6 October 2018

OF LAW AND POLITICS

The Power to Withdraw from the International Criminal Court Without Senate Approval is a Constitutional Legal Question and Should Not Be treated As A Human Rights Issue  

Jaime S. Bautista

Pending before the Supreme Court are Petitions to declare invalid the Philippines’ withdrawal from membership in the International Criminal Court 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 defense of human rights.  This issue, however, is a legal issue on the constitutional system of separation of powers and should not be treated as a human rights issue.

The Philippine 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.”

DFA Practice

Because the cited provision speaks only of Senate concurrence in the ratification of treaties, the Department of Foreign Affairs follows a procedure of referring to the Senate all treaties ratified by the President, but its consultation 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 concurrence in the ratification of treaties 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 International Criminal Court.

According to the Law of Treaties, whose provisions reflect in great part Customary 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 Department of Foreign Affairs 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 a veto power of the Senate.

Senate’s Position

The Philippine media reported that, during the present 17^th Congress, the Senate has adopted the practice of imposing the condition that the President may not withdraw from the treaty without its concurrence, starting with its approval of the Asian Infrastructure Investment Bank Agreement.  However, the Senate had imposed no such condition when it concurred in ratifying the Rome Statute in 2011 during the time of President Benigno Aquino III.  Some Senators have reflected that this recent 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 fourteen 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 or international agreement ratified by the 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 to a vote and has not become the official position of the Senate.  This has avoided a confrontation with the President when the DFA sent the Notice of Withdrawal from the Rome Stature in accordance with the procedure stated in the treaty. 

Some Senators have admitted that the current practice of the Senate of giving its consent to the ratification of a treaty, 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.

Supreme Court as Arbiter

Since the Constitution is silent on the matter of Senate concurrence on withdrawal from treaties, the Petitioners have sought to fill this void through the interpretation of certain provisions of the Constitution and deductive reasoning based on the perceived similarity between a law and a treaty.

It is argued that, since the ratification 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 by sole fiat of the Executive in respect to treaty-making or treaty-denunciation.”

Treaty-making, treaty-denunciation

However, as stated above, the Senate does not exercise inherent legislative powers when it concurs in the ratification of treaties.  Thus, this power of treaty-making 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 law-making 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 and that its effects on the definition of its 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 UN Convention on the Law of the Sea, 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 UN Convention of the Law of the Sea 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 pacta sunt servanda (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 law, if there is irreconcilable conflict 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.”

28 April 2018

OF LAW AND POLITICS

China Should Abandon its Kuomintang Legacy

Jaime S. Bautista

The legal status of the Reed Bank (Recto Bank) under international law is no longer in dispute. If China threatens war to deny us our exclusive sovereign right to exploit its resources, the Philippine Government has the constitutional duty not to surrender but to defend the Reed Bank with all the forces and resistance that a proud and resourceful people can command.

Misleading To Describe Reed Bank As Disputed Area

The Philippines has exclusive sovereign rights over the Reed Bank under the provisions of the UN Convention of the Law of the Sea (UNCLOS), to which both China and the Philippines are Contracting Parties.

 The UNCLOS Arbitral Tribunal has ruled that China’s nine-dash-line (which encroached on two-thirds of the Philippines’ Exclusive Economic Zone in the West Philippine Sea) has no basis under international law. 

The Tribunal found that China’s claim to historic rights to resources within the nine-dash-line was incompatible with the Convention’s comprehensive allocation of rights of States to maritime areas.   The Tribunal declared that the text of the Convention is clear in according sovereign rights to the living and non-living resources of the exclusive economic zone to the coastal State alone.  The provisions of the Convention concerning the Continental Shelf are even more explicit that rights to the living and non-living resources pertain to the coastal State exclusively.  The Tribunal ruled that, if China had historic rights, such rights were superseded by the entry into force of the Convention.

Moreover, the Tribunal examined the historical record and concluded that China never had historic rights to the South China Sea.   China’s historical navigation and trade in the South China Sea as well as fishing beyond the territorial sea, represented an exercise of the high sea freedoms.  The exercise of freedoms permitted under international law cannot give rise to historic rights.  To give rise to historic rights, there must be evidence that China had historically sought to prohibit or restrict the exploitation of such resources by the nationals of other States and that those States had acquiesced to those restrictions.  The Tribunal found that China’s claim could not be supported.

