● In any case, despite the withdrawal, this Court finds no

PANGILINAN v. CAYETANO lesser protection of human rights within our system of laws.
G.R. No. 238875, 239483 & 240954 | March 16 2021 | Leonen, J. | Neither do we agree with petitioners' implied statements that
Treaty Withdrawal without the treaty, the judiciary will not be able to fulfill its
CUTIES mandate to protect human rights.
● Moreover, the Senate never sought to enforce what would
have been its prerogative to require its concurrence for
PETITIONER: Pangilinan, et al.
withdrawal. To date, Resolution No. 249, which seeks to
RESPONDENT: Cayetano, et al.
express the chamber's position on the need for concurrence,
has yet to be tabled and voted on.
FACTS:
● This Court cannot compel or annul actions where the
relevant incidents are moot. Neither can this Court, without
due deference to the actions of a co-equal constitutional
ISSUE/S:
branch, act before the Senate has acted.
● Nonetheless, the President's discretion on unilaterally
RULING
withdrawing from any treaty or international agreement is not
absolute.
DOCTRINE
● As primary architect of foreign policy, the president enjoys a
degree of leeway to withdraw from treaties. However, this
leeway cannot go beyond the president's authority under the
Constitution and the laws. In appropriate cases, legislative
FACTS: involvement is imperative. The president cannot unilaterally
● On March 15, 2018, the Philippines announced its withdraw from a treaty if there is subsequent legislation
withdrawal from the International Criminal Court. On March which affirms and implements it.
16, 2018, it formally submitted its Notice of Withdrawal ● Conversely, a treaty cannot amend a statute. When the
through a Note Verbale to the United Nations president enters into a treaty that is inconsistent with a prior
Secretary-General's Chef de Cabinet. statute, the president may unilaterally withdraw from it,
● Through these actions, the Philippines completed the unless the prior statute is amended to be consistent with the
requisite acts of withdrawal. This was all consistent and in treaty. A statute enjoys primacy over a treaty. It is passed by
compliance with what the Rome Statute plainly requires. By both the House of Representatives and the Senate, and is
this point, all that were needed to enable withdrawal have ultimately signed into law by the president. In contrast, a
been consummated. Further, the International Criminal Court treaty is negotiated by the president, and legislative
acknowledged the Philippines' action soon after it had participation is limited to Senate concurrence. Thus, there is
withdrawn. This foreclosed the existence of a state of affairs greater participation by the sovereign's democratically
correctible by this Court's finite jurisdiction. The Petitions elected representatives in the enactment of statutes.
were, therefore, moot when they were filed. The ● The extent of legislative involvement in withdrawing from
International Criminal Court's subsequent consummate treaties is further determined by circumstances attendant to
acceptance of the withdrawal all but confirmed the futility of how the treaty was entered into or came into effect. Where
this Court's insisting on a reversal of completed actions. legislative imprimatur impelled the president's action to enter
into a treaty, a withdrawal cannot be effected without
 concomitant legislative sanction. Similarly, where the Estrada), signed the Rome Statute of the
Senate's concurrence imposes as a condition the same International Criminal Court.
concurrence for withdrawal, the president enjoys no ○ In the meantime, on July 1, 2002, the International
unilateral authority to withdraw, and must then secure Criminal Court's Rome Statute entered into force.
Senate concurrence. [Without Senate Concurrence]
● Thus, the president can withdraw from a treaty as a matter of ○ On December 11, 2009, with Senate concurrence to
policy in keeping with our legal system, if a treaty is the Rome Statute still pending, then President Gloria
unconstitutional or contrary to provisions of an existing prior Macapagal-Arroyo (President Macapagal-Arroyo)
statute. However, the president may not unilaterally withdraw signed into law Republic Act No. 9851, otherwise
from a treaty: (a) when the Senate conditionally concurs, known as the Philippine Act on Crimes Against
such that it requires concurrence also to withdraw; or (b) International Humanitarian Law, Genocide, and
when the withdrawal itself will be contrary to a statute, or to a Other Crimes Against Humanity. Republic Act No.
legislative authority to negotiate and enter into a treaty, or an 9851 replicated many of the Rome Statute's
existing law which implements a treaty. provisions. 10
● This Court resolves consolidated Petitions for Certiorari and ○ Senate concurrence to the Rome Statute was
Mandamus under Rule 65 of the 1997 Rules of Civil obtained following President Benigno Aquino III's
Procedure, seeking to: (President Aquino) election. On August 23, 2011, the
○ (a) declare the Philippines' withdrawal from the Senate, with a vote of 17-1, passed Resolution No.
