Wrong premises of ICC withdrawal

In a 15-page press release, President Rodrigo Duterte announced his decision for the Philippines to withdraw “immediately” from the International Criminal Court, the court established by the adoption of the Rome Statute of the International Criminal Court on July 17, 1998. This decision, now implemented with the delivery of a letter of withdrawal to the United Nations, was clearly in response to the decision of the Special Prosecutor of the ICC to open a preliminary examination into alleged crimes against humanity committed in Duterte’s war on drugs.

In his statement of withdrawal the President laid down a number of justifications or grounds for the drastic move by his administration. The main argument raised is the supposed lack of effectivity and unenforceability of the Rome Statute for lack of publication required by domestic law. Another argument raised is the alleged fraud in entering into such agreement when the Philippines was made to believe that the principle of complementarity shall be observed; that the principle of due process and the presumption of innocence as mandated by our Constitution and the Rome Statue shall prevail.

With this column, I start a series of articles on the Philippines’ withdrawal from the ICC, beginning with my thoughts on the two grounds mentioned above, i.e. lack of publication and the alleged fraud.

Is publication in the Official Gazette a condition sine qua non to make the Rome Statute valid and effective? Most definitely not.

Justice Isagani Cruz has described the usual steps in treaty-making process, namely, negotiation, signature, ratification, and exchange of the instruments of ratification. Publication is not one of them. The treaty may then be submitted for registration and publication under the United Nations Charter, although this step is not essential to the validity of the agreement as between the parties.

In our jurisdiction, ratification, the formal act by which a state confirms and accepts the provisions of a treaty, is done by the president but must be concurred in by the Senate. Thus, Section 21 of the 1987 Constitution categorically states that the concurrence by 2/3 of all the members of the Senate or 16 votes out of the 24 senators is the operative and final act that makes a treaty or international agreement valid and effective. Had publication been an essential requirement to make the treaty effective and valid, the Constitution should have explicitly made it an indispensable requisite. But it does not.

The Guidelines in the Negotiation International Agreements and its Ratification or Executive Order 459 issued by President Fidel Ramos requires for all treaties to be transmitted to the Department of Foreign Affairs after signing for preparation of the ratification papers, then submission of a copy to the president for his ratification and finally, submission to the Senate for concurrence in the ratification by the president. By its concurrence, the Senate transforms the treaty or international agreement into law enforceable in the Philippines by virtue of the principle of transformation recognized by our Constitution. Again, nowhere does it mention publication as an essential requirement.

What then is the significance of the New Civil Code that requires the publication of a law in the Official Gazette or in a newspaper of general circulation to make it effective and enforceable?

Section 24 of the Administrative Code of 1987 lists down the classes of legal documents that need to be published in the Official Gazette. Thus, it includes legislative acts and resolutions of a public nature, executive and administrative issuances of general application; decisions or abstracts of decisions; documents or classes of documents that the law requires to be published to be published by law; and such documents or classes of documents as the President shall determine from time to time to have general application or which he may authorize so to be published.

A cursory reading of the above provision will readily tell us that a treaty or international agreement does not belong to the same classes of laws in the enumeration. A treaty, which is an international agreement entered into by the Philippines, requires ratification by the president and concurrence by the Senate. It forms part of the law of the land by virtue only of transformation, a principle recognized by international law. An international agreement or treaty is not strictly an executive act, although it requires ratification by the president. It is formally an act between state parties with the intervention of governmental institutions like the executive or legislature. It is not per se a legislative enactment that is, a statue emanating from the legislature, although again in our jurisdiction it needs Senate concurrence and becomes a law only by reason of transformation. It is for this reason that our Constitution provides for specific steps in order to make international agreements effective and valid.

The case of Tanada vs. Tuvera cited in the Duterte statement involves various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letters of implementations and administrative orders. Extant jurisprudence consistently requires treaties to be ratified by the executive and concurred in by the senate but makes no mention of complying with the publication requirement for its validity.

In Pimentel v. Executive Secretary, the Court tackled the issue of whether to compel the Department of Foreign Affairs and the Office of the Executive Secretary to send the signed copy of the Rome Statute to the Senate so it could concur with ratification. While the ponente Justice Puno discussed the steps for treaty making, he made no mention of publication; an authoritative if not conclusive indicium that the Court does not consider publication one of the requisites.

Accepting this argument that publication is required for treaties to take effect would result in the absurd conclusion that we are not a party to any international agreement from the United Nations Charter to the Mutual Defense Treaty to the WTO Agreements to the Kyoto Protocol to the Paris Agreement on climate change because none of these, as far as I know, were published in the Official Gazette or in newspapers of general publication.

On the allegation fraud, suffice it to say that the Philippine negotiators acting on behalf of the state, the President and the Senate together presumably performed their functions with regularity and in the exercise of due diligence, mindful of the interest of the state in signing and ratifying the agreement. That none of the 120 signatories with the exception of the Philippines, is seeking to invalidate the agreement on the ground of fraud is most telling.

The Special Prosecutor has yet to formally open the preliminary examination to determine whether there is a reasonable basis to proceed with an investigation. It is merely in the process of collecting relevant data. There is as yet no proof that the president or any individual for that matter is now being considered a suspect, much less have been pronounced guilty without being given the opportunity to be heard.

Neither is complementarity violated when notwithstanding the functioning courts, there is conspicuous absence of genuine national proceedings to seek justice for alleged victims of extrajudicial killings; when there is no reasonable ground to believe that one is forthcoming considering that the president and other actors who initiated and are implementing the controversial campaign on drugs are still holding the reins of power.

In the next column, I will elaborate on the consequences of the ICC withdrawal to a potential case against President Duterte and other officials. I will end this series. I will end the series reflecting on the question of whether we should have stayed in the ICC and why the Duterte decision must be reversed for the national interest.

Facebook: Professor Tony La Viña or deantonylavs Twitter: tonylavs

Topics: Rodrigo Duterte , International Criminal Court , United Nations , Rome Statute , Department of Foreign Affairs ,
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