The Tribunal also ruled that none of the high-tide features in the Spratly Islands, in their natural condition, are capable of sustaining human habitation or economic life of their own within the meaning of Article 121(3) of the Convention and, therefore, none of them are entitled to an EEZ or Continental Shelf.  Thus, China (whose mainland lies across the width of the South China Sea from the Philippines) has no basis to claim overlapping maritime zones with the Philippines.

The Arbitral Tribunal, therefore, confirmed that the Philippines is entitled to a 200 mile EEZ in the West Philippine Sea, which entirely covers the Reed Bank.

The Arbitral Tribunal found that the Reed Bank is an entirely submerged reef formation and forms part of the Philippines’ Continental Shelf.  As China had interfered with Philippine petroleum exploration at Reed Bank, the Tribunal ruled that China had violated the Philippines’ sovereign rights with respect to the non-living resources of its Continental Shelf. 

Legal Implications of Arbitral Ruling

The decision of the UNCLOS Arbitral Tribunal is final and binding on China (Art 11 of Annex VII of the Convention) and now forms part of the jurisprudence of international law. 

The arbitral decision has legal implications benefitting other ASEAN maritime countries in the South China Sea.  Vietnam, Malaysia, Brunei and Indonesia have all filed diplomatic protests against the nine-dash-line.  The Tribunal’s ruling that China has no historic rights to resources of other States within the nine-dash-line coupled with the the ruling that the high-tide features in the Spratly Islands are not entitled to an EEZ or Continental Shelf, means that China has no legal basis to claim fishing or petroleum rights in the EEZ and Continental Shelf of the ASEAN States bordering the South China Sea.  The ruling also means that Indonesia has no maritime borders with China, which removes a source of conflict between the two countries.

War Full of Risks for China

Under the Tribunal’s ruling, China has the legal obligation to respect the Philippines’ exclusive sovereign rights to explore and exploit the Reed Bank.   A threat of war to prevent the Philippines from exercising such sovereign rights would evidently be a violation of the Tribunal’s ruling.  If China goes to war, it would further constitute aggression, which the UN Charter and the Rome treaty seek to prevent.   (China, like other major military powers, has not joined the Rome treaty that seeks to punish aggression.)

President Rodrigo Duterte’s Statement that China has threatened war possibly was intended as a trial balloon to show China that there is a limit to how far the Philippine Government can accommodate China’s interests under Chinese pressure.

The arbitral ruling has given the Philippines an ace in its dialogue with China over the South China Sea.  The law is on the Philippines side and if China uses brute force to deny us our sovereign rights, this would make China an international delinquent and would be full of risks for China, even if the war could be limited to a low-intensity conflict.

First, it would disrobe China of its pretension to be the champion of the developing countries.  In the course of debates during the negotiations of the Convention, “China actively positioned itself as one of the foremost defenders of the rights of developing States and was resolutely opposed to any suggestion that coastal States could be obliged to share the resources of the exclusive economic zone with other powers that had historically fished in those waters,” according to the Tribunal.’s finding.  China has reversed its negotiating position.

Second, China would have to reckon with the reaction of the other one hundred sixty six Contracting Parties to the UN Convention of the Law of the Sea.  China would have no casus belli and would be in delicto with respect not only to the Convention but also with the UN Charter itself as well as with other major Treaties, to which the great majority of countries are also Parties, such as the Vienna Convention on the Law of Treaties.

Third, any aggression against the Philippines would upset its relations with ASEAN as a Dialogue Partner and particularly cause alarm to Indonesia and the other ASEAN countries bordering the South China Sea.

Fourth, the South China Sea is the busiest maritime highway of international trade.  The tension in the area would affect the economies of the countries in the region, cause greater harm to China’s economy, and slow down the global economy.

Fifth, China’s Road and Belt initiative will not thrive in an atmosphere of tension and instability.  With this ambitious project to make China great, China can ill afford to act as an international delinquent.

Sixth, it would put the United States on the spot with unforeseeable consequences.  The United States has a Mutual Defense Treaty with the Philippines whose Article V provides that “… an armed attack on either of the Parties is deemed to include an armed attack on  … its armed forces, public vessels or aircraft in the Pacific.”

