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MALACAÑANG’S wish for early ratification of the Japan
Philippines Economic Partnership Agreement (Jpepa) ran
into another obstacle Wednesday after three senators
voiced doubts on the legality of a proposal by foreign
relations committee chairman Sen. Miriam Santiago for
the Senate to vote for conditional concurrence to the
controversial treaty.
Senate
Minority Leader Aquilino Pimentel Jr. and Sens. Juan
Ponce Enrile and Francis Escudero, who are also lawyers
like Santiago, asserted that there was no clear legal
basis for Santiago’s suggestion that senators concur
with the Jpepa on condition that Japan would accept a
side agreement to comply with at least 15 provisions of
the Philippine Constitution affected by the Jpepa.
“I don’t
agree with [extending] conditional concurrence. Either
we ratify the treaty, or we reject it,” Enrile told
reporters.
Pimentel
said he seriously doubts not just the validity of
imposing conditional concurrence to the treaty but also
whether Japan would accept the conditions on
constitutional compliance.
“Based
on the Philippine Senate’s experience, this is not how
we deal with a treaty; it is either you accept it or you
reject it.”
Citing
the Vienna convention on the law of treaties, Escudero
said he saw no legal basis for the conditional
concurrence being pushed by
Santiago.
“In my
view, conditional concurrence is tantamount to
rejection. If we are rejecting it, then let us reject
it. If we are accepting it, then let us ratify it,” he
pointed out.
Escudero
explained it might be necessary for the executive to
resort to backroom talks with
Japan
now to cure the objectionable provisions of the Jpepa to
improve its chances of being ratified by the Senate.
But
Santiago stood pat on the novel idea of extending
conditional concurrence to the Jpepa, dismissing her
colleagues’ statement this has never been done in the
Philippines. “I’ll simply have to educate them. They’re
afraid, because they don’t know about it. Fear is the
result of ignorance,” she said.
In a
separate interview, Senator Escudero contends the
procedure being endorsed by the Senate foreign relations
committee chairman recommending conditional concurrence
on the ratification of the Jpepa is of doubtful
legality.
“The
methodology the committee chose to take might be legally
flawed. Recommending a conditional ratification to my
mind is an outright rejection. If this is the path we’re
taking, then we better say it so. It’s either we accept
the treaty or we reject it flatly,” he said.
Escudero
argued that international laws, specifically the Vienna
Convention of 1969 on the Law of Treaties, do not
recognize conditional ratification. “If at all,
international laws provide that a reservation can be
made before the treaty could be done,” he said.
He added
that such reservations are essentially caveats to a
state’s acceptance of a treaty. In effect, it allows the
state to be a party to the treaty while excluding the
legal effect of that specific provision in the treaty to
which it objects.
He
pointed out that under the Vienna Convention on the Law
of Treaties, “a state, may, when signing, ratifying,
accepting, approving or acceding to a treaty, formulate
a reservation unless: (a) the reservation is prohibited
by the treaty and (b) the treaty provides that only
specified reservations which do not include the
reservation in question may be made” (Section 2, Article
19). He also noted that under the Jpepa, no prohibition
on reservation was provided under Article 94 of the
agreement’s General Provisions on Reservations.
“Why do
a conditional ratification, which, even the authors
admit, is a first for the Philippine Senate when
existing treaty and customary international law provide
that we can ratify the Jpepa subject to certain
reservations?” Escudero declared as he confirmed that he
won’t be signing the committee report for the simple
reason that he disagrees with the legal procedure and
methodology by which the recommendation was drawn in the
Senate.
“I am
not yet questioning the treaty itself. What I want to
scrutinize is the process by which we adopt a stand in
the senate. If it’s the first time that we will take a
shot at conditional ratification, there is nothing
extraordinary for anyone like me to cast doubts and
question the legal raison d’être of this approach,”
Escudero said.
“This
treaty will be our mirror in the international stage,
States will be watching at how we treat international
protocols and covenants. I think it is but prudent that
we take actions in accordance with well-settled
practices under international law so as not to lose face
and offend anyone,” he added. |