Rome Statute as invalid or ineffective, since it 546 — enabling the Philippines' consummate
was done without the concurrence of at least accession to the Rome Statute.
two-thirds of all the Senate's members; and ○ On April 24, 2017, Atty. Jude Sabio filed a complaint
○ (b) compel the executive branch to notify the before the International Criminal Court pertaining to
United Nations Secretary-General that it is alleged summary killings when President Duterte
cancelling, revoking, and withdrawing the was the mayor of Davao City.
Instrument of Withdrawal. Petitioners maintain ○ On March 15, 2018, the Philippines announced that
that the Instrument of Withdrawal is inconsistent it was withdrawing from the International Criminal
with the Constitution. Court. President Duterte claimed that the country
● HISTORY: MOST ARE OMITTED never became a state party to the Rome Statute
○ The Rome Statute is a multilateral treaty that since the treaty was not published in the Official
established the International Criminal Court, where Gazette.
the gravest crimes under international law are ○ On March 16, 2018, the Philippines formally
prosecuted. submitted its Notice of Withdrawal from the
○ Since 1996, under Fidel V. Ramos's (President International Criminal Court to the United Nations.
Ramos) presidency, the Philippines has participated
in the court's establishment, taking an active role in ISSUE/S: W/N the Philippines' withdrawal from the Rome Statute
the deliberations as a member of the Drafting through a Note Verbale delivered to the Secretary-General of the
Committee. United Nations is valid, binding, and effectual. This involves the
○ On December 28, 2000, the Philippines, through following issues:
then President Joseph Ejercito Estrada (President ● 1. Whether or not the Philippines complied with all the
requisites for withdrawal from the Rome Statute;
 ● 2. Whether or not the executive can unilaterally withdraw ● Procedural shz
from a treaty. This encompasses: ● Respondents maintain that the withdrawal was valid for
○ a. Whether or not the executive had valid grounds to having complied with the Rome Statute, which requires only
withdraw from the Rome Statute; a written notification of withdrawal.
○ b. Whether or not withdrawing from a treaty requires
legislative action; RATIO:
○ c. Whether or not the executive's withdrawal from History of the Rome Statute
the Rome Statute violated any legislative act or ● On July 17, 1998, the Rome Statute of the International
prerogative; and Criminal Court was adopted in a conference participated in
○ d. Whether or not withdrawing from a treaty by 120 states. It created the International Criminal Court, a
demands the concurrence of at least two-thirds of all permanent autonomous institution, that was given
the members of the Senate. jurisdiction to "investigate, prosecute, and try" individuals
● Third, W/N the Philippines' withdrawal from the Rome accused of international crimes of genocide, crimes against
Statute places the Philippines in breach of its obligations humanity, war crimes, and the crime of aggression.
under international law? - NO. ● World War, then nagkaroon ng trials: nuremberg and tokyo
● Lastly, W/N the Philippines' withdrawal from the Rome international military tribunals. Upon termination of their
statute will diminish the Filipino people's protection under respective trials, the Nuremburg and Tokyo International
international law; and even if it does, whether or not this is a Military Tribunals also ceased to operate.
justiciable question? - NO, it does not diminish the ● In 1994, the International Law Commission submitted a
protection under IL. proposal to the United Nations General Assembly, creating a
permanent international criminal court.
