by Joy Louise T. Evidente
π ππππ: On March 15, 2018, the Republic of the Philippines announced its withdrawal from the International Criminal Court (ICC). The State formally submitted its Notice of Withdrawal through a Note Verbale to the United Nations Secretary General’s Chef de Cabinet. The ICC acknowledged the Philippines’ action soon after it had withdrawn. Accordingly, through these actions, the Philippines completed the requisite acts of withdrawal. This was all consistent and in compliance with what the Rome Statute plainly requires. By this point, all that were needed to enable withdrawal have been consummated.
In G.R. No. 238875, petitioners-senators argue that, as a treaty that the Philippines validly entered into, the Rome Statute “has the same status as an enactment of Congress,” as “a law in the Philippines.” They aver that the country’s withdrawal from a treaty requires the concurrence of at least two-thirds of the Senate.
In G.R. No. 239483, petitioner Philippine Coalition for the International Criminal Court and its members assert that their rights to life, personal security, and dignity were impaired by the withdrawal from the Rome Statute.
Respondents maintain that the withdrawal was valid for having complied with the Rome Statute, which requires only a written notification of withdrawal. They argue that the petitions do not present a justiciable controversy because withdrawal from a treaty is a political question and that the Constitution does not expressly require Senate concurrence for a withdrawal to be valid.
πππππ: Does the President have the power to unilaterally withdraw from a treaty?
ππππππ: No, the President cannot unilaterally withdraw in international agreements entered into pursuant to congressional imprimatur.
Consistent with the mirror principle, any withdrawal from an international agreement must reflect how it was entered into. As the agreement was entered pursuant to congressional imprimatur, withdrawal from it must likewise be authorized by a law.
The Philippines’ withdrawal was submitted in accordance with relevant provisions of the Rome Statute. The President complied with the provisions of the treaty from which the country withdrew. There cannot be a violation of pacta sunt servanda when the executive acted precisely in accordance with the procedure laid out by that treaty.
From its text, the Rome Statute provides no room to reverse the accepted withdrawal from it. While there is a one-year period before the withdrawal takes effect, it is unclear whether we can read into that proviso a permission for a state party to rethink its position, and retreat from its withdrawal.
Until the withdrawal took effect on March 17, 2019, the Philippines was committed to meet its obligations under the Rome Statute. Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court.
As guide for future cases, this Court recognizes that, as primary architect of foreign policy, the President enjoys a degree of leeway to withdraw from treaties which are bona fide deemed contrary to the Constitution or our laws, and to withdraw in keeping with the national policy adopted pursuant to the Constitution and our laws.
However, the President’s discretion to withdraw is qualified by the extent of legislative involvement on the manner by which a treaty was entered into or came into effect. The President cannot unilaterally withdraw from treaties that were entered into pursuant to the legislative intent manifested in prior laws, or subsequently affirmed by succeeding laws. Treaties where Senate concurrence for accession is expressly premised on the same concurrence for withdrawal likewise cannot be the subject of unilateral withdrawal. The imposition of Senate concurrence as a condition may be made piecemeal, through individual Senate resolutions pertaining to specific treaties, or through encompassing legislative action, such as a law, a joint resolution by Congress, or a comprehensive Senate resolution.
Nonetheless, the exercise of discretion to withdraw from treaties and international agreements is susceptible to judicial review in cases attended by grave abuse of discretion, as when there is no clear, definite, or reliable showing of repugnance to the Constitution or our statutes, or in cases of inordinate unilateral withdrawal violating requisite legislative involvement.
The Barrister 