Is Senate’s approval needed in treaty withdrawal?

On March 14, 2018, President Duterte announced that the Philippines is withdrawing from the Rome Statute, the international treaty which created the International Criminal Court, effective immediately.

Subsequently, Sen. Antonio Trillanes IV was reported to have asserted that, unless two-thirds of the Senate voted to concur with Mr. Duterte’s decision, the withdrawal is void (“Trillanes says ICC treaty valid in PH,” 3/22/18).

Senate President Aquilino Pimentel III disagreed. For Pimentel, neither the Constitution nor the Rome Statute requires the approval of the Senate or of the legislature as a condition for withdrawing from the treaty.

Senator Trillanes then retorted that whether Senate concurrence is a constitutional requirement will be determined when a challenge to President Duterte’s withdrawal is brought to the Supreme Court. Is judicial review a viable option to determine the validity of President Duterte’s action regarding the Philippines’ withdrawal from the Rome Statute?

The issue is novel as the Supreme Court has not yet decided on any similar or analogous case. In the United States, the unilateral action of the US president in treaty withdrawal is a longstanding practice and the Supreme Court of the United States (Scotus) refused to review that practice in the 1979 case of Goldwater vs Carter.

The case involved a challenge to the constitutionality of President Jimmy Carter’s act of withdrawing the United States from its bilateral mutual defense treaty with Taiwan. Five out of nine justices ruled that the issue was nonjusticiable, with four of those five saying that the issue was a political question.

On the other hand, in the 2017 case of Democratic Alliance vs Minister of International Relations and Cooperation, the High Court of South Africa (HCSA) upheld a constitutional challenge to the decision of the executive branch to withdraw from the Rome Statute.

While South Africa’s constitution provides for how the country enters into treaties and incorporates them into national law, it has no provision on treaty exit. Nevertheless, the HCSA ruled that the notice of withdrawal from a treaty is equivalent to the process of ratification, which is an act that requires
prior approval of the legislature.

For the HCSA, the constitutional provision that vests power to do something necessarily confers the power to undo the very same thing. As the power to bind South Africa to the Rome Statute is expressly given to its parliament through the power of ratification, it should be the parliament which should decide whether the treaty ceases to bind the country.

Thus, the HCSA held that the action of the executive to deliver the notice of withdrawal from the Rome Statute without prior parliamentary approval was unconstitutional and violated the principle of separation of powers.

This prompted South Africa to subsequently revoke its notice of withdrawal.

In view of the respective decisions of the Scotus and the HCSA, it is interesting to see how the Supreme Court of the Philippines will decide on whether there is a need for prior Senate approval before the president can send a notice of withdrawal from a treaty, particularly the Rome Statute.

Is the power to withdraw from a treaty the exclusive prerogative of the president as chief foreign relations officer or is it subject to the concurrence of the Senate?

Certainly, Filipino lawyers have the competence and creativity to craft the appropriate petition. A member of the Senate may have the requisite standing to file the petition.

The Commission on Human Rights, in the exercise of its power to monitor and ensure the government’s compliance with international treaty obligations on human rights, may also have proper standing to be a petitioner.

If given due course by the Supreme Court, such a petition will not only enrich Philippine jurisprudence. It can conclusively resolve the controversy regarding the President’s unilateral action to withdraw from the Rome Statute.

Moreover, it will also provide proper guidance on the respective spheres of power of the executive, legislative, and judicial departments regarding treaty entry, treaty enforcement, and treaty exit.

GORGONIO B. ELARMO JR., gb_elarmo_jr@yahoo.com