Based on the Lectures of Atty.
Gil Garcia II
PANGILINAN VS. CAYETANO
G.R. No. 238875, March 16, 2021
The Rome Statute is a multilateral treaty that established the International Court, where the gravest
crimes under international law are prosecuted. On December 28, 2000, the Philippines, through then
President Joseph Ejercito Estrada, signed the Rome Statute of the International Criminal Court. President
Estrada's act of signing the Rome Statute signified the Philippines' intent to be bound by the provisions of
the treaty, subject to Senate Concurrence.
On December 11, 2009, with Senate concurrence to the Rome Statute still pending, then President Gloria
Macapagal-Arroyo signed into law Republic Act No. 9851, otherwise known as the Philippine Act on
Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. Republic
Act No. 9851 replicated many of the Rome Statute's provisions. Senate concurrence to the Rome Statute
was obtained on August 23, 2011.
On August 30, 2011, the Philippines deposited the instrument of ratification of the Rome Statute. On
November 1, 2011, the Rome Statute entered into force in the Philippines. However, on March 16, 2018,
the Philippines formally submitted its Notice of Withdrawal from the International Criminal Court to the
United Nations. On March 17, 2018, the Secretary-General of the United Nations received the notification
from the Philippine government.
Petitioners filed consolidated Petitions for Certiorari and Mandamus seeking to:
a. declare the Philippines’ withdrawal from the Rome Statute as invalid or ineffective, since it was
done without the concurrence of at least two-thirds of all the Senate’s members; and
b. Compel the executive branch to notify the United Nations Secretary-General that it is canceling,
revoking, and withdrawing the Instrument of Withdrawal.
Petitioners maintain that the Instrument of Withdrawal is inconsistent with the Constitution.
Senator Pangilinan would manifest in the oral arguments incidents relating to Senate Resolution No. 289,
a "Resolution Expressing the Sense of the Senate that Termination of, or Withdrawal from, Treaties and
International Agreements Concurred in by the Senate shall be Valid and Effective Only Upon
Concurrence by the Senate."
Limits to the President’s Treaty-Making Power
The president, as primary architect of foreign policy, negotiates and enters into international agreements.
However, the president's power is not absolute, but is checked by the Constitution, which requires Senate
concurrence. Treaty-making is a power lodged in the executive, and is balanced by the legislative branch.
The textual configuration of the Constitution hearkens both to the basic separation of powers and to a
system of checks and balances.
Presidential discretion is recognized, but it is not absolute.
While no constitutional mechanism exists on how the Philippines withdraws from an international
agreement, the president's unbridled discretion vis-à-vis treaty abrogation may run counter to the basic
prudence underlying the entire system of entry into and domestic operation of treaties.
Is Senate concurrence needed should the President withdraw from a treaty?
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Based on the Lectures of Atty. Gil Garcia II
It depends. While Senate concurrence is expressly required to make treaties valid and effective, no
similar express mechanism concerning withdrawal from treaties or international agreements is provided in
the Constitution or any statute. Similarly, no constitutional or statutory provision grants the president the
unilateral power to terminate treaties.
These are the Guiding Principles:
1. The President can withdraw from agreements which he or she determines to be contrary to the
Constitution or statutes;
2. The President cannot unilaterally withdraw from agreements which were entered into pursuant to
congressional imprimatur;
3. The President cannot unilaterally withdraw from international agreements where the Senate
concurred and expressly declared that any withdrawal must also be made with its concurrence.
Principle #1: The President can withdraw from agreements which he or she determines to be
contrary to the Constitution or statutes
The validity and effectivity of a treaty rests on its being in harmony with the Constitution and statutes. The
Constitution was ratified through a direct act of the sovereign Filipino people voting in a plebiscite;
statutes are adopted through concerted action by their elected representatives.
Treaties cannot contravene the Constitution.
The Constitution mandates that the president must "ensure that the laws be faithfully executed." Both in
negotiating and enforcing treaties, the President must ensure that all actions are in keeping with the
Constitution and statutes.