POINTS OF CONTENTION: ● Tas boom Rome Statute
Petitioner: ● The International Criminal Court has an international legal
● Petitioners-senators argue that, as a treaty that the personality, 76 and sits at The Hague in the Netherlands. 77
Philippines validly entered into, the Rome Statute "has the It may exercise its functions and powers "on the territory of
same status as an enactment of Congress," as "a law in the any [s]tate [p]arty and, by special agreement, on the territory
Philippines." They claim that the President "cannot repeal a of any other [s]tate."
law." They aver that the country's withdrawal from a treaty ● Jurisdiction of the ICC
requires the concurrence of at least two-thirds of the Senate. ○ 1. The jurisdiction of the Court shall be limited to the
● petitioner Philippine Coalition for the International Criminal most serious crimes of concern to the international
Court and its members assert that their rights to life, community as a whole. The Court has jurisdiction in
personal security, and dignity were impaired by the accordance with this Statute with respect to the
withdrawal from the Rome Statute. Citing a decision of the following crimes:
South African High Court, they also claim that the ratification ○ (a) The crime of genocide;
of and withdrawal from a multilateral treaty require the ○ (b) Crimes against humanity;
Senate's concurrence. According to them, contrary to the ○ (c) War crimes;
President's assertion, the Rome Statute is effective in ○ (d) The crime of aggression.
Philippine jurisdiction by virtue of the Constitution's ● The International Criminal Court's jurisdiction is
incorporation clause, despite lack of publication. "complementary to national criminal jurisdictions."
Respondent: Complementarity means that the International Criminal
 Court may only exercise jurisdiction if domestic courts the Rome Statute, it sent a written notification of withdrawal
were "unwilling or unable" to prosecute. to the Secretary-General of the International Criminal Court
● Individual criminal responsibility under the Rome Statute on October 27, 2016. Burundi's withdrawal was effected on
does not affect state responsibility in international law. October 26, 2017.
Further, the Rome Statute provides additional grounds of ● Following Burundi, South Africa, Gambia, and the
criminal Philippines manifested their intent to withdraw. Nonetheless,
● The Rome Statute provides that state parties are obliged to Gambia and South Africa rescinded their notifications of
give their full cooperation toward the International Criminal withdrawal on February 10, 2017 and March 7, 2017,
Court's investigation and prosecution of crimes within its respectively.
jurisdiction.
● A state party's failure to comply with the International History of Ratification of the Rome Statute
Criminal Court's request to cooperate would warrant the
International Criminal Court's finding to that effect. It will then ● On December 28, 2000, the Philippines signed the Rome
"refer the matter to the Assembly of States Parties or, where Statute. However, it was still "subject to ratification,
the Security Council referred the matter to the International acceptance or approval by signatory [s]tates." It was also
Criminal Court, to the Security Council." necessary that instruments of ratification be deposited with
● Article 127 of the Rome Statute provides mechanisms on the Secretary-General of the United Nations.
how a state party may withdraw from it: ● Later, Senator Aquilino Pimentel, Jr., Representative Loretta
○ 1. A State Party may, by written notification Ann Rosales, the Philippine Coalition for the Establishment
addressed to the Secretary-General of the United of the International Criminal Court, the Task Force Detainees
Nations, withdraw from this Statute. The withdrawal of the Philippines, and the Families of Victims of Involuntary
shall take effect one year after the date of receipt of Disappearances, among others, filed a petition for
the notification, unless the notification specifies a mandamus before this Court to compel the Office of the
later date. Executive Secretary and the Department of Foreign Affairs to
○ 2. A State shall not be discharged, by reason of its transmit the signed copy of the Rome Statute to the Senate
withdrawal, from the obligations arising from this for its concurrence.
Statute while it was a Party to the Statute, including ● Their petition was dismissed. In Pimentel, Jr. v. Executive
any financial obligations which may have accrued. Secretary, this Court noted that it was beyond its "jurisdiction
Its withdrawal shall not affect any cooperation with to compel the executive branch of the government to
the Court in connection with criminal investigations transmit the signed text of the Rome Statute to the Senate."
and proceedings in relation to which the withdrawing ● This Court declared that submission to ratification is
State had a duty to cooperate and which were "generally held to be an executive act," 110 and it binds the
commenced prior to the date on which the state to the signed statute. It concluded that upon signature
withdrawal became effective, nor shall it prejudice in through a representative, the president exercises discretion
any way the continued consideration of any matter on whether to ratify the statute or not.
which was already under consideration by the Court ● In 2009, President Macapagal-Arroyo signed into law
prior to the date on which the withdrawal became Republic Act No. 9851, which replicated many of the then
effective. unratified Rome Statute's provisions.
