Key Takeaway: The President’s Discretion in Withdrawing from Treaties is Not Absolute

Senators Francis “Kiko” N. Pangilinan, et al. vs. Alan Peter S. Cayetano, et al., G.R. No. 238875, March 16, 2021

Imagine a world where a nation’s commitment to international agreements could be undone with a mere stroke of the pen. This scenario became a reality when the Philippines decided to withdraw from the Rome Statute, sparking a legal battle that reached the Supreme Court. The case of Senators Pangilinan and others against high-ranking officials, including the Executive Secretary, challenged the President’s unilateral decision to exit an international treaty without Senate concurrence. This dispute not only raised questions about the balance of power but also highlighted the importance of international agreements in protecting human rights.

The central issue was whether the President could withdraw from the Rome Statute, which established the International Criminal Court (ICC), without the Senate’s approval. This treaty, aimed at prosecuting international crimes, had been ratified by the Philippines in 2011. The petitioners argued that such a withdrawal required the Senate’s consent, as it effectively nullified a treaty that had been previously ratified with Senate approval.

Legal Context: The Role of Treaties and the President’s Powers

In the Philippines, treaties and international agreements play a crucial role in shaping the country’s foreign policy and legal obligations. According to the 1987 Constitution, treaties must be concurred in by at least two-thirds of all Senate members to be valid and effective. This requirement reflects the separation of powers and the system of checks and balances that underpin the Philippine legal system.

The term “treaty” refers to international agreements that require legislative concurrence after executive ratification. These can include conventions, declarations, covenants, and acts. On the other hand, executive agreements do not require Senate concurrence and are typically used to implement existing policies or adjust treaty details.

The President, as the primary architect of foreign policy, has the authority to negotiate and enter into treaties. However, this power is not absolute. The Constitution mandates that the President must ensure that treaties align with national interests and comply with existing laws. The Supreme Court has previously clarified that while the President has the discretion to enter into treaties, the Senate’s concurrence is necessary for their validity and effectivity.

Key constitutional provisions include:

“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.” (Article VII, Section 21, 1987 Constitution)

This provision underscores the shared responsibility between the executive and legislative branches in treaty-making, ensuring that the President’s actions are subject to legislative oversight.

Case Breakdown: The Journey from Ratification to Withdrawal

The Philippines’ involvement with the Rome Statute began in 1998 when it participated in the United Nations Diplomatic Conference that established the ICC. The country signed the treaty in 2000, and after years of deliberation, the Senate ratified it in 2011. This ratification was seen as a commitment to the international community to prosecute individuals accused of international crimes such as genocide, crimes against humanity, and war crimes.

However, in 2018, President Duterte announced the Philippines’ withdrawal from the Rome Statute, citing concerns over the ICC’s preliminary examination of alleged summary killings during his administration’s “war on drugs.” The withdrawal was formalized through a Note Verbale submitted to the United Nations Secretary-General, and the ICC acknowledged the withdrawal’s effectivity in 2019.

The petitioners, including several senators, argued that the President’s unilateral withdrawal violated the Constitution, as it effectively repealed a treaty without Senate concurrence. They sought to have the withdrawal declared void and requested a writ of mandamus to compel the executive to notify the United Nations of the withdrawal’s cancellation.

The Supreme Court, in its ruling, emphasized that the President’s discretion to withdraw from treaties is not absolute. It outlined three guidelines for evaluating the President’s withdrawal:

• The President has leeway to withdraw from agreements deemed contrary to the Constitution or statutes.
• The President cannot unilaterally withdraw from agreements entered into pursuant to congressional imprimatur.
• The President cannot unilaterally withdraw from international agreements where the Senate concurred and expressly declared that withdrawal must also be made with its concurrence.

The Court noted that the Philippines’ withdrawal from the Rome Statute was consistent with the treaty’s provisions and was acknowledged by the ICC. However, it also highlighted that the withdrawal did not affect the country’s obligations under the treaty for actions committed while it was still a member.

Direct quotes from the Court’s reasoning include:

“The president, as primary architect of our foreign policy and as head of state, is allowed by the Constitution to make preliminary determinations on what, at any given moment, might urgently be required in order that our foreign policy may manifest our national interest.”

“Absent a clear and convincing showing of a breach of the Constitution or a law, brought through an actual, live controversy and by a party that presents direct, material, and substantial injury as a result of such breach, this Court will stay its hand in declaring a diplomatic act as unconstitutional.”

Practical Implications: Navigating Treaty Withdrawals

This ruling clarifies the limits of the President’s power to withdraw from international treaties. It underscores the importance of legislative involvement in treaty-making and withdrawal, ensuring that such actions are not taken arbitrarily. For future cases, this decision sets a precedent that the President must consider the legislative process that accompanied the treaty’s ratification before deciding to withdraw.

For businesses and individuals, understanding the legal framework surrounding treaty withdrawals can be crucial, especially when considering investments or activities that may be affected by international agreements. It is advisable to stay informed about the country’s treaty obligations and any potential changes that may impact legal rights and obligations.

Key Lessons:

• The President’s power to withdraw from treaties is subject to constitutional and statutory limitations.
• Legislative involvement in treaty-making and withdrawal is essential to maintaining checks and balances.
• Individuals and businesses should monitor changes in treaty status that may affect their legal rights and obligations.

Frequently Asked Questions

What is the difference between a treaty and an executive agreement?

A treaty requires Senate concurrence to be valid and effective, while an executive agreement does not need legislative approval and is typically used to implement existing policies or adjust treaty details.

Can the President unilaterally withdraw from any treaty?

No, the President’s power to withdraw from treaties is limited. Withdrawal must comply with constitutional and statutory requirements, and legislative involvement may be necessary depending on how the treaty was ratified.

What are the implications of withdrawing from the Rome Statute?

Withdrawal from the Rome Statute does not discharge a country from obligations incurred while it was a member. The ICC retains jurisdiction over actions committed during membership, and domestic laws may still provide similar protections.

How does this ruling affect future treaty withdrawals?

This ruling establishes that the President must consider the legislative process involved in treaty ratification before withdrawing. It emphasizes the need for legislative oversight in treaty-related decisions.

What should individuals and businesses do to stay informed about treaty changes?

Regularly monitor official government announcements, legal updates, and consult with legal experts to understand how treaty changes may impact their rights and obligations.

ASG Law specializes in international law and constitutional law. Contact us or email hello@asglawpartners.com to schedule a consultation and navigate the complexities of treaty law in the Philippines.