AM­BAS­SADORS’ COR­NER

Manila Times - - Opinion - Ser­vanda pacta­sunt

PEND­ING be­fore the Supreme Court are pe­ti­tions to de­clare in­valid the Philip­pines’ with­drawal from mem­ber­ship in the In­ter­na­tional Crim­i­nal Court (ICC) be­cause the de­ci­sion to with­draw was made with­out the ap­proval of the Se­nate.

The In­te­grated Bar of the Philip­pines is one of the pe­ti­tion­ers be­cause of its laud­able ad­vo­cacy for the de­fense of hu­man rights. This, how­ever, is a le­gal ques­tion in­volv­ing the con­sti­tu­tional prin­ci­ple of sep­a­ra­tion of pow­ers and should not be treated as a hu­man rights is­sue.

DFA prac­tice

The Con­sti­tu­tion pro­vides that, “No treaty or in­ter­na­tional agree­ment shall be valid and ef­fec­tive un­less con­curred in by at least two- thirds of all the mem­bers of the Se­nate.”

Be­cause the pro­vi­sion speaks only of

of treaties, the De­part­ment of For­eign Af­fairs ( DFA) fol­lows a pro­ce­dure of re­fer­ring to the Se­nate all treaties

- sul­ta­tion with the Se­nate ends af­ter the Se­nate has given its con­cur­rence. There is no lan­guage in the Con­sti­tu­tion re­quir­ing Se­nate con­cur­rence with re­spect to with­drawal from treaties.

This prac­tice of the DFA is based on the prin­ci­ple of sep­a­ra­tion of pow­ers and that treaty-mak­ing is an ex­ec­u­tive power and part of the power of the Pres­i­dent to con­duct for­eign af­fairs. On the other hand, the re­quire­ment of Se­nate

is part of the sys­tem of checks and bal­ances in the Con­sti­tu­tion.

Once the treaty en­ters into force for the Philip­pines, its im­ple­men­ta­tion, in­clud­ing the terms for its ter­mi­na­tion, de­pends on the pro­vi­sions of the treaty it­self and the Law of Treaties, to which the Philip­pines is also a party. Thus, the Se­nate has al­ready given its prior ap­proval to the terms and the man­ner for the with­drawal from the Rome Statute, which is one of the ways by which the Philip­pines may ter­mi­nate this treaty, which cre­ated the ICC.

Ac­cord­ing to the Law of Treaties, whose

in­ter­na­tional law, the ter­mi­na­tion of a treaty or with­drawal of a party may take place be­cause of a va­ri­ety of cir­cum­stances, in­clud­ing a ma­te­rial breach of a treaty, su­per­ven­ing im­pos­si­bil­ity of per­for­mance, fun­da­men­tal change of cir­cum­stances, sev­er­ance of diplo­matic re­la­tions, emer­gence of a new peremp­tory norm of in­ter­na­tional law, among many oth­ers.

The DFA is the in­sti­tu­tion in the gov­ern­ment that has the ex­per­tise and the re­sources to make a dili­gent study re­gard­ing these mat­ters. With its si­lence on re­quir­ing Se­nate con­cur­rence for with­drawal from treaties, the Con­sti­tu­tion has opted not to im­pose a bur­den on the Se­nate to con­sider the wis­dom of with­drawal. The Con­sti­tu­tion has pre­ferred that the na­tion speak with one voice through the Pres­i­dent rather than through the dif­fer­ent voices of Congress on the con­duct of with­drawal. Ide­ally, the Pres­i­dent should be able to act, af­ter a dili­gent study of the pos­si­ble com­plex treaty is­sues in­volv­ing the ter­mi­na­tion of a treaty, and not be ham­pered by the veto power of the Se­nate.

Se­nate’s po­si­tion

It was re­ported in me­dia that dur­ing the present 17th Congress, the Se­nate adopted the prac­tice of im­pos­ing the con­di­tion that the Pres­i­dent may not with­draw from a treaty with­out its con­cur­rence, start­ing with its ap­proval of the Asian In­fra­struc­ture In­vest­ment Bank agree­ment. How­ever, the Se­nate im­posed no such con­di­tion when it con­curred in rat­i­fy­ing the Rome Statute in 2011 dur­ing the time of Pres­i­dent Benigno Aquino 3rd. Some

Se­nate prac­tice may be con­strued as an ad­mis­sion that the Con­sti­tu­tion does not re­quire Se­nate ap­proval for Philip­pine with­drawal from its treaties.