● Burundi is, thus far, the only other state party to withdraw ○ Some provisions, however, are significantly different.
from the Rome Statute. In accordance with Article 127 (1) of In some aspects, the law went beyond the Rome
 Statute. It broadened the definition of torture, added ● However, this Court had previously stated that this difference
the conscription of child soldiers as a war crime, and in form is immaterial in international law:
stipulated jurisdiction over crimes against humanity ○ The special nature of an executive agreement is not
anywhere in the world, as long as the offender or just a domestic variation in international agreements.
victim is Filipino. This removes complementarity as a International practice has accepted the use of
requirement for prosecution of crimes against various forms and designations of international
humanity under the ratified treaty. While the treaty's agreements, ranging from the traditional notion of a
language had to be refined to take the interests of treaty — which connotes a formal, solemn
other countries into consideration, the law was instrument — to engagements concluded in modern,
independently passed considering all our interests. simplified forms that no longer necessitate
This independent, voluntary initiative strengthened ratification. An international agreement may take
our own criminal justice system. different forms: treaty, act, protocol, agreement,
● On February 28, 2011, President Aquino sent the signed concordat, compromis d'arbitrage, convention,
Rome Statute to the Senate for concurrence. 115 On August covenant, declaration, exchange of notes, statute,
23, 2011, the Senate passed Resolution No. 546, which pact, charter, agreed minute, memorandum of
embodied the country's accession to the Rome Statute. 116 agreement, modus vivendi, or some other form.
● On August 30, 2011, the Philippines deposited its instrument Consequently, under international law, the distinction
of ratification to the United Nations Secretary-General. Thus, between a treaty and an international agreement or
the Rome Statute took effect in the Philippines on November even an executive agreement is irrelevant for
1, 2011. purposes of determining international rights and
obligations.
Treaties v. Executive Agreements ● This Court also cautioned that this local affectation does not
mean that the constitutionally required Senate concurrence
● Treaties and executive agreements are equally binding on may be conveniently disregarded:
the Philippines. However, an executive agreement: "(a) does ○ There remain two very important features that
not require legislative concurrence; (b) is usually less formal; distinguish treaties from executive agreements and
and (c) deals with a narrower range of subject matters." 120 translate them into terms of art in the domestic
Executive agreements dispense with Senate concurrence setting.
"because of the legal mandate with which they are ○ First, executive agreements must remain traceable
concluded." They simply implement existing policies, and are to an express or implied authorization under the
thus entered into: Constitution, statutes, or treaties. The absence of
○ (1) to adjust the details of a treaty; these precedents puts the validity and effectivity of
○ (2) pursuant to or upon confirmation by an act of the executive agreements under serious question for the
Legislature; or main function of the Executive is to enforce the
○ (3) in the exercise of the President's independent Constitution and the laws enacted by the
powers under the Constitution. Legislature, not to defeat or interfere in the
○ The raison d'être of executive agreements hinges on performance of these rules. In turn, executive
prior constitutional or legislative authorizations. 122 agreements cannot create new international
(Emphasis supplied, citations omitted) obligations that are not expressly allowed or
 reasonably implied in the law they purport to ● Pursuant to Article VII, Section 21 of the Constitution,
implement. treaties become "valid and effective" upon the Senate's
○ Second, treaties are, by their very nature, concurrence:
considered superior to executive agreements. ● The constitutional framers were not linguistically ignorant.
