Purple text = ruling + personal interpretation
Green/Blue = text from the actual case (legal basis)
Red = most important legal basis
Black text = Issue
You may ignore the highlighted parts, those were just for my readings, Purple + red text most
important.
Summarized facts
The Philippines became a signatory to the Rome Statute, an international treaty that established the
International Criminal Court (ICC), with the concurrence of the Senate, thereby making it part of the
country's domestic law. The ICC is designed to prosecute individuals for serious international crimes such
as genocide, war crimes, and crimes against humanity. On March 15, 2018, the Philippine government, led
by President Rodrigo Duterte, announced its decision to withdraw from the Rome Statute. The formal Notice
of Withdrawal was submitted to the United Nations Secretary-General the following day, on March 16, 2018.
This move sparked legal and constitutional debates within the country, particularly concerning the role of the
Senate and the President in treaty-making and withdrawal.
In response to the government's action, several petitions were filed by different parties, including senators
and civil organizations. These petitioners challenged the constitutionality of the President's unilateral
withdrawal from the Rome Statute. They argued that such a significant move should require the concurrence
of at least two-thirds of the Senate, similar to the process of entering into a treaty. Additionally, the
petitioners contended that the withdrawal would weaken the country's commitment to human rights and
international justice. They sought to have the withdrawal declared invalid and to compel the executive
branch to revoke its Notice of Withdrawal.
Issue
Whether or not the Philippines complied with all the requisites for withdrawal from the Rome
Statute;
Ruling + Interpretation
Court ruled that Yes, the PH had effectively complied with the requisites for withdrawal from the
Rome Statute, in addition, there were no guidelines set in place by the Rome Statute, for reversing
the withdrawal made, only option would be to re apply.
Legal Basis
The Philippines announced its withdrawal from the Rome Statute on March 15, 2018, and formally submitted
its Notice of Withdrawal through a Note Verbale to the United Nations Secretary-General's Chef de Cabinet
on March 16, 2018. The Secretary-General received the notification on March 17, 2018. For all intents and
purposes, and in keeping with what the Rome Statute plainly requires, the Philippines had, by then,
completed all the requisite acts of withdrawal. The Philippines has done all that were needed to facilitate the
withdrawal. Any subsequent discussion would pertain to matters that are fait accompli.
Moreover, while its text provides a mechanism on how to withdraw from it, the Rome Statute does not have
any proviso on the reversal of a state party's withdrawal. We fail to see how this Court can revoke—as what
petitioners are in effect asking us to do—the country's withdrawal from the Rome Statute, without writing
new terms into the Rome Statute.
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. Article 127(1) of the Rome Statute states:
1. A State Party may, by written notification addressed to the Secretary-General of the United
Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of
receipt of the notification, unless the notification specifies a later date.
In any case, this Court has no competence to interpret with finality—let alone bind the International Criminal
Court, the Assembly of States Parties, individual state parties, and the entire international community—what
this provision means, and conclude that undoing a withdrawal is viable. In the face of how the Rome Statute
enables withdrawal but does not contemplate the undoing of a withdrawal, this Court cannot compel external
recognition of any prospective undoing which it shall order. To do so could even mean courting international
embarrassment.
In withdrawing from the Rome Statute, the President complied with the treaty's requirements. Compliance
with its textual provisions cannot be susceptible of an interpretation that his act violated the treaty. Hence,
withdrawal per se from the Rome Statute does not violate pacta sunt servanda.
Whether or not the executive can unilaterally withdraw from a treaty. (main issue
but broken down into more below)
Short answer yes he has the discretion but with limitations that he is withdrawing from
the treaty as it is does not harmonize with the constitution or statutes. But this can be
subject to judicial review when there is grave abuse of discretion
Issue
Whether or not the executive had valid grounds to withdraw from the Rome Statute
Ruling + interpretation
Basically the president has full discretion to withdraw from the Rome Statute, based on his or her
own judgment that it would be contrary to the constitution or statutes.But this can be subject to
judicial review, if there is arbitrariness or whimsical decision making by the president.
