Entry into Treaties or International Agreements; Withdrawal and Termination | Diplomatic power | Powers of the President | EXECUTIVE DEPARTMENT

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:

1. Negotiation: The President, through the Department of Foreign Affairs (DFA), initiates or participates in negotiations with other states or international organizations.

2. 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.

3. 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.

4. Ratification: Following Senate concurrence, the President formally ratifies the treaty, signifying the Philippines’ consent to be bound by its terms.

5. 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.

To Contract or Guarantee Foreign Loans | Diplomatic power | Powers of the President | EXECUTIVE DEPARTMENT

Diplomatic Power of the President: To Contract or Guarantee Foreign Loans

1. Constitutional Basis

The power of the President to contract or guarantee foreign loans is derived from the Constitution. The Philippine Constitution of 1987, specifically Article VII (Executive Department), vests the President with diplomatic and borrowing powers, subject to conditions and limitations imposed by law.

• Article VII, Section 20 of the 1987 Constitution states:

  “The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.”

This provision outlines the requirement of Monetary Board concurrence and reports to Congress as checks on the President’s power to borrow or guarantee loans on behalf of the government.

2. Requirements and Conditions

The President's power to contract or guarantee foreign loans is not absolute. It is subject to several requirements and conditions:

• Prior Concurrence of the Monetary Board:

  • Before the President can contract or guarantee any foreign loan, the Monetary Board of the Bangko Sentral ng Pilipinas (BSP) must first give its approval. The Monetary Board is responsible for determining the economic viability and sustainability of these loans, ensuring that they do not unduly increase the foreign debt or burden the economy.

  • The approval process by the Monetary Board includes a comprehensive review of the loan terms, interest rates, payment schedule, and the project or purpose for which the loan is being sought.

• Limitations Imposed by Law:

  • Foreign loans contracted or guaranteed by the President must also conform to limitations set by law. These laws may include provisions on debt ceilings, borrowing procedures, and guidelines on the use of foreign loans.
  • For example, Republic Act No. 4860, or the "Foreign Borrowings Act," sets guidelines on how foreign loans should be contracted, ensuring transparency and the proper use of these loans for national projects or purposes.

• Reporting to Congress:

  • The Monetary Board is mandated to submit a report to Congress within 30 days after the end of each calendar quarter. This report must detail all foreign loans contracted or guaranteed by the government and its government-owned or controlled corporations (GOCCs), with particular attention to loans that would increase the foreign debt.

  • This report enhances transparency and ensures legislative oversight over foreign borrowing, allowing Congress to monitor and address any concerns regarding the management of foreign loans and their impact on national debt.

3. Nature and Scope of the Power

• Contracting Foreign Loans: The President can enter into agreements for foreign loans, which can be used to fund government projects, support infrastructure development, or finance public expenditures. The loans are typically secured from foreign governments, international financial institutions (such as the World Bank or the International Monetary Fund), or other external sources.

• Guaranteeing Foreign Loans: The President may also guarantee foreign loans, which means the Philippine government acts as a guarantor for loans taken by government agencies, GOCCs, or even private entities in some instances. This entails the government taking responsibility for repayment if the primary borrower defaults. The guarantee is a risk undertaken by the state to facilitate borrowing for critical projects, particularly in public-private partnerships or key infrastructure developments.

4. Limitations on Borrowing

• Debt Ceiling: One of the significant limitations placed on the power to borrow foreign loans is the imposition of a debt ceiling. This ceiling is designed to ensure that the country does not accumulate an unsustainable level of foreign debt that could lead to financial instability or insolvency.

• Purpose of Foreign Loans: The foreign loans contracted or guaranteed must serve specific purposes that benefit the public. Typically, these loans are used to finance essential government projects, such as infrastructure development (roads, bridges, ports, etc.), disaster relief, economic recovery programs, and other national development initiatives.

5. Legal Framework and Jurisprudence

• Republic Act No. 4860 (Foreign Borrowings Act): This law provides additional guidance on the borrowing process, including limitations on the purposes of foreign loans, oversight mechanisms, and procedures that the government must follow when contracting foreign loans. It supplements the constitutional provisions by specifying legal boundaries within which the President must operate.

