Executive Discretion in Treaty Withdrawal: A Delicate Balance of Power

Senators Francis “Kiko” N. Pangilinan, et al. v. Alan Peter S. Cayetano, et al., G.R. Nos. 238875, 239483, 240954, March 16, 2021

Imagine a world where international agreements, like the Rome Statute, could be nullified by a single stroke of a pen. The implications of such an act are profound, affecting not only the country’s international relations but also the rights of its citizens. This was the central issue in a landmark Philippine Supreme Court case that examined the boundaries of executive power in withdrawing from treaties. The case revolved around the Philippines’ withdrawal from the Rome Statute of the International Criminal Court, a move initiated by President Rodrigo Duterte. The key question was whether the President could unilaterally withdraw from such treaties without Senate concurrence.

Legal Context: The Framework of Treaty-Making and Withdrawal

The Philippines, like many nations, navigates a complex web of international agreements that shape its foreign policy and domestic laws. The Constitution mandates 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 (Article VII, Section 21). This provision underscores the shared responsibility between the executive and legislative branches in treaty-making.

However, the Constitution is silent on the process of withdrawing from treaties. This ambiguity led to debates over whether the President could act unilaterally or if Senate concurrence was necessary. The concept of ‘executive agreements’ further complicates the issue. Executive agreements are international agreements entered into by the President without the need for Senate concurrence, typically when they implement existing laws or policies.

Key legal principles such as the ‘mirror principle’ and the ‘Youngstown framework’ were considered. The mirror principle suggests that the degree of legislative approval needed to exit an international agreement should parallel the degree required to enter it. The Youngstown framework, derived from U.S. jurisprudence, categorizes executive actions into three levels based on their alignment with congressional authority.

The Rome Statute itself provides a mechanism for withdrawal, requiring a written notification to the United Nations Secretary-General, effective one year after receipt. This provision was at the heart of the legal debate, as it did not explicitly require Senate concurrence for withdrawal.

Case Breakdown: The Journey to the Supreme Court

The case began when President Duterte announced the Philippines’ withdrawal from the Rome Statute on March 15, 2018, amid concerns over the International Criminal Court’s preliminary examination of alleged human rights abuses during his administration’s war on drugs. The formal notification was submitted the following day, and the withdrawal became effective on March 17, 2019.

Six senators, along with other petitioners, challenged the President’s unilateral action in the Supreme Court, arguing that Senate concurrence was necessary for the withdrawal to be valid. They contended that the withdrawal impaired their legislative prerogative and the country’s commitment to international human rights standards.

The Supreme Court, in its decision, emphasized the importance of maintaining a balance of power:

“The president, as primary architect of foreign policy, 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.”

The Court also noted:

“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.”

Ultimately, the Court dismissed the petitions as moot, recognizing that the withdrawal had already been completed and acknowledged by the International Criminal Court. However, it provided guidance on the limits of executive power in treaty withdrawal:

• The President has leeway to withdraw from treaties deemed contrary to the Constitution or statutes.
• The President cannot unilaterally withdraw from treaties entered into pursuant to congressional imprimatur or those requiring Senate concurrence for withdrawal.

Practical Implications: Navigating Future Treaty Withdrawals

This ruling sets a precedent for how the Philippines will approach treaty withdrawals in the future. It clarifies that while the President has significant discretion in foreign policy, this power is not absolute and must respect legislative involvement when treaties are linked to prior laws or require Senate concurrence.

For businesses and individuals, this decision underscores the importance of understanding the legal framework governing international agreements. It highlights the need for vigilance in monitoring government actions that may affect international commitments and domestic legal protections.

Key Lessons

• Executive actions in foreign policy must align with constitutional checks and balances.
• Legislative involvement in treaty-making and withdrawal is crucial to maintaining democratic governance.
• Individuals and organizations should stay informed about changes in international agreements that may impact their rights and obligations.

Frequently Asked Questions

What is the Rome Statute, and why was its withdrawal significant?
The Rome Statute established the International Criminal Court, which prosecutes international crimes. The withdrawal was significant because it raised questions about the Philippines’ commitment to international human rights standards.

Can the President of the Philippines unilaterally withdraw from any treaty?
No, the President’s power to withdraw from treaties is limited. The Supreme Court ruled that unilateral withdrawal is permissible only if the treaty is deemed unconstitutional or contrary to existing laws, and if no legislative involvement is required.

What is the ‘mirror principle’ in treaty law?
The ‘mirror principle’ suggests that the process of withdrawing from a treaty should mirror the process of entering into it, meaning if Senate concurrence was required to enter a treaty, it should also be required for withdrawal.

How does the Youngstown framework apply to executive actions?
The Youngstown framework categorizes executive actions into three levels: actions with congressional authorization, actions in the absence of congressional guidance, and actions contrary to congressional will. It helps determine the validity of executive actions based on their alignment with legislative intent.

What are the implications of this ruling for future treaty withdrawals?
Future treaty withdrawals must consider the extent of legislative involvement in the original treaty-making process. If a treaty was entered into with congressional imprimatur or requires Senate concurrence for withdrawal, the President cannot act unilaterally.

How can individuals and businesses protect their rights in light of this ruling?
Stay informed about international agreements and their status. Engage with legal experts to understand how changes in these agreements may affect your rights and obligations.

ASG Law specializes in international law and constitutional law. Contact us or email hello@asglawpartners.com to schedule a consultation.