Legal Basis
The President is vested with the authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.
All told, 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.
Thus, even sans a judicial determination that a treaty is unconstitutional, the president also enjoy much
leeway in withdrawing from an agreement which, in his or her judgment, runs afoul of prior existing law or
the Constitution. In ensuring compliance with the Constitution and laws, the president performs his or her
sworn duty in abrogating a treaty that, per his or her bona fide judgment, is not in accord with the
Constitution or a law. Between this and withdrawal owing to a prior judicial determination of
unconstitutionality or repugnance to statute however, withdrawal under this basis may be relatively more
susceptible of judicial challenge. This may be the subject of judicial review, on whether there was grave
abuse of discretion concerning the president's arbitrary, baseless, or whimsical determination of
unconstitutionality or repugnance to statute.
Issue
b. Whether or not withdrawing from a treaty requires legislative action;
Ruling + Interpretation
It depends
When a treaty was entered into upon Congress’s express will, the president cannot withdraw from such treat
without concurrence of congress. It shall be consistent with the mirror principle, that any withdrawal from
international agreement must reflect how it was entered into. But in the case at hand congress concurrence
would be unnecessary pursuant to the mirror principle as they had not set any guidelines either upon joining
the treaty.
Legal Basis
When a treaty was entered into upon Congress's express will, the president may notunilaterally 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 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.
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.
c. Whether or not the executive 's withdrawal from the Rome Statute violated any legislative act or
prerogative; and
Ruling + Interpretation
No, there was no violation, as congress did not pass any resolution to set conditions on how the treaty can
be abrogated.
Legal Basis
As effecting treaties is a shared function between the executive and the legislative branches, the Senate's
power to concur with treaties necessarily includes the power to impose conditions for its concurrence. The
requirement of Senate concurrence may then be rendered meaningless if it is curtailed.
Petitioner 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.
While there was an attempt to pass such a resolution, it has yet to be calendared, and thus, has no
binding effect on the Senate as a collegial body.
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.
Issue
d. Whether or not withdrawing from a treaty demands the concurrence of at least two-thirds of all the
members of the Senate.
Ruling+interpretation
Generally the answer would be no, as it discusses in the case that concurrence of is necessary for the
effectivity of a treaty, the sole criterion for validity and effectivity ultimately is that the treaty must not be
contrary to the constitution and the statute. And the president is given the discretion to preserve and
defend the constitution as he has the duty to faithfully execute the laws.
Legal Basis
Senate concurrence is the formal act that renders a treaty or international agreement effective, but it is not,
in substance, the sole criterion for validity and effectivity. Ultimately, a treaty must conform to the
Constitution and statutes.
As the chief executive, the president swore to preserve and defend the Constitution, and faithfully execute
laws. This includes the duty of appraising executive action, and ensuring that treaties and international
agreements are not inimical to public interest. The abrogation of treaties that are inconsistent with the
Constitution and statutes is in keeping with the president's duty to uphold the Constitution and our laws.
Thus, even sans a judicial determination that a treaty is unconstitutional, the president also enjoy much
leeway in withdrawing from an agreement which, in his or her judgment, runs afoul of prior existing law or
the Constitution. In ensuring compliance with the Constitution and laws, the president performs his or her
sworn duty in abrogating a treaty that, per his or her bona fide judgment, is not in accord with the
Constitution or a law. Between this and withdrawal owing to a prior judicial determination of
unconstitutionality or repugnance to statute however, withdrawal under this basis may be relatively more
susceptible of judicial challenge. This may be the subject of judicial review, on whether there was grave
abuse of discretion concerning the president's arbitrary, baseless, or whimsical determination of
unconstitutionality or repugnance to statute.
Issue
Third, whether or not the Philippines' withdrawal from the Rome Statute places the Philippines in
breach of its obligations under international law.