Treaties are products of the acts of the Executive Treaties follow a different process to become part of the law
and the Senate unlike executive agreements, which of the land. Their delineation from generally accepted
are solely executive actions. Because of legislative principles of international law was deliberate. So was the use
participation through the Senate, a treaty is regarded of different terminologies and mechanisms in rendering them
as being on the same level as a statute. If there is an valid and effective.
irreconcilable conflict, a later law or treaty takes ● In consonance with the Constitution and existing laws,
precedence over one that is prior. An executive presidents act within their competence when they enter into
agreement is treated differently. Executive treaties. However, for treaties to be effective in this
agreements that are inconsistent with either a law or jurisdiction, Senate concurrence must be obtained. The
a treaty are considered ineffective. Both types of president may not engage in foreign relations in direct
international agreement are nevertheless subject to contravention of the Constitution and our laws:
the supremacy of the Constitution. ● In sum, treaty-making is a function lodged in the
○ This rule does not imply, though, that the President executive branch, which is headed by the president.
is given carte blanche to exercise this discretion. Nevertheless, a treaty's effectivity depends on the
Although the Chief Executive wields the exclusive Senate's concurrence, in accordance with the
authority to conduct our foreign relations, this power Constitution's system of checks and balances.
must still be exercised within the context and the
parameters set by the Constitution, as well as by Mechanism for Withdrawal
existing domestic and international laws[.]
● While Senate concurrence is expressly required to make
Treaties v. Generally Accepted Principles of International Law treaties valid and effective, no similar express mechanism
concerning withdrawal from treaties or international
● Article 38 of the Statute of the International Court of Justice agreements is provided in the Constitution or any statute.
enumerates the sources of international law. Similarly, no constitutional or statutory provision grants the
● The sources of international law — international president the unilateral power to terminate treaties. This
conventions, international custom, general principles of law, vacuum engenders the controversy around which the
and judicial decisions — are treated differently in our present consolidated Petitions revolve.
jurisdiction. ● Frameworks in evaluating executive action, vis-à-vis
● Thus, generally accepted principles of international law legislative prerogatives, have been formulated in other
include international customs and general principles of law. jurisdictions. Judicious discernment makes these
Under the incorporation clause, these principles form part of frameworks worthy of consideration.
the law of the land. And, "by mere constitutional declaration, ● To be clear, however, while legal principles in a legal system
international law is deemed to have the force of domestic similar to ours may hold persuasive value in our courts, we
law." will not adopt such principles without considering our own
unique cultural, political, and economic contexts. The
Philippines has long struggled against colonialism. We will
 not betray efforts at evolving our own just but unique congressional-executive agreements or treaties that
modalities for judicial review by summarily adopting were initially concluded with considerable legislative
foreign notions. input. That principle would make Congress's input
● In Goldwater v. Carter, a case resolved by the United States necessary for disengagement even from such
Supreme Court, certain members of Congress assailed then international agreements as the Paris Climate
President Jimmy Carter's (President Carter) unilateral Agreement, which broadly implicate Congress's
abrogation of the Sino-American Mutual Defense Treaty. commerce powers, and which — while never
● Even back in 1979, before the case reached the United subjected to an up-or-down vote — were
States Supreme Court, Circuit Court Judge MacKinnon 154 nevertheless enacted against a significant
had previously cautioned that a grant of absolute power of background of congressional awareness and
unilateral termination to the president may be easily used in support that implicitly authorized the presidential
the future to "develop other excuses to feed upon making, but not the unmaking, of climate change
congressional prerogatives that a Congress lacking in agreements. Congress also should participate in an
vigilance allows to lapse into desuetude." 155 The District attempt to withdraw the United States even from
Court eventually ruled that President Carter did not exceed such political agreements as the Iran Nuclear Deal
his authority in terminating the bilateral agreement without (also known as the JCPOA), where the President is
Senate concurrence. exercising plenary foreign commerce powers that
● In a Resolution, the United States Supreme Court granted were delegated by Congress and where the U.S.
the petition for certiorari, vacated the Court of Appeals termination has now triggered actionable claims of
judgment, and remanded the case to the District Court, "with violation of international law.
directions to dismiss the complaint." ● Professor Koh considered that, as a functional matter,
● Observations articulated in Goldwater reveal stark overboard unilateral executive power to terminate treaties
similarities between the American and the Philippine legal risks presidents making "overly hasty, partisan, or parochial
systems concerning ensuing debates on the necessity of withdrawals," thus weakening systemic stability, as well as
Senate concurrence in abrogating treaties: the credibility and negotiating leverage of all presidents.