• Jurisprudence: Philippine jurisprudence on the President’s power to contract or guarantee foreign loans revolves around the concepts of executive discretion and legislative oversight. The courts have consistently upheld that while the President enjoys broad discretion in managing foreign relations and securing foreign loans, these powers are subject to constitutional and statutory limitations.

  Noteworthy cases in this area include discussions on the role of the Monetary Board in ensuring fiscal prudence and the constitutional obligation of the President to operate within the boundaries of law when contracting foreign loans.

6. Impact on Foreign Relations

Foreign loans are a crucial aspect of international relations. The President’s ability to contract or guarantee such loans plays a vital role in fostering bilateral and multilateral relationships. These loans can often be tied to foreign aid, development assistance, or economic cooperation agreements.

When contracting loans from foreign governments or international institutions, the President must also balance the economic and diplomatic implications of such borrowings. Foreign loans often come with conditions or expectations, and the President must ensure that the terms of the loans align with the national interest and do not undermine sovereignty or economic independence.

7. Checks and Balances

• Monetary Board Oversight: The requirement of Monetary Board concurrence serves as an essential check on the President’s borrowing powers. The Board ensures that the foreign loan is economically viable, necessary, and within sustainable debt levels.

• Congressional Oversight: The obligation to report to Congress ensures that the legislative branch remains informed of the foreign loans contracted or guaranteed by the President. Congress has the authority to pass laws that further regulate or limit the foreign borrowing activities of the Executive.

• Judicial Review: Although rare, the judiciary can intervene in instances where there is a question of constitutionality or legality regarding the President's exercise of this power. For instance, if a foreign loan is contracted without the necessary Monetary Board concurrence or beyond the legal limits, it may be subject to judicial scrutiny.

Summary

The power of the President to contract or guarantee foreign loans is a significant facet of the Executive’s diplomatic and financial authority, grounded in the Constitution and regulated by laws like Republic Act No. 4860. While the President holds broad discretion in this area, it is subject to checks and balances such as Monetary Board approval, Congressional oversight, and legal limitations. This ensures that foreign loans are used prudently, transparently, and in the national interest, while maintaining economic stability and protecting public welfare.

In General | Diplomatic power | Powers of the President | EXECUTIVE DEPARTMENT

Diplomatic Powers of the President: An In-Depth Analysis

Under the Philippine Constitution, the President, as the head of state, is vested with extensive powers related to foreign affairs and diplomacy. These diplomatic powers are primarily derived from Article VII, Section 21 of the 1987 Constitution, which grants the President the authority to enter into treaties and international agreements, subject to certain limitations and requirements. These powers are foundational to the President's role in shaping and executing the country’s foreign policy and maintaining international relations.

A. Overview of Diplomatic Power

The diplomatic power of the President refers to the authority to represent the country in international affairs, conduct diplomacy, and negotiate and enter into treaties and executive agreements with other states and international organizations. Diplomatic power is part of the larger executive power granted to the President under Article VII of the Constitution, making the President the principal actor in foreign relations.

The Constitution provides a framework for these powers, and the Philippine Supreme Court has interpreted and clarified the extent of the President's authority in several landmark cases.

B. Sources of Diplomatic Power

1. Constitutional Basis

   • Article VII, Section 21: This provision grants the President the power to enter into treaties and international agreements. However, for treaties and international agreements to be valid and enforceable in the Philippines, they must be concurred in by at least two-thirds of all the Members of the Senate.
   • Article II, Section 2: This establishes that the Philippines adheres to generally accepted principles of international law as part of the law of the land.

2. Statutory and Jurisprudential Foundations

   • The President’s diplomatic power is further elaborated upon and interpreted through various statutes and decisions of the Supreme Court. Notable cases have delved into the distinctions between treaties and executive agreements and have set boundaries for the President’s exercise of this power.

C. Components of Diplomatic Power

1. Treaty-Making Power

   • Treaties are formal, written agreements between sovereign states or between states and international organizations, governed by international law. Under Article VII, Section 21, treaties entered into by the President require Senate concurrence with a two-thirds majority for their validity.
   • The Senate's role in treaty-making is an essential check on the President’s power. The Senate does not negotiate treaties but serves as a reviewing body, ensuring that treaties are in the nation’s best interest.