Ruling + personal interpretation
Basically, even if we have withdrawn from the Rome Statute, for our current pending cases already
submitted, they shall still be justiciable.
Legal Basis
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. (Emphasis supplied)
A state party withdrawing from the Rome Statute must still comply with this provision. Even if it has
deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever
process was already initiated before the International Criminal Court obliges the state party to cooperate.
Consequently, liability for the alleged summary killings and other atrocities committed in the course of the
war on drugs is not nullified or negated here. The Philippines remained covered and bound by the Rome
Statute until March 17, 2019.
Issue
Lastly, whether or not the Philippines' withdrawal from the Rome statute will diminish the Filipino people's
protection under international law; and even if it does, whether or not this is a justiciable question.
Ruling + Interpretation
No, it will not diminish the Filipino people’s protection under international law, we have RA 9851 The
Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes against
Humanity, this was passed 2 years before we joined the treaty/Rome Statute. We have our own statute that
will guarantee the protection of our people in accordance with the standards of national and international law
for fair trial.
Legal Basis
This fear of imagined diminution of legal remedies must be assuaged. The Constitution, which embodies our
fundamental rights, was in no way abrogated by the withdrawal. A litany of statutes that protect our rights
remain in place and enforceable.
As discussed, Republic Act No. 9851 or the Philippine Act on Crimes Against International Humanitarian
Law, Genocide, and Other Crimes Against Humanity, echoes the substantive provisions of the Rome Statue.
It was signed into law on December 11, 2009, two years before the Senate concurred with the Rome
Statute. Republic Act No. 9851 covers rights similarly protected under the Rome Statute. Consequently, no
new obligations arose from our membership in the International Criminal Court. Given the variances
between the Rome Statute and Republic Act No. 9851, it may even be said that the Rome Statute amended
Republic Act No. 9851.
The State shall guarantee persons suspected or accused of having committed grave crimes under
international law all rights necessary to ensure that their trial will he fair and prompt in strict accordance with
national and international law and standards for fair trial, It shall also protect victims, witnesses and their
families, and provide appropriate redress to victims and their families.. It shall ensure that the legal systems
in place provide accessible and gender-sensitive avenues of redress for victims of armed conflict[.]2
Infact the domestic laws we have right now would even protect us more since they are more detailed and
thoroughly made
All told, the more restrictive Rome Statute may have even weakened the substantive protections already
previously afforded by Republic Act No. 9851. In such a case, it may well be beneficial to remove the
confusion brought about by maintaining a treaty whose contents are inconsistent with antecedent statutory
provisions.
Issue
Can we still be bound by the Rome Statute, even if we have abrogated from the treaty?
Ruling + interpretation
Yes as eventually these may become international customs, which we will be bound to even if we have not
joined the treaty.
Legal Basis
Some customary international laws have been affirmed and embodied in treaties and conventions. A treaty
constitutes evidence of customary law if it is declaratory of customary law, or if it is intended to codify
customary law. In such a case, even a State not party to the treaty would be bound thereby. A treaty which
is merely a formal expression of customary international law is enforceable on all States because of their
membership in the family of nations. For instance, the Vienna Convention on Consular Relations to binding
even on non-party States because the provisions of the Convention are mostly codified rules of customary
international law binding on all States even before their codification into the Vienna Convention. Another
example is the Law of the Sea, which consists mostly of codified rules of customary international law, which
have been universally observed even before the Law of the Sea was ratified by participating States.
Corollarily, treaties may become the basis of customary international law. While States which are not parties
to treaties or international agreements are not bound thereby, such agreements, if widely accepted for years
by many States, may transform into customary international laws, in which case, they bind even non-
signatory States.
Actual Ruling of the 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.
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. Nevertheless, any attempt to invoke the power of judicial review
must conform to the basic requisites of justiciability. Such attempt can only proceed when attended by
incidents demonstrating a properly justiciable controversy.