● Yale Law School Professor Harold Hongju Koh (Professor ● The mirror principle echoes the points raised by Justice
Koh) opined that a president has no general unilateral power Robert H. Jackson's renowned concurrence 165 in the
to terminate treaties; instead, Senate concurrence on treaty separation-of-powers case, Youngstown Sheet & Tube Co. v.
abrogation is imperative. Sawyer. 166 There, he laid down three categories of
● Professor Koh proposed the operation of what he dubbed as executive action as regards the necessity of concomitant
the "mirror principle," where "the degree of legislative legislative action: [YOUNGSTOWN FRAMEWORK]
approval needed to exit an international agreement must ○ Category One: "when the President acts pursuant to
parallel the degree of legislative approval originally required an express or implied authorization of Congress, his
to enter it." He further said: authority is at its maximum, for it includes all that he
○ Under the mirror principle, the Executive may possesses in his own right plus all that Congress
terminate, without congressional participation, can delegate";
genuinely "sole" executive agreements that have ○ Category Two: "when the President acts in absence
lawfully been made without congressional input. But of either a congressional grant or denial of authority,
the President may not entirely exclude Congress he can only rely upon his own independent powers,
from the withdrawal or termination process regarding but there is a zone of twilight in which he and
 Congress may have concurrent authority, or in which textual configuration of the Constitution hearkens both to the
its distribution is uncertain"; and basic separation of powers and to a system of checks and
○ Category Three: "when the President takes balances. Presidential discretion is recognized, but it is not
measures incompatible with the expressed or absolute. While no constitutional mechanism exists on how
implied will of Congress, his power is at his lowest the Philippines withdraws from an international agreement,
ebb, for then he can rely only upon his own the president's unbridled discretion vis-à-vis treaty
constitutional powers minus any constitutional abrogation may run counter to the basic prudence underlying
powers of Congress over the matter." the entire system of entry into and domestic operation of
● Medellin involved a review of the president's power in foreign treaties.
affairs. In turn, Medellin was considered in our jurisdiction by
Chief Justice Reynato S. Puno (Chief Justice Puno) in The Mirror Principle
examining the constitutionality of the Visiting Forces
Agreement. 170 Chief Justice Puno, opined: ● The mirror principle and the Youngstown framework are
○ It held that while an international treaty may suitable starting points in reviewing the president's acts in
constitute an international commitment, it is not the exercise of a power shared with the legislature. However,
binding domestic law unless Congress has enacted their concepts and methods cannot be adopted mechanically
statutes implementing it or unless the treaty itself is and indiscriminately. A compelling wisdom underlies them,
"self-executing." It further held that decisions of the but operationalizing them domestically requires careful
ICJ are not binding domestic law; and that, absent consideration and adjustment in view of circumstances
an act of Congress or Constitutional authority, the unique to the Philippine context.
U.S. President lacks the power to enforce ● The mirror principle is anchored on balancing executive
international treaties or decisions of the ICJ. action with the extent of legislative participation in entering
● Later, Saguisag v. Ochoa 172 reviewed the constitutionality into treaties. It is sound logic to maintain that the same
of the Enhanced Defense Cooperation Agreement between constitutional requirements of congressional approval —
the Republic of the Philippines and the United States of which attended the effecting of treaties following original
America. In Saguisag, Justice Brion found the Youngstown entry into them — must also be followed in their termination.
framework to be a better approach than simply anchoring ● As proposed by Chief Justices Fernando and Puno, along
this Court's position in one constitutional provision. He with Justice Brion, the Youngstown framework may also
proposed the examination of the president's act in the guide us in reviewing executive action vis-à-vis the necessity
context of how our system of government works. of concomitant legislative action in withdrawing from treaties.
