MANILA, Philippines — The president's chief legal counsel Salvador Panelo on Tuesday insisted that the Rome Statute of the International Criminal Court is not binding because it did not comply with the publication rule, a requirement not previously imposed on treaties.
"We are withdrawing precisely because we are not bound by that law. There is no law to speak of. We're just telling them that: 'Di kami kasama dyan dahil wala naman kayong batas dito sa amin kasi you did not follow our rules, constitution," Panelo said in a forum at the University of the Philippines Bonifacio Global City.
He stressed: "That law has not been published in the Official Gazette or newspaper of general publication; hence, it cannot be enforceable in this country."
Panelo contended that the treaty that created the ICC has penal provisions, thus the need for publication in the Official Gazette or any newspaper of general circulation.
But UP professor Tony La Viña stressed that if one follows that logic, then all the treaties that the country has entered into would have no effect.
"The moment that we ratify an agreement and we deposit the ratification of agreement, the treaty becomes part of the law of the land," he said.
The Senate ratified the Rome Statute in 2011. According to the treaty, it entered into force 60 days from the day that the instrument of ratification was deposited with the United Nations secretary-general.
Publication is also not among the requirements listed in jurisprudence and in Philippine guidelines on how treaties are negotiated and ratified. The Official Gazette does not even have a section for treaties and agreements.
READ: Publication not among usual requirements for treaties, agreement
'Non-publication immaterial to international obligations'
The International Commission on Jurists, in its letter to President Rodrigo Duterte, said that it is "immaterial" whether or not the Rome Statute or the instrument of ratification is published such as the Official Gazette.
Article 46 of the Vienna Convention on the Law of Treaties mandates that the state party may not invoke domestic laws irregularities to evade its obligation under the international law.
"A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance," it said.
But the presidential legal counsel maintained that international laws cannot prevail over local laws.
"In case of any irreconcilable differences between the international law and the municipal law, municipal law should prevail. This is a basic requirement," Panelo said.
Panelo was criticized in mid-2016 for saying, incorrectly, that the war on drugs would be a valid reason to declare martial law in the Philippines. "[C]onstitutionally a declaration of martial law is valid since there is imminent danger to the public safety," he said despite the 1987 Constitution only allowing martial law in case of rebellion or invasion, and only if public safety requires it.
Both Panelo and the president have stressed that since the Rome Statute is unenforceable in the country, then the rule that it would take one year to withdraw from ICC does not apply to the Philippines.
Duterte declared the withdrawal from the ICC after the international tribunal's prosecutor announced it that it will examine allegations over the conduct of the ferocious war on drugs. Examination, as the Palace has also pointed out, is not the same as an investigation.
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