Public International Law Moot Court Competition
Summary: On March 2018, Pres. Rodrigo Duterte declared the withdrawal of the Philippines
to the Rome Statute and submitted a communication letter to such upon the United Nations.
The Rome Statute promulgated the creation of the International Criminal Court. President
Duterte contended that the Rome Statute was not legally ratified as a Philippine law as it was
not published in a newspaper of general circulation. Concerned Citizens, alarmed by the
exposure caused by such withdrawal argued the invalidity of the act of the President.
Issue 1: The Withdrawal of the Republic of the Phiippines to the Rome Statute is
unconstitutional.
Issue 2: The Withdrawal of the Philippines to the ICC deprives the Filipinos of the
protection against those crimes under the jurisdiction of the ICC.
Issue 3: Whether or not the Philippines violates international law for its withdrawal
on the ICC.
Oral Arguments:
The contention of the President as the basis for the withdrawal in the ICC is void of merit, on the
ground that there is no further requirement of publication in any newspaper of general
circulation to make the treaty binding upon the Philippines.
Paragraph 2 of Article 125 of the Rome Statute of the International Criminal Court states
that the Statute is subject to ratification, acceptance or approval by signatory States.
Instruments of ratification, acceptance or approval shall be deposited with the Secretary-
General of the United Nations. (Rome Statute of the International Criminal Court)
In the same way, the treaty-making process provided by the Vienna Convention on the
Law of Treaties states that the consent of a State to be bound by a treaty is expressed by
ratification.
Furthermore, Article 16 of the Vienna Convention states that instruments of ratification,
acceptance, approval, or accession establish the consent of a State to be bound by a
treaty upon : (a) their exchange between the contracting States; (b) their deposit with the
depositary; or (c) their notification to the contracting States or to the depositary, if so
agreed.
On August 30, 2011, the Republic of the Philippines deposited its instrument of
ratification to the Rome Statute of the International Criminal Court (ICC) at the United
Nations Office of Legal Affairs in New York. (International Criminal Court, August 2011)
Thus making the Philippines bound to the International Criminal Court.
When the government enacted RA 9851, it committed to “adopt the generally accepted
principles of international law, including the Hague Conventions of 1907, the Geneva
Conventions on the protection of victims of war and international humanitarian law, as
part of the law our nation.”
On the ratification process
BY AMBASSADOR JAIME S. BAUTISTA
OCTOBER 07, 2018
HOME / OPINION / ANALYSIS / ON THE RATIFICATION PROCESS
JAIME S. BAUTISTA
Pending before the Supreme Court are petitions to declare invalid the Philippines’ withdrawal
from the Rome Statute (which created the International Criminal Court or ICC) because the
decision to withdraw was made without the approval of the Senate.
The Integrated Bar of the Philippines is one of the petitioners because of its laudable advocacy
for defense of human rights.
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The Philippine Constitution provides that “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.”
DFA practice
Because the cited provision speaks only of Senate concurrence in the ratification of treaties, the
Department of Foreign Affairs (DFA) follows a procedure of referring to the Senate all treaties
ratified by the President, but its consultation with the Senate ends after the Senate has given its
concurrence. There is no language in the Constitution requiring Senate concurrence with respect
to withdrawal from treaties.
This practice of the DFA is based on the principle of separation of powers and that treaty making
is an executive power and part of the power of the President to conduct foreign affairs. On the
other hand, the requirement of Senate concurrence in the ratification of treaties is part of the
system of checks and balances in the Constitution.
Once the treaty enters into force for the Philippines, its implementation, including the terms for
its termination, depends on the provisions of the treaty itself and the Law of Treaties, to which
the Philippines is also a party. Thus, the Senate has already given its prior approval to the terms
and the manner for the withdrawal from the Rome Statute, which is one of the ways by which
the Philippines may terminate this treaty
Possible Rebuttals:
The Supreme Court of the Philippines in an earlier decision has ruled that a treaty or an
executive agreement is valid and binding upon the nation, unless “it conflicts with the
fundamental law” or “runs counter with an act of Congress.” (Gonzales [Link],
60 O.G. 802 (1964).
I.
Principle: Article 2 SECTION 2. The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations. (1987 Constitution)
SECTION 10. The State shall promote social justice in all phases of national development.
Possible Rebuttal:
State Policy. Article 2 SECTION 7. The State shall pursue an independent foreign policy. In its
relations with other states the paramount consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self-determination. (1987 Constitution)
II.
SECTION 11. The State values the dignity of every human person and guarantees full respect for
human rights.
III.
Under the treaty, withdrawal is only effective one year after a country gives written notice of its
decision to the UN secretary-general.
A signatory country also can "not be discharged" of any cases already pending in the court
before the withdrawal.
That means the probe into possible crimes against humanity in the president's drug war
launched by ICC prosecutor Fatou Bensouda in February 2018 would continue.
(Al Jazeera, 2019)
Article 51
Crimes within the jurisdiction of the Court
The jurisdiction of the Court shall be limited to the most serious crimes of concern
to the international community as a whole. The Court has jurisdiction in accordance
with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
Article 7
Crimes against humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following
acts when committed as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(i) Enforced disappearance of persons;
(i) "Enforced disappearance of persons" means the arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence
of, a State or a political organization, followed by a refusal to acknowledge
that deprivation of freedom or to give information on the fate or whereabouts
of those persons, with the intention of removing them from the protection of
the law for a prolonged period of time.