With re­spect to the Rome Statute, some 14 sen­a­tors signed Se­nate Res­o­lu­tion 289 in Fe­bru­ary 2017, when Pres­i­dent Ro­drigo Roa Duterte de­clared his in­ten­tion to scrap the Vis­it­ing Forces Agree­ment and to with­draw from the In­ter­na­tional Crim­i­nal Court. The res­o­lu­tion de­clared: “A treaty

Pres­i­dent and con­curred in by the Se­nate be­comes part of the law of the land and may not be un­done with­out the shared power that put it into ef­fect.”

This Se­nate res­o­lu­tion was in­tended to have retroac­tive ef­fect but it was not put

po­si­tion of the Se­nate. This has avoided a con­fronta­tion with the Pres­i­dent when the DFA sent the no­tice of with­drawal from the Rome Statue in ac­cor­dance with the pro­ce­dure stated in the treaty.

Supreme Court as ar­biter

Some sen­a­tors have ad­mit­ted that the cur­rent prac­tice of the Se­nate giv­ing its

sub­ject to re­quir­ing Se­nate ap­proval of with­drawal from the treaty, could be ques­tioned be­fore the Supreme Court. Un­der this prac­tice, a mi­nor­ity of sen­a­tors may block the Philip­pines’ with­drawal from a treaty.

Since the Con­sti­tu­tion is silent on the mat­ter of Se­nate con­cur­rence on with­drawal from treaties, the pe­ti­tion­ers

in­ter­pre­ta­tion of cer­tain pro­vi­sions of the Con­sti­tu­tion and de­duc­tive rea­son­ing based on the per­ceived sim­i­lar­ity be­tween a law and a treaty.

of the Rome Statute by the Pres­i­dent was con­curred in by the Se­nate, with­drawal, as a con­sti­tu­tional mat­ter, re­quires a sim­i­lar con­cur­rence. On the other hand, un­der the Con­sti­tu­tion, the Pres­i­dent nom­i­nates, and with the con­sent of the Com­mis­sion on Ap­point­ments, ap­points the heads of ex­ec­u­tive de­part­ments and am­bas­sadors but the Pres­i­dent has ex­er­cised the power to dis­miss them with­out con­sult­ing Congress.

An­other ar­gu­ment pre­sented is that, while the con­duct of for­eign af­fairs is a func­tion of the ex­ec­u­tive branch, a treaty needs Se­nate ac­tion when it en­ters into force in the Philip­pines be­cause it has the same bind­ing ef­fect as a statute. It is ar­gued that al­low­ing the Se­nate to rat­ify the Philip­pines’ with­drawal from the ICC “is not a ques­tion of di­lut­ing the pow­ers of the Ex­ec­u­tive, but of see­ing to the non-di­lu­tion of leg­isla­tive power

treaty-mak­ing or treaty-de­nun­ci­a­tion.”

Treaty-mak­ing, treaty­de­nun­ci­a­tion

How­ever, as stated above, the Se­nate does not ex­er­cise in­her­ent leg­isla­tive

of treaties. Thus, this power of treaty­mak­ing and treaty-de­nun­ci­a­tion should be ex­pressly del­e­gated and con­se­quently one can­not speak of di­lu­tion of the leg­isla­tive power. The treaty has the bind­ing ef­fect of a statute be­cause of the con­sti­tu­tional pro­vi­sions on treaty-mak­ing and that “the Philip­pines ac­cepts the gen­er­ally ac­cepted prin­ci­ples of in­ter­na­tional law as part of the law of the land.” With­out these con­sti­tu­tional pro­vi­sions, the treaty would have to be passed into a law by leg­isla­tive process to have the force of a statute, un­der the prac­tice in the Euro­pean con­ti­nent.

