Can the Philippines leave the ICC without Senate concurrence?

MANILA, Philippines — Can President Rodrigo Duterte withdraw the Philippines from the Rome Statute that established the International Criminal Court without the approval of the Senate?

 

On Wednesday, Malacañang released an unsigned copy of Duterte's written notification to the Hague-based court saying the Philippines is pulling out as a State Party to the Rome Statute "effective immediately."

 

The firebrand leader also disputed the treaty's provision that provides that the withdrawal "shall take effect one year after the date of receipt of the notification," arguing that entering such an agreement "appears to be fraud."

 

The power to bind the Philippines by a treaty and international agreement is vested jointly by the Constitution in the president and in the Senate.

 

"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," the 1987 Constitution states.

 

Last year, 14 senators filed Senate Resolution No. 289, which expresses the sense that the chamber should have a say when a treaty or international agreement concurred in by the Senate is terminated.

 

The senate resolution was lodged after Duterte, citing Western criticism over the conduct of his bloody drug war, threatened to follow Russia and leave the "useless" ICC.

 

The resolution, whose principal author is Minority Leader Franklin Drilon, has yet to be adopted and is non-binding.

Speaking to reporters on Wednesday, Drilon said the Senate has no say on the Philippines' withdrawal from the ICC.

 

"I have tried to introduce a resolution before... unfortunately, I think it was Sen. [Manny] Pacquaio who objected to it, so it was not passed," Drilon said.

 

Senate President Aquilino Pimentel III, former head of the Senate Committee on Justice and Human Rights, backed the president's decision.

 

 "If I were president, I might have done the same thing. They are meddling. They’re trying to micromanage the country. They have gone too far," Pimentel said.

 

Meanwhile, Sen. Loren Legarda, chair of the Senate Committee on Foreign Relations, vowed to work with the Executive branch and other senators "to ensure that the decision we make in signing or withdrawing from international treaties would serve our national interest."

 

READ: Fact check: Does the ICC have jurisdiction over Duterte?

Malacañang last month said the ICC would conduct a "preliminary examination" — the first formal step the court takes to determine whether Duterte's anti-narcotic drive meets the legal criteria established by the Rome Statute to warrant investigation by the ICC. As the Palace was quick to point out, this is not the same as a preliminary investigation.

 

For his part, Sen. Antonio Trillanes IV, who was among those who filed a communication to the ICC about the Philippines' deadly anti-drug campaign, said Duterte's decision to withdraw the country's ratification of the Rome Statute is a "political move."

 

He also stressed that the Philippines' departure from the ICC has no legal effect on the cases filed at the time the country was a state party. 

 

"He knows that there is no way out for him in the ICC," Trillanes said. "Duterte, by withdrawing from the ICC, has practically admitted that he is guilty of the allegations filed against him."

 

In a separate statement, Rep. Gary Alejano (Magdalo party-List), who joined Trillanes in filing a communication to the ICC in the Hague, said Duterte's decision is an "obvious, yet futile, attempt to elude his accountability in the international court."

 

Alejano said withdrawal "will only highlight his guilt."

 

For Rep. Carlos Isagani Zarate (Bayan Muna party-list), the president's move is a "grave setback to human rights and accountability." 

 

"For all the bluster of the present administration in the manner it launched its bloody wars, this withdrawal also means that it is gravely petrified of the long arm of the law and accountability," Zarate said.