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.”