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    Tobean Executive Act, Undertaken by The Head of The State or of The Government.-Petitioners' Arguments

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    Frances Bautista
    The document discusses the treaty making process under the Philippine constitution. It notes that while the President has sole authority to negotiate and sign treaties, concurrence of 2/3 of the Senate is required for ratification. The signature and ratification are distinct steps, with the latter binding a state to a treaty's provisions. There is no obligation to ratify, and the President has discretion over whether to submit a signed treaty to the Senate or ratify it even if the Senate consents. The document applies these principles in analyzing petitions calling for the Philippines to ratify the Rome Statute which established the International Criminal Court and was signed by the country but not ratified. It concludes the petitions have no basis as the President has discretion over

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    Tobean Executive Act, Undertaken by The Head of The State or of The Government.-Petitioners' Arguments

    Uploaded by

    Frances Bautista
    17 views3 pages
    The document discusses the treaty making process under the Philippine constitution. It notes that while the President has sole authority to negotiate and sign treaties, concurrence of 2/3 of the Senate is required for ratification. The signature and ratification are distinct steps, with the latter binding a state to a treaty's provisions. There is no obligation to ratify, and the President has discretion over whether to submit a signed treaty to the Senate or ratify it even if the Senate consents. The document applies these principles in analyzing petitions calling for the Philippines to ratify the Rome Statute which established the International Criminal Court and was signed by the country but not ratified. It concludes the petitions have no basis as the President has discretion over

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    The document discusses the treaty making process under the Philippine constitution. It notes that while the President has sole authority to negotiate and sign treaties, concurrence of 2/3 of the Senate is required for ratification. The signature and ratification are distinct steps, with the latter binding a state to a treaty's provisions. There is no obligation to ratify, and the President has discretion over whether to submit a signed treaty to the Senate or ratify it even if the Senate consents. The document applies these principles in analyzing petitions calling for the Philippines to ratify the Rome Statute which established the International Criminal Court and was signed by the country but not ratified. It concludes the petitions have no basis as the President has discretion over

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    17 views3 pages

    Tobean Executive Act, Undertaken by The Head of The State or of The Government.-Petitioners' Arguments

    Uploaded by

    Frances Bautista
    The document discusses the treaty making process under the Philippine constitution. It notes that while the President has sole authority to negotiate and sign treaties, concurrence of 2/3 of the Senate is required for ratification. The signature and ratification are distinct steps, with the latter binding a state to a treaty's provisions. There is no obligation to ratify, and the President has discretion over whether to submit a signed treaty to the Senate or ratify it even if the Senate consents. The document applies these principles in analyzing petitions calling for the Philippines to ratify the Rome Statute which established the International Criminal Court and was signed by the country but not ratified. It concludes the petitions have no basis as the President has discretion over

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    International Law;  Treaties;  Presidency; In our system of government, the

    President, being the head of state, is regarded as the sole organ and authority in
    external relations and is the country’s sole representative with foreign nations.—In
    our system of government, the President, being the head of state, is regarded as
    the sole organ and authority in external relations and is the country’s sole
    representative with foreign nations. As the chief architect of foreign policy, the
    President acts as the country’s mouthpiece with respect to international affairs.
    Hence, the President is vested with the authority to deal with foreign states and
    governments, extend or withhold recognition, maintain diplomatic relations, enter
    into treaties, and otherwise transact the business of foreign relations. In the realm
    of treaty-making, the President has the sole authority to negotiate with other states.
    Nonetheless, while the President has the sole authority to negotiate and enter into
    treaties, the Constitution provides a limitation to his power by requiring the
    concurrence of 2/3 of all the members of the Senate for the validity of the treaty
    entered into by him. Section 21, Article VII of the 1987 Constitution provides 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.”