Accordingly, during negotiations, the president can insist on terms that are consistent with the
Constitution and statutes, or refuse to pursue negotiations if those negotiations' direction is such that the
treaty will turn out to be repugnant to the Constitution and our statutes. Moreover, the president should
not be bound to abide by a treaty previously entered into should it be established that such treaty runs
afoul of the Constitution and our statutes.
Treaties cannot contravene Statutes
When repugnant to statues enacted by Congress, treaties and international agreements must give way.
Article VII, Section 21 provides for legislative involvement in making treaties and international agreements
valid and effective, that is, by making Senate concurrence a necessary condition.
From this, two points are discernible:
1. that there is a difference in the extent of legislative participation in enacting laws as against
rendering a treaty or international agreement valid and effective; and
2. that Senate concurrence, while a necessary condition, is not in itself a sufficient condition for the
validity and effectivity of treaties.
In enacting laws, both houses of Congress participate. Only after extensive participation by the people's
elected representatives—members of the Senate who are elected at large, and, those in the House of
Representatives who represent districts or national, regional, or sectoral party-list organizations—is a bill
presented to the president for signature.
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Based on the Lectures of Atty. Gil Garcia II
In contrast, in the case of a treaty or international agreement, the president, or those acting under their
authority, negotiates its terms. It is merely the finalized instrument that is presented to the Senate alone,
and only for its concurrence. Following the president's signature, the Senate may either agree or disagree
to the entirety of the treaty or international agreement. It cannot refine or modify the terms. It cannot
improve what it deems deficient, or tame apparently excessive stipulations.
The legislature's highly limited participation means that a treaty or international agreement did not
weather the rigors that attend regular lawmaking. It is true that an effective treaty underwent a special
process involving one of our two legislative chambers, but this also means that it bypassed the
conventional republican mill.
Having passed scrutiny by hundreds of the people's elected representatives in two separate chambers
which are committed—by constitutional dictum—to adopting legislation, statutes enacted by Congress
necessarily carry greater democratic weight than an agreement negotiated by a single person. This is
true, even if that person is the chief executive who acts with the aid of unelected subalterns.
Thus, a valid treaty or international agreement may be effective just as a statute is effective. It has the
force and effect of law.
Still, statutes enjoy preeminence over international agreements. In case of conflict between a law and a
treaty, it is the statute that must prevail.
Also, a treaty cannot amend a statute. When the president enters into a treaty that is inconsistent with a
prior statute, the president may unilaterally withdraw from it, unless the prior statute is amended to be
consistent with the treaty. A statute enjoys primacy over a treaty.
Owing to the preeminence of statutes enacted by elected representatives and hurdling the rigorous
legislative process, the subsequent enactment of a law that is inconsistent with a treaty likewise allows
the president to withdraw from that treaty.
Principle #2: The President cannot unilaterally withdraw from agreements which were entered into
pursuant to congressional imprimatur
Considering that effecting treaties is a shared function between the executive and the legislative
branches, Congress may expressly authorize the president to enter into a treaty with conditions or
limitations as to negotiating prerogatives.
Similarly, a statute subsequently passed to implement a prior treaty signifies legislative approbation of
prior executive action. This lends greater weight to what would otherwise have been a course of action
pursued through executive discretion. When such a statute is adopted, the president cannot withdraw
from the treaty being implemented unless the statute itself is repealed.
When a treaty was entered into upon Congress's express will, the president may not unilaterally abrogate
that treaty. In such an instance, the president who signed the treaty simply implemented the law enacted
by Congress. While the president performed his or her function as primary architect of international policy,
it was in keeping with a statute.
The president had no sole authority, and the treaty negotiations were premised nor only upon his or her
own diplomatic powers, but on the specific investiture made by Congress. This means that the president
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Based on the Lectures of Atty. Gil Garcia II
negotiated not entirely out of his or her own volition, but with the express mandate of Congress, and more
important, within the parameters that Congress has set.
What is the mirror principle?
The mirror principle provides that “the degree of legislative approval needed to exit an international
agreement must parallel the degree of legislative approval originally required to enter it.”
