Entry into Treaties or International Agreements; Withdrawal and Termination (Diplomatic Power of the President)

1. Constitutional Basis

The diplomatic power of the President of the Philippines to enter into treaties or international agreements is rooted in the 1987 Philippine Constitution. Under Article VII, Section 21, the President, as the chief architect of foreign policy, is authorized to enter into treaties or international agreements with the concurrence of at least two-thirds of all the members of the Senate.

The relevant provision states:

“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.”

2. Treaties vs. Executive Agreements

There are two main categories of international commitments the President can enter into: treaties and executive agreements.

Treaties require Senate concurrence and are formal agreements between states or international organizations that cover important matters such as territorial boundaries, defense, trade, or human rights.
Executive Agreements, on the other hand, do not require Senate concurrence but must conform to existing laws or treaties. They are often administrative or operational in nature and typically involve matters like trade facilitation or military cooperation under existing frameworks.

The distinction between treaties and executive agreements was reiterated in Bayan v. Executive Secretary (2000), where the Supreme Court held that the President can enter into executive agreements on matters already covered by existing treaties or law, without needing Senate approval.

3. Process of Entering into Treaties

The steps for the entry into treaties generally follow this sequence:

Negotiation: The President, through the Department of Foreign Affairs (DFA), initiates or participates in negotiations with other states or international organizations.
Signing: Once the text of the treaty is finalized, it is signed by the authorized representatives of the negotiating parties. In the case of the Philippines, this would typically be the President or a duly designated official, such as the Secretary of Foreign Affairs.
Senate Concurrence: After the treaty is signed, it is submitted to the Senate for ratification. The Senate may approve the treaty through a resolution of concurrence, requiring the votes of at least two-thirds of all its members.
Ratification: Following Senate concurrence, the President formally ratifies the treaty, signifying the Philippines’ consent to be bound by its terms.
Effectivity: The treaty becomes binding on the Philippines according to its terms, which may include the deposit of instruments of ratification with the appropriate international body or the exchange of ratifications with the other state(s) party to the treaty.

4. Withdrawal from Treaties

The issue of withdrawal from treaties or international agreements has been controversial in Philippine legal and political discourse.

There is no explicit provision in the Constitution governing the process of withdrawal from treaties. This has led to debates on whether Senate concurrence is necessary for the withdrawal, as it is for the ratification process.
In Pimentel v. Executive Secretary (2005), the Supreme Court noted that while the President has the authority to negotiate and enter into treaties, there is ambiguity in the Constitution as to whether the President can unilaterally withdraw from treaties without Senate concurrence. The case did not resolve the issue fully but left room for future legal interpretation.
However, in Bayan Muna v. Romulo (2011), the Supreme Court opined that the President, in withdrawing from an agreement, was exercising inherent executive power related to foreign relations. Therefore, it affirmed the President's discretion to withdraw from international agreements without Senate concurrence, provided that the withdrawal is consistent with the treaty's provisions and international law.

5. Termination of Treaties

Treaties and international agreements typically contain provisions governing their termination, which can include the following methods:

Expiration: Some treaties are time-bound and expire after a specific period unless renewed by the parties.
Mutual Agreement: The parties to a treaty may agree to terminate it at any time.
Breach of Treaty: A material breach by one party can allow the other to invoke the treaty’s termination provisions.
Notice of Termination: A state may unilaterally withdraw from or terminate a treaty by giving notice, in accordance with the terms of the treaty. Most treaties specify the notice period required for such a withdrawal or termination to take effect.

6. Recent Case Law and Jurisprudence

Several landmark cases have addressed the powers of the President with respect to international agreements:

Bayan v. Executive Secretary (2000): This case clarified that executive agreements are distinct from treaties and may be validly entered into by the President without Senate concurrence, provided they do not contravene existing laws or treaties.
Bayan Muna v. Romulo (2011): In this case, the Supreme Court reiterated that the President has the authority to enter into executive agreements and emphasized the flexibility needed in foreign relations.
Pimentel v. Executive Secretary (2005): Although the Court did not definitively settle whether Senate concurrence is required for treaty withdrawals, it did raise important questions about the need for constitutional checks on the President's foreign policy powers.
Presidential Powers and the VFA: In the case of Saguisag v. Executive Secretary (2016), the Visiting Forces Agreement (VFA) was upheld as a valid executive agreement, illustrating how security and defense-related matters can be handled without the need for Senate ratification, provided they align with existing frameworks like the 1951 Mutual Defense Treaty.

7. Withdrawal from the International Criminal Court (ICC)

A recent significant example of the President’s power to withdraw from treaties involved the Philippines’ withdrawal from the Rome Statute, the treaty that established the International Criminal Court (ICC).

In 2018, President Rodrigo Duterte announced the Philippines' withdrawal from the ICC following criticisms of his administration's drug war. The withdrawal was formalized in March 2019.
There was no Senate concurrence in the withdrawal. Critics, including some Senators, argued that the Constitution requires Senate participation in both the ratification and withdrawal processes.
The Supreme Court was petitioned to rule on the issue in Senators Pangilinan v. Cayetano (2019). While the case raised important constitutional questions about the limits of executive power in foreign affairs, the withdrawal became effective before the Court could rule definitively on the matter.

Conclusion

The power to enter into treaties or international agreements, as well as the authority to withdraw from or terminate them, is a critical component of the President's diplomatic powers. While the President enjoys broad discretion in foreign policy, particularly through the use of executive agreements, the requirement for Senate concurrence in treaty ratification acts as a constitutional check on the executive. However, the issue of whether the same concurrence is necessary for treaty withdrawal remains a contentious legal question in Philippine jurisprudence.