May President Duterte unilaterally abrogate the Visiting Forces Agreement without the consent of the Senate?
The question arose yesterday after Mr. Duterte angrily warned he will do precisely that if the Americans do not “correct” the cancellation of the US visa earlier issued to a close ally, Senator Ronald “Bato” de la Rosa.
In fact, it is not a novel one, but one that has remained unanswered by the courts.
Mr. Duterte’s latest outburst recalls his decision on March 17, 2018 to withdraw our membership in the International Criminal Court (ICC) after ICC Prosecutor Fatou Bensouda announced the opening of a preliminary examination on his bloody drug war a month earlier.
Her announcement also earned Prosecutor Bensouda heaps of abuse from Mr. Duterte’s acerbic tongue, which called her racist epithets and threatened her and her investigators with arrest the moment they set foot on Philippine soil.
Two petitions to challenge the constitutionality of Mr. Duterte’s abrupt retreat from membership in the international tribunal have remained pending, even after the Philippine withdrawal from the Rome Statute that established the ICC had become effective on March 18, 2019.
Joint or sole responsibility?
“In the framework of our Constitution,” so said the US Supreme Court in the 1952 case of Youngstown Sheet & Tube Company, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
The petitioners’ contention is that foreign relations under our Constitution is now a shared power. The President signs a treaty, and the Senate concurs, under Article VII, Sec. 21 of the 1987 Charter. “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,” says the provision.
This Executive-Legislative dynamic on the transformation of international law into Philippine law is a principle built into our constitutional system of checks and balances, and the separation of powers.
The government’s counter-argument is that the language of the Constitution itself only speaks of the process of concurrence in a treaty. There is nothing there that says the two-step procedure also applies in a situation where the Chief Executive decides it is not in our best interest to remain bound to an international obligation.
Instead, any question of foreign relations belongs only to the President, its chief architect, and no one else, the Office of the Solicitor General argued.
As Philippine National Police Chief before he entered politics, it fell on the shoulders of Mr. de la Rosa to implement Operation Tokhang, Mr. Duterte’s bloody drug war, which has already claimed the lives of thousands three years later.
What got Mr. Duterte’s goat is not that Senator de la Rosa’s US visa was cancelled, but that it was apparently the consequence of the Asia Reassurance Initiative Act (ARIA), signed by US President Donald Trump in December 2018.
ARIA advances a “Free and Open Indo-Pacific” policy based on national security interest of the United States to promote “human rights and respect for democratic values in the Indo-Pacific region.” The law specifically references the Philippines over “disturbing reports of extrajudicial killings.”
It is of a piece with the older Magnitsky Act, a law authorizing the US government to sanction those who it sees as human rights offenders by freezing their assets, and banning them from entering the U.S.
Acting on rumors of his US visa cancellation for that reason, Mr. de la Rosa had written the US embassy to seek a confirmation. And he got precisely that, but the US Embassy did not tell him why it was so.
To be sure, Mr. Duterte meets his match in the US President, Donald Trump, a man who, like him, has shown little regard for the sort of Post-World War II international rules that, arguably, have made international relations less chaotic than would have been possible.
In his first two years in office, Mr. Trump had given the world a brutal tour de force of what he thinks of such rules: without seeking the consent of the Senate, he abrogated US commitments to the Paris Protocol on Climate Change and to the Iran Nuclear Deal (much to the chagrin of France, Germany, and Russia); he now also threatens to shut down the World Trade Organization Appellate Body – the very heart of its international trade dispute system – by repeatedly blocking the process to nominate new judges to already vacated posts.
Mr. Trump also did a Duterte, revoking the diplomatic visa issued to Prosecutor Bensouda following her announcement of a preliminary examination on US culpability in war crimes allegedly committed in Afghanistan.
In fact, after he signed ARIA into law, Mr. Trump issued a statement expressing precisely the view that he will not be impeded by the other branches of government in implementing the new law: the statement said that his Administration “will treat these provisions consistent with the President’s exclusive constitutional authorities as Commander in Chief and as the sole representative of the United States in foreign affairs.”
Still there is the ARIA sanction on Mr. de la Rosa, which is to say it isn’t an instrument of pure altruism either, given Mr. Trump’s own rejection of the ICC (to be fair, one not markedly different from the tack taken by his Republican predecessors –Bush Sr. and Jr. )
ARIA authorizes Mr. Trump to impose “targeted financial penalties and visa ban sanctions, in accordance with applicable law and other relevant authorities, on any individual or entity that--(1) violates human rights or religious freedoms; or (2) engages in censorship activities.”
It specifically provides that US officials may not provide counter-narcotics assistance to the PNP unless the Philippines adopts a strategy “consistent with international human rights standards, including investigating and prosecuting individuals who are credibly alleged to have ordered, committed, or covered up extrajudicial killings and other gross violations of human rights in the conduct of counternarcotics operations.”
The cancellation of Mr. de la Rosa’s visa has come as the US attempts to recover lost ground in the Indo-Pacific region – an area spanning the Pacific Ocean to the Indian sub-continent, including Southeast Asia.
It is not mere coincidence that a major feature of ARIA is a framework for strategic engagement with the Association of Southeast Asian Nations (ASEAN).
Under ARIA, the US will “conduct, as part of its global Freedom of Navigation Program, regular freedom of navigation, and overflight operations in the Indo-Pacific region, in accordance with applicable international law; and (2) to promote genuine multilateral negotiations to peacefully resolve maritime disputes in the South China Sea, in accordance with applicable international law.”
Of course, Mr. Duterte’s pivot to China stands in the way of this new US strategy. Mr. Duterte is very much aware of this. And he knows the right button to press. In this case, the one that says “VFA”.
The VFA is a set of three documents governing treatment of visiting US troops in the country. It exempts US military forces from Philippine visa and passport regulations, and lays down rules on jurisdiction over crimes committed by US personnel on Philippine soil.
Since the Senate concurred with the VFA in 1999, it had weathered three constitutional challenges before the Supreme Court: Bayan v Zamora (2000); Lim v Executive Secretary (2002); and Nicholas v Romulo (2009).
But really, Mr. Duterte could have gone for the jugular – the 1951 Philippine-US Mutual Defense Treaty, or even the 2014 Enhanced Defense Cooperation Agreement (EDCA), which allows the prepositioning of US military equipment and supplies in Philippine bases.
But he didn’t. It was no ill-advised outburst. It was in fact, a carefully calibrated one.
ABOUT THE AUTHOR:
*Romel Regalado Bagares studied at the University of the Philippines and the Vrije Universiteit Amsterdam. He teaches public international law at Lyceum Philippines University and is an officer of the Philippine Society of International Law. The views in this essay are all his and do not reflect those of any of his affiliations.
(VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”)