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Withdrawing from the ICC

I understand that a case has been filed before the Supreme Court requiring that the matter of withdrawal from the Rome Statute of the International Criminal Court be subjected to the concurrence of Senate in the same way that the Constitution requires its concurrence for a treaty’s entry into force in the Philippines.  Interestingly, the last time the Court was asked to pass upon a related issue again had to do with our membership in the International Criminal Court.  At that time, President Gloria Macapagal Arroyo had been prevailed upon by the United States—that was strongly opposed to court’s coming into being although it helped conceive it!—not to ratify the treaty.  She refused to send it to the Senate.

Harry Roque who was then a full-time professor at the UP College of Law and some others went to court and asked it to compel, by mandamus, the President to send the treaty off to the Senate.  The court refused to order the President, rightly, to my mind, maintaining that as the conduct of foreign affairs was within the province of the Executive, the President’s refusal to obtain Senate concurrence was tantamount to a decision to reject it.  Obviously, this is not the same case, but a similar issue is touched upon: Does the Executive’s prerogative in respect to foreign affairs exclude any role of the Legislature, or a chamber thereof, in the matter of the denunciation of or withdrawal from a treaty?

Two standpoints have to be distinguished.  From an international law vantage point, the State is bound by a treaty’s provisions and is likewise freed of its obligations in respect to them when the requirements of ratification on the one hand, or denunciation or withdrawal on the other are fulfilled as required by the treaty’s provisions itself.  So, ratification will have both domestic and international aspects, the latter involving deposit of ratification documents with either a depository state or organization.  Looked at through the lens of municipal law, however, no matter that a treaty may have been ratified and may have entered into force, when its provisions collide with the Constitution, the latter document prevails—with the paradoxical result that while a State’s constitutional order forbids it from fulfilling its treaty obligations, the State remains bound under international law and causes State responsibility to become operative when it fails to do so.  In respect to ratification, international law leaves it to the constitutional precepts of each state to specify how treaties are ratified.  In the Philippines, ratification is essentially an Executive act, with the requirement, under the Constitution, that the Senate concur.

The requirement of Senate concurrence is not unique to the Philippines and the question has been repeatedly asked why a chamber of the Legislature has to grant its fiat to what is essentially an Executive function.  An argument from “symmetry” has been advanced —though not convincingly.  It has been argued that the Senate’s power to concur or to withhold its concurrence balances the President’s power to sign a bill into law—an Executive intrusion into what is essentially a Legislative function.  But while symmetry may convince in the field of aesthetics, some more compelling reason must be advanced for this criss-crossing of the lines of governmental coordination and the blurring of separation of powers.  I have always argued that the President’s approval of a bill is necessary because the execution of the law will depend on the Chief Executive whose signature is a guarantee of the law’s enforcement.  Obviously, when the Legislature decides to override a presidential veto, it is sending the Chief Executive the very strong message that as the law-making body of the State, it is convinced of the necessity of the enactment and will not allow the President to stand in the way.

When a treaty enters into force for the Philippines, it has the same effect on the legal system as a statute.  It can support a cause of action and create legally demandable rights as well as enforceable obligations.  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 legislature—a proposition anathema to our American borrowing of “separation of powers.”  Our accession to the Uruguay Round of the General Agreement of Tariffs and Trades that made us members of the World Trade Organization as well as re-aligned our intellectual property regime and all our laws on tariffs, imposts and customs duties is a very good example.  The Constitution wisely involves the Legislation in the process by which the legal system is altered by requiring Senate ratification.

The same thing is no less true in respect to the denunciation of a treaty or a withdrawal from membership in a treaty organization.  The Philippines would obviously go through an overhaul of its legal system were we to denounce the UN Convention on the Law of the Sea.  Its effects on the definition of our territorial sea and our claims to sovereign rights would be severely altered.  Obviously, it is not much different when one deals with the crimes punished by the Rome Statute, as well as its processes for the arrest, prosecution, trial and punishment of international felons.  Our legal order has been reset by the country’s ratification of the treaty—which needed Senate concurrence. It would once more be altered and realigned by our withdrawal from the treaty.  And if Congress were to have no part in this, that would effectively confer on the President broad powers of law-making.  

It is not a question of diluting the powers of the President in the matter of the conduct of foreign relations.  It is a matter of maintaining legislative supremacy in the matter of the configuration of the legal order by statutory enactment or its analogy!

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Topics: Supreme Court , International Criminal Court , Harry Roque , World Trade Organization , Gloria Macapagal Arroyo
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