A corol­lary ar­gu­ment ad­vanced to sup­port the the­sis of the pe­ti­tion­ers is that the Pres­i­dent would be granted broad law­mak­ing pow­ers if the Se­nate did not have the power to with­hold its con­sent on his power to with­draw from a treaty. If the Pres­i­dent alone en­joyed the un­fet­tered pre­rog­a­tive to en­ter into treaties, he could ef­fec­tively al­ter the Philip­pine le­gal sys­tem and its leg­isla­tive frame­work with­out the par­tic­i­pa­tion of the leg­isla­tive branch. It is ar­gued that the same thing would be true in re­spect of the de­nun­ci­a­tion or with­drawal from mem­ber­ship in a treaty or­ga­ni­za­tion.

As il­lus­tra­tion, it is ar­gued that the Philip­pines would ob­vi­ously go through an over­haul of its le­gal sys­tem were the Philip­pines to de­nounce the UN Con­ven­tion on the Law of the Sea (UNCLOS)

ter­ri­to­rial sea and its claims to sov­er­eign rights would be se­verely al­tered.

But the over­haul of the le­gal sys­tem would not au­to­mat­i­cally take place. The de­nun­ci­a­tion of a treaty is not the same as the re­peal of a law. If the Philip­pines were to de­nounce the UNCLOS, this would not au­to­mat­i­cally re­peal the laws

passed by the Philip­pines to en­sure that its laws are con­sis­tent with the con­ven­tion like the Archipelagic Base­lines Law. There would be a need to re­peal or amend them by new leg­is­la­tion if this was de­sired.

More­over, the pro­vi­sions of the UNCLOS would not be al­tered by the de­nun­ci­a­tion. The rules of the con­ven­tion on the sov­er­eign rights and obli­ga­tions of na­tions to the dif­fer­ent mar­itime zones would re­main the same. The Philip­pines’ pri­mary rights and obli­ga­tions to its mar­itime zones could be mod­i­fied only with the con­sent of the other par­ties af­fected.

Be­tween a treaty and a law

A vari­ant of the above ar­gu­ments is that the Rome Statute is a form of treaty that can­not be re­pealed with­out the ap­proval of Congress. The Con­sti­tu­tion ex­pressly pro­vides that the Pres­i­dent has the duty to faith­fully ex­e­cute the laws. Since the Rome Statute has the same sta­tus as a law, the Pres­i­dent has also the con­sti­tu­tional duty to faith­fully ex­e­cute this treaty. There­fore, it is sug­gested that this duty pre­vents the Pres­i­dent from ab­ro­gat­ing the treaty him­self and that if ab­ro­ga­tion is de­sired, the proper pro­ce­dure would be for Congress to be the one to ab­ro­gate the treaty by pass­ing a law, as a treaty can be re­pealed by a sub­se­quent law by a sim­ple ma­jor­ity in both Houses of Congress.

While the Pres­i­dent has the duty to faith­fully ex­e­cute the laws of the land, in­clud­ing treaties en­tered into, the Philip­pines as a con­tract­ing party to a treaty al­ways has the right to ter­mi­nate or de­nounce the treaty in ac­cor­dance with its terms. The power to ter­mi­nate or de­nounce a treaty is an ex­ec­u­tive power.

The rem­edy of ab­ro­gat­ing a treaty by pass­ing a sub­se­quent law may not sat­isfy the re­quire­ments of the treaty for its ter­mi­na­tion or de­nun­ci­a­tion. It is prefer­able that the Philip­pines should fol­low the rule of

(agree­ments must be kept) and de­nounce the treaty in ac­cor­dance with its pro­vi­sions through a no­tice of with­drawal by the Ex­ec­u­tive.

It is true that un­der Philip­pine

be­tween a treaty and a law, the rule is that whichever is later pre­vails. But this does not have the same ef­fect of the later law re­peal­ing the prior treaty be­cause the other con­tract­ing par­ties and pri­vate per­sons may have vested rights. The pro­vi­sions of the treaty it­self would de­ter­mine the sta­tus of the treaty and the rights of the par­ties un­der in­ter­na­tional law.

We await the Supreme Court’s de­ci­sion on this le­gal ques­tion in­volv­ing the sep­a­ra­tion of pow­ers. Supreme Court As­so­ci­ate Jus­tice Mario Vic­tor Leo­nen has cau­tioned that, “The Court may not want to be­come the ju­di­cial dic­ta­tor of this coun­try over ex­tend­ing its power to realms which might be po­lit­i­cal in na­ture rather than le­gal.”

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