Seventh, China would lose the Philippines as a strategic ally possibly during the lifetime of President Xi Jinping.

Is China a Friend?

The Philippines was its best friend at the 2017 ASEAN and related Summits.  The emergence of President Duterte was like receiving manna from heaven for China.  China needs the Philippines’ friendship (with its strategic location at the center of the Archipelagic Continent) and ASEAN’s cooperation for its ambitious global strategy,

The pertinent question to ask is whether China is a friend of the Philippines, rather than whether the Philippines can enforce the Tribunal’s ruling.   With respect to the Reed Bank particularly, this is a negative obligation on the part of China.   It only calls for China not to interfere and threaten the Philippines.   The nine-dash-line is also the source of China’s conflict with its other ASEAN maritime neighbors.  

The Government of the People’s Republic of China inherited the nine-dash-line from its rival Republican (Kuomintang) Government, which first published the nine-dash-line in an official Chinese map in 1948.  China has now a choice of complying with its obligation to harmonize its laws with the Convention and remove a source of conflict (as the Philippines did when it abandoned the Treaty Limits doctrine) or be in conflict with its ASEAN maritime neighbors.  If China should make the right choice, the Code of Conduct being negotiated between ASEAN and China could draft a form of words that will give China a graceful way to abandon the Kuomintang legacy and begin a new era of unquestionable friendship between China and its ASEAN maritime neighbors.

OF LAW AND POLITICS

PH GOVERNMENT, BEING THE STEWARD OF THE NATION’S PATRIMONY, NEEDS TO BE TRANSPARENT ON BENHAM RISE, RENAMED AS THE PHILIPPINE RISE.

Jaime S. Bautista

The news that the Philippines had given its consent to China to conduct scientific research in Benham Rise, renamed Philippine Rise, has provoked much controversy.  The Benham Rise, with a submarine area roughly the size of Greece, is believed to be rich in gas deposits.  There is, therefore, great anxiety, in being informed about the measures that the Philippines is taking to ensure that the Philippines is adequately safeguarding its sovereign rights to explore and exploit the natural resources in this submarine area.

As a maritime country located in the center of the archipelagic continent, the Philippines actively participated in the three UN Conferences on the Law of the Sea, to advocate the creation of new maritime zones for coastal states and lobby for the emergence of a New International Economic Order.  The Philippines has been a leader of the Group of 77, which emerged at the Third UN Conference on the Law of the Sea (UNCLOS III) as a negotiating bloc to reflect the perspectives of developing countries.  UNCLOS III was conducted over a nine-year period between 1973 and 1982 with 11 negotiating sessions spread across 585 days and held in three countries.  One of the beneficial outcomes for the Philippines from this Conference was the recognition of its sovereign rights to the Benham Rise.

Concept of Sovereign Rights

Benham Rise is located in the Philippine Sea near Aurora province.   This submarine area is the “natural prolongation” of the land territory of the Philippines, and by virtue thereof, the Philippines has the sovereign rights to explore and exploit its natural resources under the doctrine of the Continental Shelf.  

However, Benham Rise is not part of the Philippines’ territory over which the Philippines enjoys sovereignty or the full plenitude of powers to control the activities in the area. 

The concept of sovereign rights means that the Coastal State should exercise its rights without unjustifiably interfering with navigation and other rights and freedoms of other States in the area as provided in the Convention.

Continental Shelf Doctrine

Under the UN Convention on the Law of the Sea, the Continental Shelf of a State extends up to 200 nautical miles from the baselines from which the territorial sea is measured.  The Coastal State may have an Extended Continental Shelf up to 350 nautical miles from the baselines, but always observing the provisions of the Convention. 

In  2008, the Philippines submitted the required data to the Commission on the Limits of the Continental Shelf (CLCS), defining the outer limits of its Expanded Continental Shelf in Benham Rise.  The CLCS found the data to be in accordance with the Convention.   The reported outer limits for its zone in Benham Rise, being in harmony with the recommendations of the CLCS, are now final and binding.

The sovereign rights of a Coastal State to explore and exploit the natural resources in its Continental Shelf are exclusive in the sense that no other State can exercise these rights without the consent of the Coastal State.  