2. Executive Agreements

   • In addition to treaties, the President may enter into executive agreements, which do not require Senate concurrence. Executive agreements are more flexible than treaties and may cover a wide range of matters, from trade to military cooperation.
   • The Supreme Court, in cases like Bayan v. Zamora and Commissioner of Customs v. Eastern Sea Trading, has clarified that executive agreements are binding and valid under international law as long as they do not violate existing laws or treaties.
   • Executive agreements are typically used for matters of less formal importance than treaties, such as administrative agreements between government agencies or technical cooperation agreements.

3. Diplomatic Recognition

   • The President has the authority to recognize foreign states and governments. Diplomatic recognition is crucial in international relations, as it signifies the Philippines’ acknowledgment of another state’s legitimacy and sovereignty.
   • Recognition of foreign states or governments is a political act, and courts generally refrain from interfering with the President’s exercise of this power, as it involves sensitive matters of foreign policy.

4. Appointment of Ambassadors and Consuls

   • The President, as the chief architect of foreign policy, has the power to appoint ambassadors, consuls, and other diplomatic officers. These appointments require confirmation by the Commission on Appointments under Article VII, Section 16.
   • Ambassadors and diplomatic agents represent the country abroad, protect the interests of the Philippines and its citizens, and engage in diplomatic negotiations on behalf of the President.

5. Conduct of Diplomatic Relations

   • The President oversees the conduct of all foreign affairs through the Department of Foreign Affairs (DFA). The DFA executes the President’s diplomatic agenda, maintains embassies and consulates, and manages relations with international organizations.
   • In times of crisis, such as armed conflict or diplomatic disputes, the President is empowered to direct the DFA in negotiations, manage international sanctions, and implement foreign policy initiatives.

D. Limitations and Checks on the President’s Diplomatic Power

1. Senate Concurrence

   • For treaties to be valid, the President must obtain the concurrence of at least two-thirds of the Senate. This serves as a significant limitation, ensuring that the President cannot unilaterally bind the country to international agreements that may have far-reaching consequences.

2. Judicial Review

   • While the Supreme Court traditionally exercises judicial restraint in matters of diplomacy, it retains the authority to review the constitutionality of treaties and executive agreements. For example, the Court in Pimentel v. Executive Secretary ruled on the validity of international agreements related to the presence of foreign military forces in the Philippines.

3. Principles of International Law

   • The exercise of diplomatic power must conform to generally accepted principles of international law, such as respect for state sovereignty, non-intervention, and the peaceful settlement of disputes. The Philippines, as a member of the United Nations and other international bodies, is bound by international treaties and conventions it has ratified.

4. Legislative Oversight

   • Although the President exercises significant discretion in diplomatic matters, Congress has oversight functions, particularly regarding budget appropriations for foreign affairs and defense, and the conduct of foreign policy in relation to national security and economic welfare.

5. Public Accountability

   • The President is politically accountable to the people and can be questioned for actions in the diplomatic sphere. Public opinion, international reputation, and potential diplomatic consequences act as informal checks on the President’s exercise of diplomatic power.

E. Key Jurisprudence on Diplomatic Power

1. Bayan v. Zamora (2000)

   • This case revolved around the Visiting Forces Agreement (VFA) between the Philippines and the United States. The Supreme Court upheld the validity of the VFA as an executive agreement, ruling that the agreement was entered into pursuant to a previous treaty (the Mutual Defense Treaty of 1951) and thus did not require Senate concurrence.

2. Pimentel v. Executive Secretary (2005)

   • In this case, the Supreme Court ruled on the constitutionality of an agreement between the Philippines and the United States regarding the stationing of foreign troops. The Court held that while the agreement involved national security, it was ultimately a political question and within the President’s discretion, subject to legislative concurrence for treaties but not for executive agreements.

3. Commissioner of Customs v. Eastern Sea Trading (1961)

   • This case distinguished between treaties and executive agreements. The Court clarified that while treaties require Senate concurrence, executive agreements do not, provided they do not conflict with existing laws or require legislative action for their implementation.

F. Conclusion

The diplomatic powers of the President are integral to the country’s conduct of foreign relations and its interactions with the international community. While the President enjoys considerable authority in this realm, the Constitution imposes checks and balances, particularly through Senate concurrence for treaties, judicial review of constitutional issues, and adherence to international law. Through the careful exercise of diplomatic power, the President plays a crucial role in protecting national interests, fostering international cooperation, and ensuring the Philippines' standing in the global community.