● Thus, in appropriate cases, the validity of the When the president clearly shares power with the legislature,
president's actions — when there are countervailing and yet disavows treaties despite no accompanying action
legislative prerogatives — may be appraised in light of by Congress, the Youngstown framework considers this an
the Youngstown framework. instance when the president relies exclusively on their
● All told, the president, as primary architect of foreign policy, limited independent powers. Thus, the validity of the
negotiates and enters into international agreements. withdrawal, the exercise of which should have been
However, the president's power is not absolute, but is concurrent with Congress, must be critically examined. The
checked by the Constitution, which requires Senate basic, underlying fact of powers being shared makes it
concurrence. Treaty-making is a power lodged in the difficult to sustain the president's unilateral action.
executive, and is balanced by the legislative branch. The
 ● This Court adopts the following guidelines as the modality for between a law and a treaty, it is the statute that must
evaluating cases concerning the president's withdrawal from prevail.
international agreements: ○ The second point proceeds from the first. The
validity and effectivity of a treaty rests on its being in
First, the president enjoys some leeway in withdrawing from harmony with the Constitution and statutes. The
agreements which he or she determines to be contrary to the Constitution was ratified through a direct act of the
Constitution or statutes. sovereign Filipino people voting in a plebiscite;
statutes are adopted through concerted action by
○ Both in negotiating and enforcing treaties, the their elected representatives. Senate concurrence is
president must ensure that all actions are in keeping the formal act that renders a treaty or international
with the Constitution and statutes. Accordingly, agreement effective, but it is not, in substance, the
during negotiations, the president can insist on terms sole criterion for validity and effectivity. Ultimately, a
that are consistent with the Constitution and treaty must conform to the Constitution and statutes.
statutes, or refuse to pursue negotiations if those ○ These premises give the president leeway in
negotiations' direction is such that the treaty will turn withdrawing from treaties that he or she determines
out to be repugnant to the Constitution and our to be contrary to the Constitution or statutes.
statutes. The president should not be bound to abide ○ In the event that courts determine the
by a treaty previously entered into, should it be unconstitutionality of a treaty, the president may
established that such treaty runs afoul of the unilaterally withdraw from it.
Constitution and our statutes. ○ Owing to the preeminence of statutes enacted by
○ There are treaties that implement mandates elected representatives and hurdling the rigorous
provided in the Constitution, such as human rights. legislative process, the subsequent enactment of a
Considering the circumstances of each historical law that is inconsistent with a treaty likewise allows
period our nation encounters, there will be many the president to withdraw from that treaty.
means to acknowledge and strengthen existing ○ As the chief executive, the president swore to
constitutional mandates. Participating in and preserve and defend the Constitution, and faithfully
adhering to the creation of a body such as the ICC, execute laws. This includes the duty of appraising
by becoming a party to the Rome Statute is one executive action, and ensuring that treaties and
such means, but so is passing a law that, regardless international agreements are not inimical to public
of international relations, replicates many of the interest. The abrogation of treaties that are
Rome Statute's provisions and even expands its inconsistent with the Constitution and statutes is in
protections. In such instances, it is not for this Court keeping with the president's duty to uphold the
— absent concrete facts creating an actual Constitution and our laws.
controversy — to make policy judgments as to which
between a treaty and a statute is more effective, and Second, the president cannot unilaterally withdraw from agreements
thus, preferable. which were entered into pursuant to congressional imprimatur.
○ A valid treaty or international agreement may be
effective just as a statute is effective. It has the force ○ The Constitution devised a system of checks and
and effect of law. Still, statutes enjoy preeminence balances in the exercise of powers among the
over international agreements. In case of conflict branches of government.
○ Considering that effecting treaties is a shared ○ Consistent with the mirror principle, any
function between the executive and the legislative withdrawal from an international agreement must
branches, Congress may expressly authorize the reflect how it was entered into. As the agreement
president to enter into a treaty with conditions or was entered pursuant to congressional
limitations as to negotiating prerogatives. imprimatur, withdrawal from it must likewise be
○ Similarly, a statute subsequently passed to authorized by a law.
implement a prior treaty signifies legislative ○ Here, Congress passed R.A. No. 9851 well ahead of
approbation of prior executive action. This lends the Senate's concurrence to the Rome Statute. R.A.
greater weight to what would otherwise have been a No. 9851 is broader than the Rome Statute itself.
course of action pursued through executive This reveals not only an independent, but even a
discretion. When such a statute is adopted, the more encompassing legislative will — even
president cannot withdraw from the treaty being overtaking the course — of international relations.