    Same;  Same; Same;  The participation of the legislative branch in the treaty-


    making process was deemed essential to provide a check on the executive in the
    field of foreign relations.—The participation of the legislative branch in the treaty-
    making process was deemed essential to provide a check on the executive in the
    field of foreign relations. By requiring the concurrence of the legislature in the
    treaties entered into by the President, the Constitution ensures a healthy system of
    checks and balance necessary in the nation’s pursuit of political maturity and
    growth.
    Same;  Same; Same;  The signing of the treaty and the ratification are two
    separate and distinct steps in the treaty-making process—the signature is primarily
    intended as a means of authenticating the instrument and as a symbol of the good
    faith of the parties, usually performed by the state’s authorized representative,
    while ratification is the formal act by which a state confirms and accepts the
    provisions of a treaty concluded by its representative, and is generally held to be an
    executive act, undertaken by the head of the state or of the government.—Petitioners’ arguments
    equate the signing of the treaty by the Philippine representative with ratification. It should be
    underscored that the signing of the treaty and the ratification are two separate and distinct steps
    in the treaty-making process. As earlier discussed, the signature is primarily intended as a means
    of authenticating the instrument and as a symbol of the good faith of the parties. It is usually
    performed by the state’s authorized representative in the diplomatic mission. Ratification, on the
    other hand, is the formal act by which a state confirms and accepts the provisions of a treaty
    concluded by its representative. It is generally held to be an executive act, undertaken by the
    head of the state or of the government. Thus, Executive Order No. 459 issued by President Fidel
    V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international
    agreements and its ratification. It mandates that after the treaty has been signed by the Philippine
    representative, the same shall be transmitted to the Department of Foreign Affairs. The
    Department of Foreign Affairs shall then prepare the ratification papers and forward the signed
    copy of the treaty to the President for ratification. After the President has ratified the treaty, the
    Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt
    of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the
    provisions of the treaty to render it effective.
    Same; Same; Same; Petitioners’ submission that the Philippines is
    bound under treaty law and international law to ratify the treaty which it has
    signed is without basis—it is the ratification that binds the state to the
    provisions thereof; There is no legal obligation to ratify a treaty, but it goes
    without saying that the refusal must be based on substantial grounds and
    not on superficial or whimsical reasons; The President has the discretion
    even after the signing of the treaty by the Philippine representative whether
    or not to ratify the same.—Petitioners’ submission that the Philippines is
    bound under treaty law and international law to ratify the treaty which it has
    signed is without basis. The signature does not signify the final consent of
    the state to the treaty. It is the ratification that binds the state to the
    provisions thereof. In fact, the Rome Statute itself requires that the signature
    of the representatives of the states be subject to ratification, acceptance or
    approval of the signatory states. Ratification is the act by which the
    provisions of a treaty are for
    mally confirmed and approved by a State. By ratifying a treaty signed in its
    behalf, a state expresses its willingness to be bound by the provisions of such
    treaty. After the treaty is signed by the state’s representative, the President, being
    accountable to the people, is burdened with the responsibility and the duty to
    carefully study the contents of the treaty and ensure that they are not inimical to
    the interest of the state and its people. Thus, the President has the discretion even
    after the signing of the treaty by the Philippine representative whether or not to
    ratify the same. The Vienna Convention on the Law of Treaties does not
    contemplate to defeat or even restrain this power of the head of states. If that were
    so, the requirement of ratification of treaties would be pointless and futile. It has
    been held that a state has no legal or even moral duty to ratify a treaty which has
    been signed by its plenipotentiaries. There is no legal obligation to ratify a treaty,
    but it goes without saying that the refusal must be based on substantial grounds
    and not on superficial or whimsical reasons. Otherwise, the other state would be
    justified in taking offense.
    Same;  Same; Same;  It is within the authority of the President to refuse to
    submit a treaty to the Senate or, having secured its consent for its ratification,
    refuse to ratify it.—It should be emphasized that under our Constitution, the power
    to ratify is vested in the President, subject to the concurrence of the Senate. The
    role of the Senate, however, is limited only to giving or withholding its consent, or
    concurrence, to the ratification. Hence, it is within the authority of the President to
    refuse to submit a treaty to the Senate or, having secured its consent for its
    ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which
    has been signed in its behalf is a serious step that should not be taken lightly, such
    decision is within the competence of the President alone, which cannot be
    encroached by this Court via a writ of mandamus. This Court has no jurisdiction over
    actions seeking to enjoin the President in the performance of his official duties. The
    Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners
    as it is beyond its jurisdiction to compel the executive branch of the government to
    transmit the signed text of Rome Statute to the Senate.

    The Rome Statute established the International Criminal Court which


    “shall have the power to exercise its jurisdiction over persons for the most
    serious crimes of international concern x x x and shall be complementary to
    the national criminal jurisdictions.”  Its jurisdiction covers the crime of
    1

    genocide, crimes against humanity, war crimes and the crime of aggression
    as defined in the Statute.  The Statute was opened for signature by all states
    2

    in Rome on July 17, 1998 and had remained open for signature until
    December 31, 2000 at the United Nations Headquarters in New York. The
    Philippines signed the Statute on December 28, 2000 through Charge d’
    Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.  Its 3

    provisions, however, require that it be subject to ratification, acceptance or


    approval of the signatory states. 4

    final consent of the state to the treaty. It is the ratification that binds the
    state to the provisions thereof. In fact, the Rome Statute itself requires that
    the signature of the representatives of the states be subject to ratification,
    acceptance or approval of the signatory states. Ratification is the act by
    which the provisions of a treaty are formally confirmed and approved by a
    State. By ratifying a treaty signed in its behalf, a state expresses its
    willingness to be bound by the provisions of such treaty. After the treaty is
    signed by the state’s representative, the President, being accountable to the
    people, is burdened with the responsibility and the duty to carefully study
    the contents of the treaty and ensure that they are not inimical to the
    interest of the state and its people. Thus, the President has the discretion
    even after the signing of the treaty by the Philippine representative whether
    or not to ratify the same. The Vienna Convention on the Law of Treaties does
    not contemplate to defeat or even restrain this power of the head of states. If
    that were so, the requirement of ratification of treaties would be pointless
    and futile. It has been held that a state has no legal or even moral duty to
    ratify a treaty which has been signed by its plenipotentiaries.  There is no
    18

    legal obligation to ratify a treaty, but it goes without saying that the refusal
    must be based on substantial grounds and not on superficial or whimsical
    reasons. Otherwise, the other state would be justified in taking offense. 19

    It should be emphasized that under our Constitution, the power to ratify is


    vested in the President, subject to the concurrence of the Senate. The role of
    the Senate, however, is limited only to giving or withholding its consent, or
    concurrence, to the ratification.  Hence, it is within the authority of the
    20

    President to refuse to submit a treaty to the Senate or, having secured its
    consent for its ratification, refuse to ratify

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