Withdrawal from the ICC

SEPTEMBER 3, 2018

The Supreme Court is now hearing on oral arguments the Philippines’ withdrawal from the
Rome Statute. Several senators filed a petition to stop this, arguing that Senate concurrence is
required before the President can withdraw from a treaty. While this is not yet settled, it does not
stop the bar examiner from asking a related question. In fact, an exact same question has been
asked in the 2008 Bar Exam (see below).

According to Professor Rene Gorospe in one of his lectures, questions on unsettled issues will
test how bar candidates argue their point.

In this post, I discuss relevant concepts on treaty withdrawal that will help a bar candidate give
an informed answer if it gets asked in the bar exam.

Is withdrawal from treaties allowed under the Vienna Convention on the Law of Treaties
(VCLOT)?

The general rule under the VCLOT is that withdrawal from or denunciation of a treaty is
generally not possible, unless any of the following exceptions exist:

 The treaty itself provides for such right to withdraw;

 The party seeking to withdraw obtains, after consultation, the consent

thereto of
all the other contracting parties;

 The parties intended to admit the possibility of denunciation or

withdrawal
notwithstanding the absence of such provision in the treaty; and

 A right of denunciation or withdrawal is implied by the nature of the

treaty.

Lastly, the party seeking to withdraw must discharge the burden to show that one of the
exceptions is present.

For the Rome Statute, is withdrawal allowed?

Yes, withdrawal from the Rome Statute is allowed under the first exception, that is, the treaty
itself provides for such right to withdraw.

Article 127

Withdrawal

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.
2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from
this Statute while it was 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.

Under Philippine Law, is Senate concurrence required?

This is actually the subject of 2008 Bar Exam Question in Political Law.

“III. The President alone without the concurrence of the Senate abrogated a treaty. Assume that
the other country-party to the treaty is agreeable to the abrogation provided it complies with the
Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the
Supreme Court, how should it be resolved? (6%)”

The UP Law Center provided three suggested answers.

SUGGESTED ANSWER 1:

The Supreme Court should dismiss the case. The jurisdiction of the Supreme Court (or all of
lowers courts) over a treaty is only with respect to questions of its constitutionality of validity
(See Art. VIII, sec. 5(2)(a) of the 1987 Constitution). In other words, the question should involve
the constitutionality of a treaty or its validity in relation to a statute (Gonzales v. Hechanova, 9
SCRA 230 [1963]). It does not pertain to the termination (or abrogation) of a treaty.

The authority of the Senate over treaties is limited to concurrence (Art. VIII, sec. 21 of the 1987
Constitution). There being no express constitutional provision regulating the termination or
abrogation of treaties, it is presumed that the power of the President over treaty agreements and
over foreign relations includes the authority to “abrogate” (or more properly referred as
“terminate”) treaties. The termination of the treaty by the President without concurrence of the
Senate is not subject to constitutional attack, there being no Senate authority to that effect.

The Philippines is a party to the Vienna Convention on the Law of Treaties. Hence, the said
Convention thus becoming part of Philippine Law governs the act of the President in terminating
(or abrogating) the treaty. Article 54 of this Convention provides that a treaty may be terminated
“at any time by consent of all parties.” Apparently, the treaty in question is a bilateral treaty in
which the other state is agreeable to its termination. Article 67 of the Convention adds the formal
requirement that the termination must be in an instrument communicated to the other party
signed by the Head of State or Government or by the Minister of Foreign Affairs.

SUGGESTED ANSWER 2:

“The Supreme Court should dismiss the case. the case involved is a political question, because it
involves the authority of the President in the conduct of foreign relations and the extent to which
the Senate is authorized to negate the action of the President. Since Section 21, Article VII of the
Constitution is silent as to the participation of the Senate in the abrogation of a treaty, the
question may be answered in different ways and should be decided by political standards rather
than judicially manageable standards (Goldwater v. Carter, 444 US 996 [1979]).”

SUGGESTED ANSWER 3:
“While it is the President who negotiates and ratifies treaties and other international agreements,
it must be underscored that when the same has been concurred in by the qualified majority of the
Senate, they become part of the law of the land. Accordingly, it is submitted that the President
alone cannot unilaterally abrogate a treaty without Congressional authorization, in the same way
that she would have no authority to repeal a law.

Further, even as what the Constitution requires in the concurrence of the Senate in treaties and
international agreements entered into, not the abrogation of the same, the same should not also
be construed as empowering the President to simply render nugatory a treaty that has already
acquired the imprimatur of the Senate. (See Goldwater v. Carter, 444 US 996 [1979], cited in
Bernas, An Introduction to Public International Law (2002) at 53).”

Personally, I believe the third suggested answer is the correct one.

As much as the executive power to initiate withdrawal from treaties is implied from the power to
ratify treaties, the same safeguard must attend both powers to ratify and withdraw from treaties.
In this regard, I submit that Senate concurrence is likewise required to make withdrawal from a
treaty valid. There are two apparent reasons for this.

First, as stated earlier, our Constitution instituted Senate concurrence as a check on the power of
the President to ratify treaties. Thus, it will be absurd for the Constitution not to grant the Senate
the same implied authority to check the power of the President to withdraw from treaties. Indeed,
without the safeguard of Senate concurrence, the President may very well withdraw from all
treaties previously concurred in by the Senate.

Second, as much as treaty ratification brings to the domestic sphere the substantive content of
treaties, withdrawal would mean the repeal thereof. Hence, if Senate concurrence is not required
to validate treaty withdrawals, it will result in the implied grant of power to repeal national law
on the President. Certainly, this absurdity is not envisioned by our Constitution. Thus, to
authorize such repeal, legislative participation is also necessary. Senate concurrence performs
this function.