Sen. Pimentel vs. Executive Secretary

Senator Aquilino Pimentel, Jr., et al. vs. Office of the Executive Secretary, et al.

Facts:

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 xxx and shall be complementary to the national criminal jurisdictions.” Its jurisdiction covers the crime of 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 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 provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.

Petitioners filed the instant petition to compel the respondents — the Office of the Executive Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate of the Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.

respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence.

only Senator Pimentel has the legal standing to file the instant suit. The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts.

Issue:

The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President.

Held:

The Supreme Court ruled in the negative.

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.”

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.

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate. The Supreme Court disagrees.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even “collapse” in case the parties are unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.

The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.

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. Executive Order No. 459 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.

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 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 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.

Petition is DISMISSED.

The International Criminal Court

Official Website: http://www.icc-cpi.int/home.html

The Rome Statute [PDF Format]: http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf

The State Parties to the Rome Statute: http://www.icc-cpi.int/statesparties.html


THE INTERNATIONAL CRIMINAL COURT

• the court is an independent, permanent court that tries persons accused of the most serious crimes of international concern;

• these crimes are namely: genocide, crimes against humainity, war crimes and aggression;

• this Court is established by the Rome Statute treaty;

• the treaty was called such since it was adopted in Rome in July 17, 1998 and have entered into force in July 1, 2002;

• the ICC is based on that treaty joined by originally 60 States;

• as of July 2008, a total of 106 countries have become Parties to the Rome Statute;

• sadly, the Philippines was a signatory to the treaty;

• the Rome Statute is an international treaty, binding only on those States which formally express their consent to be bound by its provisions;

• it is no surprise that the United States of America was not a signatory thereto considering their leaders are such abusive war freaks;

• It is a court of last resort, meaning, it will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine;

• not genuine proceeding consists of shielding of person concerned, unjustified delay and the proceeding in the national court was not impartially conducted;

• the ICC has four organs, to wit, the Presidency, the Judiciary Divisions, the Office of the Prosecutor and the Registry;

• the Presidency consists of the President[currently Philippe Kirsch from Canada], the First Vice-President [currently Akua Kuenyehia from Ghana] and the Second Vice-President [currently Rene Blattmann from Bolivia];

• the Presidency is responsible for the proper administration of the Court, with the exception of the Office of the Prosecutor. However, the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern;

• the Judiciary Divisions of the ICC are the: Pre-trial division, Trial Division and the Appeals division;

• the Appeals Division is composed of the President and four other judges, the Trial Division of the Second Vice President and five other judges, and the Pre-Trial Divisions of the First Vice President and six other judges;

• the Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court;

• the Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor;

• the Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council;

• the official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere;a

ICMC vs. Calleja

International Catholic Migration Commission vs. Calleja [GR 85750, Sept. 28, 1990]

Facts:

An Agreement was forged between the Philippine Government and the United Nations High Commissioner for Refugees [Vietnamese refugees of the Vietnam War] whereby an operating center for processing Indo-Chinese refugees for eventual resettlement to other countries was to be established in Bataan.

ICMC was one of those accredited by the Philippine Government to operate the refugee processing center in Morong, Bataan. It was incorporated in New York, USA, at the request of the Holy See, as a non-profit agency involved in international humanitarian and voluntary work. It is duly registered with the United Nations Economic and Social Council (ECOSOC) and enjoys Consultative Status, Category II. As an international organization rendering voluntary and humanitarian services in the Philippines.

Trade Unions of the Philippines and Allied Services (TUPAS) filed with the then Ministry of Labor and Employment a Petition for Certification Election among the rank and file members employed by ICMC. The latter opposed the petition on the ground that it is an international organization registered with the United Nations and, hence, enjoys diplomatic immunity.

Director Pura Calleja of the Bureau of Labor Relations (BLR), reversed the Med-Arbiter's Decision and ordered the immediate conduct of a certification election. At that time, ICMC's request for recognition as a specialized agency was still pending with the Department of Foreign Affairs (DEFORAF).

Subsequently, DEFORAF, granted ICMC the status of a specialized agency with corresponding diplomatic privileges and immunities, as evidenced by a Memorandum of Agreement between the Government and ICMC. ICMC then sought the immediate dismissal of the TUPAS Petition for Certification Election sustaining the affirmative of the proposition.

Issue:

Is the grant of diplomatic privileges and immunites to ICMC is proper?

Held:

The foregoing opinions constitute a categorical recognition by the Executive Branch of the Government that ICMC and IRRI enjoy immunities accorded to international organizations, which determination has been held to be a political question conclusive upon the Courts in order not to embarrass a political department of Government.

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government . . . or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction.

Marcos vs. Manglapus

MARCOS vs. MANGLAPUS [GR 88211, Sept. 15, 1989]

Facts:

Ferdinand E. Marcos who was deposed from his seat through the EDSA people power revolution was forced into exile in 1986 and Corazon C. Aquino was declared President of the Republic under a revolutionary government. When Marcos was dying, he wished to return to the country along with his family but Pres. Aquino stood in his way and contended that Marcos cannot return to the country considering that his return would be a threat to the stability of the government and the country’s economy.