Under the mirror principle, the Executive may terminate, without congressional participation, genuinely
"sole" executive agreements that have lawfully been made without congressional input. But the President
may not entirely exclude Congress from the withdrawal or termination process regarding congressional-
executive agreements or treaties that were initially concluded with considerable legislative input.
Consistent with the mirror principle, any withdrawal from an international agreement must reflect
how it was entered into. If an agreement was entered pursuant to congressional imprimatur, withdrawal
from it must likewise be authorized by a law.
Here, Congress passed Republic Act No. 9851 well ahead of the Senate's concurrence to the Rome
Statute. Republic Act No. 9851 is broader than the Rome Statute itself. This reveals not only an
independent, but even a more encompassing legislative will—even overtaking the course—of
international relations.
Our elected representatives have seen it fit to enact a municipal law that safeguards a broader scope of
rights, regardless of whether the Philippines formally joins the International Criminal Court through
accession to the Rome Statute.
Principle #3: The President cannot unilaterally withdraw from international agreements where the
Senate concurred and expressly declared that any withdrawal must also be made with its
concurrence.
The Senate may concur with a treaty or international agreement expressly indicating a condition that
withdrawal from it must likewise be with its concurrence.
It may also be that the Senate eventually indicated such a condition in a subsequent resolution.
Encompassing legislative action may also make it a general requirement for Senate concurrence to be
obtained in any treaty abrogation.
This may mean the Senate invoking its prerogative through legislative action taken in tandem with the
House of Representatives—through a statute or joint resolution—or by adopting, on its own, a
comprehensive resolution. Regardless of the manner by which it is invoked, what controls is the Senate's
exercise of its prerogative to impose concurrence as a condition.
In this case
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Based on the Lectures of Atty. Gil Garcia II
Senator Pangilinan manifested that the Senate has adopted this condition in other resolutions through
which the Senate concurred with treaties. However, the Senate imposed no such condition when it
concurred in the Philippines' accession to the Rome Statute.
Likewise, the Senate has yet to pass a resolution indicating that its assent should have been obtained in
withdrawing from the Rome Statute.
Summation of Principles
In sum, at no point and under no circumstances does the president enjoy unbridled authority to withdraw
from treaties or international agreements. Any such withdrawal must be anchored on a determination that
they run afoul of the Constitution or a statute. Any such determination must have clear and definite basis;
any wanton, arbitrary, whimsical, or capricious withdrawal is correctible by judicial review.
Moreover, specific circumstances attending Congress's injunction on the executive to proceed in treaty
negotiation, or the Senate's specification of the need for its concurrence to be obtained in a withdrawal,
binds the president and may prevent him or her from proceeding with withdrawal.
Was the Philippines’ withdrawal from the Rome Statute valid?
Yes. On March 15, 2018, the Philippines announced its withdrawal from the International Criminal Court.
On March 16, 2018, it formally submitted its Notice of Withdrawal through a Note Verbale to the United
Nations Secretary-General's Chef de Cabinet. The Secretary General received this communication the
following day, March 17, 2018.
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. Further, the International Criminal Court acknowledged the
Philippines' action soon after it had withdrawn. This foreclosed the existence of a state of affairs
correctible by this Court's finite jurisdiction.
Is the Philippines relieved of the effects of the treaty prior to its withdrawal?
No. Withdrawing from the Rome Statute does not discharge a state party from the obligations it has
incurred as a member.
Article 127(2) provides:
A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this
Statute while it was as a Party to the Statute, including any financial obligations which may have
accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal
investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and
which were commenced prior to the date on which the withdrawal became effective, nor shall it
prejudice in any way the continued consideration of any matter which was already under
consideration by the Court prior to the date on which the withdrawal became effective.
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.
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Based on the Lectures of Atty. Gil Garcia II
Conclusion
The International Criminal Court’s acknowledgment of withdrawal even before the lapse of one year from
initial notice, rendered the Petitions' moot, removing any potential relief from this Court’s sphere.
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.
Ultimately, 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.
WHEREFORE, the consolidated Petitions in G.R. Nos. 238875, 239483, and 240954 are DISMISSED for
being moot.