Moreover, these rights do not depend on occupation or proclamation by the Coastal State.  The Coastal State has rights to its continental shelf ipso facto, ipso jure and ab initio.  Other States cannot claim they had pre-existing rights to the natural resources in the continental shelf, before the entry into force of the UN Convention on the Law of the Sea.  This provision in the Convention was to ensure that the rights of the Coastal State to its Continental Shelf was protected and could not be challenged by other States.

Overlap between EEZ and Continental Shelf

The Continental Shelf substantially overlaps with the 200 NM Exclusive Economic Zone, but not the Expanded Continental Shelf because it goes beyond 200 NM.  The Convention provides that the rights of the Coastal State over its continental shelf do not affect the legal status of the superjacent waters or of the airspace above those waters. 

Thus, the Philippines rights over Benham Rise, in the submarine area beyond the 200 NM from the baselines (the Expanded Continental Shelf) cover only the mineral and other non-living resources of the sea-bed and subsoil, together with the living organisms belonging to sedentary species.  These rights do not cover the water column or the exclusive right of fishing.  The superjacent waters of the Expanded Continental Shelf are high seas open to all States.  They are covered by the rules of the Convention and other rules of international law, with freedom of navigation and fishing and other freedoms, subject to the provisions of the Convention. 

This is different from the Philippines’ rights over its Continental Shelf (up to 200 nm from the baselines) because the superjacent waters have the legal status of Exclusive Economic Zone.   In its EEZ, the Philippines has sovereign rights for exploring and exploiting the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and subsoil, as well as to other activities for the economic exploitation of the zone, such as the production of energy from the water, currents and winds.

Sovereign Right to Regulate Marine Scientific Research

The Philippines enjoys sovereign rights to regulate, authorize and conduct marine scientific research in its Continental Shelf.  While the Convention encourages states to cooperate in marine scientific research for peaceful purposes and to increase scientific knowledge for the benefit of mankind, the Convention gives coastal states full discretion to decide whether to give its consent for research in exploring and exploiting the natural resources.  This right gives premium to the value that the natural resources may have for the economic development of the coastal state.    

With respect to pure research and not for economic motivation, the Convention provides different rules depending on whether the research is to be undertaken within the Continental Shelf or in the Expanded Zone.  The Coastal State may not withhold its consent for pure research in the Expanded Continental Shelf, even if the research may have direct significance for the exploration and exploitation of natural resources.  However, consent may be withheld if the research is to be made in an area in which exploitation or detailed exploratory operations are occurring or will occur within a reasonable period.  But if the research is for exploitation of the resources, the sovereign rights of the Coastal State to deny consent remain protected.

Exercise of Sovereign Rights

Until Harry Roque, the President’s Spokesman, disclosed that China’s research has the blessing of the President and suggested, according to a newspaper, that ”anyone opposed to the joint research project should go to Congress and raise the issue there”, it was not clear whether the Philippines’ consent could not be withheld because of the nature of the research.

Roque’s statement suggests that China’s research is not intended to be one for pure research so that the Philippine Government had the full discretion to grant or deny China’s request.  As the Government is the steward of the nation’s patrimony (which is for the benefit not only of present but also of future generations), the Philippine Government  needs to be transparent on Benham Rise  and should disclose the protocol that it followed for considering China’s request, the reasons for its consent, and the conditions it imposed on China.  The Government should also disclose whether China has complied with its obligation to fully share with the Philippines the results of previous surveys conducted under previous agreements.

The Philippine Government could have anticipated the controversy that followed its failure to timely disclose the grant of consent to China’s research.  After all, China’s nine-dash line encroaches on the Philippines’ EEZ and Continental Shelf in the West Philippine Sea although this claim does not affect the Philippines’ sovereign rights over Benham Rise, which is located on the eastern side of the Philippine Archipelago.

As for Roque’s suggestion, Congress may wish to consider conducting an inquiry in aid of legislation, to determine whether China has provided the Philippines with the information that the Convention requires it to provide to the Coastal State.  The inquiry may result in legislation imposing conditions relating to the granting or withholding of research not only with respect to Benham Rise but also in the different maritime zones of the Philippines.  The passage of legislation will provide clear guidelines to protect and preserve the nation’s patrimony for the benefit of our present and future generations.