The Marcoses assert that their right to return to the country is guaranteed by the Bill of Rights of the 1987 Constitution and that under international law, the right of Marcos and his family to return to the Philippines is guaranteed by the Universal Declaration of Human Rights.

Issue:

Are the Marcoses correct in asserting their right to return to the country?

Held:

The Supreme Court held that the president, as part of her residual power, can ban the return of Marcos and his family to the country considering the consequences which could pose a serious threat to national interest and welfare of the country. The Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one's country in the same context as those pertaining to the liberty of abode and the right to travel.

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people.

The Wilson/Tobar Doctrine

Tobar Doctrine that grew out of the treaties written among the Central American republics in 1907 and renewed in 1923. Designed to discourage revolutions, these provided that the parties "shall not recognize any other Government which may come into power in any of the five Republics as a consequence of a coup d'etat, or of a revolution against the recognized Government, so long as the freely elected representatives of the people thereof have not constitutionally reorganized the country." They also disqualified the leaders of a coup d'état from assuming the presidency or vice presidency. The United States applied the doctrine to the revolutionary leader Federico Tinoco in Costa Rica in 1917, to Honduras in 1924, and to the government of Emiliano Chamorro of Nicaragua in 1925, thereby giving extreme expression to Jefferson's "will of the nation substantially declared," perhaps out of fear that dictatorships and revolutionary governments posed a danger for international peace.

States may withhold recognition or withdraw it in order to punish regimes they regard as illegitimate and those guilty of illegal conduct. In either case the executive, legislative, and judicial acts of an offender are treated as nonexistent. Treaties with the offender can be suspended, and foreign forces may be admitted to aid rebels against it. It may be rejected as a plaintiff in foreign courts and denied property situated abroad. Secretary of State Seward refused to recognize a revolutionary government in Peru in 1868; at the request of the Wilson administration a number of states rescinded their recognition of the Mexican government of Victoriano Huerta in 1918; still others refused to recognize the state of Manchukuo that Japan created in Manchuria on 18 February 1932. The major reason for recognizing the Soviet Union in 1933 was the (vain) hope that trade with it would help the United States climb out of the Great Depression.

Source: http://www.americanforeignrelations.com/O-W/Recognition.html

The Stimson Doctrine

The Stimson Doctrine is a policy of the United States federal government, enunciated in a note of January 7, 1932 to Japan and China, of non-recognition of international territorial changes effected by force.

Named after Henry L. Stimson, United States Secretary of State in the Hoover Administration (1929–1933), the policy followed Japan's unilateral seizure of Manchuria in northeastern China following action by Japanese soldiers at Mukden (now Shenyang), on September 18, 1931.

The principles of this doctrine were also used in the U.S. Under Secretary of State Sumner Welles's declaration of July 23, 1940, on the non-recognition policy of the Soviet annexation and incorporation of three Baltic countries — Estonia, Latvia, and Lithuania. These principles were still applied until the restoration of independence of these three Baltic nations in August 1991.

The Japanese military occupation of Manchuria in late 1931 placed U.S. Secretary of State Henry L. Stimson in a difficult position. It was evident that appeals to the spirit of the Kellogg-Briand Pact had no impact on either the Chinese or the Japanese, and the secretary was further hampered by President Hoover’s clear indication that he would not support economic sanctions as a means to bring peace in the Far East.

On January 7, 1930, Secretary Stimson sent identical notes to China and Japan that incorporated a diplomatic approach used by earlier secretaries facing crises in the Far East. Later known as the Stimson Doctrine, or sometimes the Hoover-Stimson Doctrine, the notes read in part as follows:

[T]he American Government deems it to be its duty to notify both the Imperial Japanese Government and the Government of the Chinese Republic that it cannot admit the legality of any situation de facto nor does it intend to recognize any treaty or agreement entered into between those Governments, or agents thereof, which may impair the treaty rights of the United States or its citizens in China, including those which relate to the sovereignty, the independence, or the territorial and administrative integrity of the Republic of China, or to the international policy relative to China, commonly known as the open door policy….

Stimson had stated that the United States would not recognize any changes made in China that would curtail American treaty rights in the area and that the "open door" must be maintained. The Japanese, however, were not dissuaded by non-recognition and continued their aggression, confident that the U.S. would not take stronger action because of the heavy economic restrictions of the Depression.

By early 1932, some American newspapers were critical of the secretary’s tepid response to the Manchurian crisis, but many citizens felt that the doctrine’s idealistic, but non-threatening, tone was exactly right. Most Americans were probably far more sympathetic to China, but did not want to provoke Japan. Memories of American losses in foreign war were still fresh.

Source: http://www.edk.edu

The Estrada Doctrine

A recognition of states approach, also known as the Estrada doctrine, is a development on the earlier recognition of governments approach whereby a government would recognize another governments. This caused political problems following an unconstitutional change in the government of another state.

It is the policy of recognizing states rather than governments. It is an alternative to the method of express recognition, in which an express statement is made according or withholding recognition after each unconstitutional change of government, and tacit recognition in which, only under exceptional circumstances, is a recognition statement made.

It was first enunciated by Mexico's foreign minister Genaro Estrada, in 1930.

Source: http://www.search.com/reference/Recognition_of_states_approach