SC petitions vs ICC withdrawal are baseless

“By way of converse, when the president does not ratify a treaty, the adjunct power of the Senate to concur does not exist”

On March 14, 2018, President Rodrigo Duterte announced that the Philippines is withdrawing its inclusion in the Rome Statute, the treaty that established the International Criminal Court (ICC). The Rome Statute was signed in 1998 and took effect in 2002. It was ratified by the Philippines only in 2011.

Under the treaty, the ICC can try four core international crimes, namely, genocide, crimes against humanity, war crimes, and international aggression. The ICC can try a case brought to it only if the member-state concerned is unable or is unwilling to investigate and resolve the crime.

President Duterte’s decision to withdraw the country’s membership in the Rome Statute came after an ICC prosecutor began conducting an examination into the numerous deaths Duterte’s critics attributed to the president’s total war against narcotics, a war the president promised to wage when he was campaigning for the presidency.

As expected, the president’s highly opinionated critic, Senator Antonio Trillanes IV, denounced the withdrawal. Trillanes said that under the Constitution, no treaty or international agreement shall be valid unless concurred in by at least two-thirds of the incumbent senators. From that, Trillanes sweepingly concluded that if the nod of the Senate is needed for the country to enter into a treaty, then the nod of the Senate is also needed for the country to get out of a treaty.

Senator Aquilino Pimentel III disagreed. He said that there is nothing in the Constitution which explicitly requires the prior consent of the Senate before the president can withdraw the country from a treaty.

Last month, six senators opposed to President Duterte filed in the Supreme Court a petition to declare “invalid and ineffective” the move taken by the president. The petition alleged that the withdrawal of the Philippines from the Rome Statute is illegal because, following Trillanes’ argument, it does not have the concurrence of two-thirds of the members of the Senate.

A second, similar petition was filed at the Supreme Court last June 13 by a self-styled coalition for the ICC led by former Commission on Human Rights chairman Loretta Rosales. Although the coalition’s petition adopted the Trillanes view, it raised other arguments.

It is argued that under international law, the Rome Statute is a peremptory norm, which allegedly means that a signatory-country like the Philippines cannot pass a law that will violate it. Another argument is that the withdrawal initiated by President Duterte cannot override a local law, namely, Senate Resolution No. 546, by which the Senate expressed its concurrence in the ratification of the Rome Statute in 2011. A third argument is that under Republic Act No. 9851, enacted in 2009, otherwise known as the “Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity,” the Philippines is mandated to allow investigations in the Philippines undertaken by the ICC.

The arguments raised in both petitions are groundless.

Section 21, Article VI of the 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.” According to a decision of the Supreme Court released in 2005, the power to ratify a treaty is vested in the President, subject to the concurrence of the Senate.

A treaty is an international agreement which binds a country that is a signatory to it. Precisely because of its binding nature, a treaty is expected to be onerous, which means that the country concerned, the Philippines in this case, is expected to fulfill certain obligations. Since those obligations will be a burden to the Philippines, the Constitution of the Philippines requires the Senate to concur, by a two-thirds vote, to make the treaty binding on the Philippines.

It is entirely different, however, when the Philippines wants out of a treaty. Withdrawal from a treaty essentially leads to the elimination of whatever obligations the Philippines was bound to comply with under that treaty. A withdrawal means there are no more treaty obligations to bind the Philippines. There being no more treaty to speak of, there is nothing for the Senate to concur in. This is why the Constitution carries no provision that requires Senate concurrence when the president wants out of a treaty.

The power of the Senate to concur in a treaty is a mere adjunct of the power of the president to ratify a treaty. When the president ratifies a treaty, the adjunct power of the Senate to concur exists. By way of converse, when the president does not ratify a treaty, the adjunct power of the Senate to concur does not exist. Thus put, when the president wants to withdraw from a treaty, he is obviously not ratifying the same, and precisely for that reason, there is nothing for the Senate to concur in. An adjunct power cannot be exercised without the proper occasion to warrant the same.

It is incorrect to consider the Rome Statute as a peremptory norm. If it is peremptory, then why does the Rome Statute carry a provision which allows a signatory country to withdraw from it?

Senate Resolution No. 546 is not a law because it does not involve any participation of the House of Representatives. Since it is a not a law, it is not binding on the president.

Republic Act No. 9851 carries a provision that states that any international investigation shall be in accordance with, among others, “the applicable treaty.” In other words, this law can only operate if the Philippines remains bound to the Rome Statute.

It is also doubtful if the Supreme Court can intrude into foreign policy, which is what the petitions want to happen. As Harry Roque, President Duterte’s spokesman asserted, the president is the “architect of foreign policy” in the country. The president is in a better position to assess the nation’s foreign relations than the judiciary is.

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