H. Diplomatic power

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

Frequency: ★★★★☆ | Probability: ★★★☆☆

President – as sole organ and authority in external relations. 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. (Pimentel, Jr. v. Romulo, En Banc, G.R. No. 158088, 06 July 2005)

1. Treaty

a. President: Sole authority

President – sole authority in treaty-making. In the realm of treaty-making, the President has the sole authority to negotiate with other states. (Ibid.)

b. Concurrrence of Senate

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. (Section 21, Article VII, 1987 Constitution)

2/3 concurrence of Senate. 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. (Ibid.)

Purpose. 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. (Ibid.)

c. Process of treaty-making

The usual steps in the treaty-making process are:

1) Negotiation

2) Signature

3) Ratification

4) Exchange of the instruments of ratification. (Pimentel, Jr. v. Romulo, supra, citing Justice Isagani Cruz, International Law)

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. (Ibid.)

1) Negotiation

By heads of state or their representatives. 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. (Ibid.)

2) Signature

Authentication, good faith. 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. (Ibid.)

Signature – not final consent. The Philippines is not bound under treaty law and international law to ratify the treaty which it has signed. 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. (Pimentel, Jr. v. Romulo, supra.)

3) Ratification

Formal act of confirmation. 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. (Ibid.)

Signing v. Ratification. The signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process.

Same; Signing. 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. (Pimentel, Jr. v. Romulo, supra.)

Same; Ratification. 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. (Ibid.)

Ratification – binds a state. 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. (Ibid.)

Same; No ratification, no legal effect. 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. (Ibid.)

Same; President & 2/3 Senate – power to ratify. Under the 1987 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. (Ibid.)

Presidential privilege; Political question. 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 the Court via a writ of mandamus. (Ibid.)

Pimentel, Jr. v. Romulo (2005)
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.

4) Exchange of the instruments of ratification

Usually signifies effectivity of treaty. 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. (Pimentel, Jr. v. Romulo, supra, citing Justice Isagani Cruz, International Law)

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BAR EXAM QUESTION

(Question B.16, Political Law, 2019 Bar Exam)

Under the 1987 Constitution, to whom does each duty /power /privilege /prohibition /disqualification apply:

(e) The power to ratify treaties and international agreements. (1%)

The President with the concurrence of the Senate

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2. Executive Agreement

Executive agreements may be validly entered into without the Senate’s concurrence. (Intellectual Property Association of the Philippines v. Ochoa, En Banc, G.R. No. 204605, 19 July 2016)

a. Treaty v. Executive Agreement

TreatyExecutive Agreement
International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. (Commissioner of Customs v. Eastern Sea Trading, No. L-14279, 31 October 1961)International agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements. (Ibid.)

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BAR EXAM QUESTION

(Question IX-C, Political Law, 2017 Bar Exam)

The President signs an agreement with his counterpart in another country involving reciprocity in the treatment of each country’s nationals residing in the other’s territory. However, he does not submit the agreement to the Senate for concurrence.

Sec. 21, Art. VII of the Constitution provides that no treaty or international agreement shall be valid and effective without such concurrence.

Is the agreement signed by the President effective despite the lack of Senate concurrence? Explain your answer. (4%)

Suggested Answer:

Yes. Answer

Under jurisprudence, executive agreements may be validly entered into without the Senate’s concurrence. Rule

In the case at bar, the President entered into an executive agreement and not a treat. Accordingly, Senate concurrence is not necessary. Apply

Thus, the agreement signed by the President is effective despite the lack of Senate concurrence. Conclusion

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