enact statutes implementing the treaty, or the treaty itself must convey an intention that it be “self-executing” and is ratified on that basis, in order for the treaty to be enforced in the domestic sphere.

It must be noted that Article II, Section 2, Clause 2 of the U.S. Constitution provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” In the U.S., a “treaty” is only one of four types of international agreements, namely: Article II treaties, executive agreements pursuant to treaty, congressional executive agreements, and sole executive agreements.[34] The VFA is classified as a sole executive agreement.

Medellin, citing the Youngstown Framework, affirmed the tripartite scheme for evaluating executive action in this area:

First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”[35] Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.”[36] In this circumstance, Presidential authority can derive support from “congressional inertia, indifference or acquiescence.”[37] Finally, “[w]hen the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.”[38]

The VFA is an executive agreement that does not derive any support from a treaty, or prior Congressional authorization or enactment. The VFA falls within the third category of the Youngstown Framework and, thus, Presidential power is at its lowest ebb. The President’s actions cannot be sustained and enforced in the domestic sphere without congressional enactment or in the light of contrary legislation.

In Medellin, the Court also classified the Optional Protocol, the United Nations Charter, and the ICJ Statute as falling within the third and lowest category of the Youngstown Framework. The Court concluded, “given the absence of congressional legislation, that the non-self executing treaties at issue here did not ‘express[ly] or implied[ly]’ vest the President with the unilateral authority to make them self-executing. x x x x Non-self executing character of the relevant treaties not only refutes the notion that the ratifying parties vested the President with authority to unilaterally make treaty obligations binding on domestic courts, but also implicitly prohibits him from doing so. x x x His assertion of authority, insofar as it is based on the pertinent non-self-executing treaties, is therefore within Justice Jackson’s third category, not the first or even the second.”[39]

(3) Congressional act is necessary to transform the international obligations brought about by the VFA.

At best, the VFA can be considered as an international commitment by the U.S., but “the responsibility of transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.”[40] It is therefore an error to perpetuate the ruling of the majority of this Court in Bayan that it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is binding as a treaty. Medellin has held that the binding effect of a treaty as an international obligation does not automatically mean that the treaty is enforceable in the domestic sphere.

Medellin tells us that the binding effect of the treaty is mutually exclusive from the actual enforcement of the rights and obligations sourced from it.

Though the VFA attaches international obligations to the parties to the agreement, it is irrelevant in the enforcement of a non-self-executory treaty in the domestic courts of the U.S. As long as the text of the VFA does not clearly show that it is self-executory and as long as U.S. Congress has not made it enforceable in the domestic sphere, it does not have obligatory force in U.S. domestic courts.

(4) There is an “asymmetry in the legal treatment” of the VFA.

The Philippine Senate has concurred in the ratification of the VFA by a two-thirds vote of its members. The Romulo-Kenny Agreement was entered into in implementation of Article V(6) of the VFA, and the custody over Daniel Smith was transferred from the Philippine Government to the U.S. Embassy.

The ruling in Medellin is proof that the U.S. cannot yet reciprocally enforce the provisions of the VFA. It highlights the obvious disparity in treatment of the VFA on the part of the United States.

I reiterate my dissent in Bayan v. Zamora, about the clear intention of the framers of the Constitution in imposing the requirement that the agreement must be “recognized by the other state as a treaty.”[41] Recognition as a treaty by the other contracting state does not merely concern the procedure by which it is ratified, or whether or not it is concurred in by the Senate. The decisive mark to show that the agreement is considered as a treaty by the other contracting state is whether the agreement or treaty has obligatory effects and may be used as a source of rights enforceable in the domestic sphere of the other contracting party.

Medellin evidently shows us that the wording of the VFA does not bear this mark. Though considered as a treaty by the Executive, it may not create obligatory effects in the U.S.’s domestic sphere absent a clear statement in the text of the Agreement that it is self-executory, or without a congressional cct implementing it.

Regardless of whether there is concurrence by the U.S. Senate in the RP-U.S. Mutual Defense Treaty, the disparity in the legal treatment of the VFA by the U.S. is clear, considering the Medellin ruling. Indeed, even assuming there is a Senate concurrence in the RP-U.S. Mutual Defense Treaty, the VFA still cannot be given domestic effect in the United States. It is up to the Court to decide whether the terms of a treaty reflect a determination by the President who negotiated it and the Senate that confirmed it if the treaty has domestic effect.[42] To repeat, any treaty becomes enforceable within the U.S. only when the Court has determined it to be so, based on the clear terms of the treaty or through Congressional enactment to implement the provisions of the treaty.

It bears stressing that the RP government has already enforced the provisions of the VFA and has transferred custody of Lance Corporal Daniel Smith to U.S. authorities. The Philippine government has considered the VFA to be fully enforceable within our jurisdiction; yet, the U.S. does not look at the VFA as enforceable within its domestic jurisdiction. This dichotomy is evidently proscribed by the Constitution, for such dichotomy would render our sovereignty in tatters.

I vote to grant the petitions. Let the custody over Lance Corporal Daniel Smith be transferred from the U.S. Embassy in Manila to the New Bilibid Prison in Muntinlupa, pending final resolution of his appeal from conviction for the crime of rape.

REYNATO S. PUNO

Chief Justice

[1] See G.R. No. 138570, October 10, 2000, 342 SCRA 449, 497-521.

[3] Presided over by Petitioner Benjamin Pozon; rollo, p. 10, 53.

[8] Dated respectively, December 18, 2006 and December 20, 2006.

[12] Rollo, p. 14, 56. The Decision is dated January 2, 2007.

[13] Rollo, p. 238. Relying on Bayan v. Zamora.

[15] 522 U.S. [Not yet numbered for citation purposes], March 25, 2008; 128 S. Ct. 1346 (2008).

[16] The label “self-executing” pertains to the automatic domestic effect of a treaty as federal law upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress [522 U.S. (Not yet numbered for citation purposes), p. 15, March 25, 2008].

[18] 522 U.S. [Not yet numbered for citation purposes], p. 10, March 25, 2008.

[19] 522 US [Not yet numbered for citation purposes], p. 2 (Syll.), March 25, 2008; 128 S. Ct. 1346 (2008).

[21] 522 U.S. [Not yet numbered for citation purposes] at 13, March 25, 2008.

[23] United States v. Percheman, 7 Pet. 87 (1833(.

[24] Medellin v. Texas, 522 U.S. [Not yet numbered for citation purposes], p. 28, March 25, 2008; citing Youngstown Steel Tubing Co; 128 S. Ct. 1346 (2008).

[25] In Youngstown Sheet & Tube Company v. Sawyer [343 U.S. 579 (1952)] a tripartite scheme was used as a framework for evaluating executive action. First, when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum. Second, when the President acts in absence of either congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and congress have concurrent authority, or which its distribution is uncertain. In such a circumstance, Presidential authority can derive support from congressional inertia, indifference or quiescence. Finally, when the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb. [343 U.S. 579, 637-638 (1952)]

[26] Medellin v. Texas, 522 U.S. [Not yet numbered for citation purposes], pp. 30-31, March 25, 2008; 128 S. Ct. 1346 (2008).

[27] Bayan v. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 449, 488.

[39] 522 U.S. [Not yet numbered for citation purposes], pp. 31-32, March 25, 2008.

[40] 522 U.S. [Not yet numbered for citation purposes], p. 30, March 25, 2008.

[42] 522 U.S. [Not yet numbered for citation purposes], p. 29, March 25, 2008.