implemented unless the statute itself is repealed. Our elected representatives have seen it fit to enact
○ When a treaty was entered into upon Congress's a municipal law that safeguards a broader scope of
express will, the president may not unilaterally rights, regardless of whether the Philippines formally
abrogate that treaty. In such an instance, the joins the International Criminal Court through
president who signed the treaty simply accession to the Rome Statute.
implemented the law enacted by Congress. While
the president performed his or her function as Third, the President cannot unilaterally withdraw from international
primary architect of international policy, it was in agreements where the Senate concurred and expressly declared
keeping with a statute. The president had no sole that any withdrawal must also be made with its concurrence.
authority, and the treaty negotiations were
premised not only upon his or her own ○ The Senate may concur with a treaty or international
diplomatic powers, but on the specific agreement expressly indicating a condition that
investiture made by Congress. This means that withdrawal from it must likewise be with its
the president negotiated not entirely out of his or her concurrence. It may be embodied in the same
own volition, but with the express mandate of resolution in which it expressed its concurrence. It
Congress, and more important, within the may also be that the Senate eventually indicated
parameters that Congress has set. such a condition in a subsequent resolution.
○ While this distinction is immaterial in international Encompassing legislative action may also make it a
law, jurisprudence has treated this as a class of general requirement for Senate concurrence to be
executive agreements. To recall, an executive obtained in any treaty abrogation. This may mean
agreement implements an existing policy, and is the Senate invoking its prerogative through
entered "to adjust the details of a treaty . . . pursuant legislative action taken in tandem with the House of
to or upon confirmation by an act of the Legislature; Representatives — through a statute or joint
executive agreements [hinge] on prior constitutional resolution — or by adopting, on its own, a
or legislative authorizations." Executive agreements comprehensive resolution. What controls is the
"inconsistent with either a law or a treaty are Senate's exercise of its prerogative to impose
considered ineffective." concurrence as a condition.
 ○ As effecting treaties is a shared function between ○ 2. A violation is manifest if it would be objectively
the executive and the legislative branches, the evident to any State conducting itself in the matter in
Senate's power to concur with treaties necessarily accordance with normal practice and in good faith.
includes the power to impose conditions for its ● A state party may not invoke the provisions of its internal law
concurrence. The requirement of Senate to justify its failure to perform a treaty. Under international
concurrence may then be rendered meaningless if it law, we cannot plead our own laws to excuse our
is curtailed. noncompliance with our obligations.
● In sum, at no point and under no circumstances does the ● The March 15, 2018 Note Verbale submitted by the
president enjoy unbridled authority to withdraw from treaties Department of Foreign Affairs, through our Ambassador to
or international agreements. Any such withdrawal must be the United Nations, partly reads:
anchored on a determination that they run afoul of the ○ The Government of the Republic of the Philippines
Constitution or a statute. Any such determination must have has the honor to inform the Secretary-General, in his
clear and definite basis; any wanton, arbitrary, whimsical, or capacity as depositary of the Rome Statute of the
capricious withdrawal is correctible by judicial review. International Criminal Court, of its decision to
Moreover, specific circumstances attending Congress's withdraw from the Rome Statute of the International
injunction on the executive to proceed in treaty negotiation, Criminal Court in accordance with the relevant
or the Senate's specification of the need for its concurrence provisions of the Statute.
to be obtained in a withdrawal, binds the president and may ● The Philippines' withdrawal was submitted in accordance
prevent him or her from proceeding with withdrawal. with relevant provisions of the Rome Statute. The President
complied with the provisions of the treaty from which the
Pacta sunt servanda (XVII) country withdrew. There cannot be a violation of pacta sunt
servanda when the executive acted precisely in accordance
● Pacta sunt servanda is a generally accepted principle of with the procedure laid out by that treaty. Article 127 (1) of
international law that preserves the sanctity of treaties. This the Rome Statute states:
principle is expressed in Article 26 of the Vienna Convention: ○ 1. A State Party may, by written notification
● Article 26 "Pacta sunt servanda" addressed to the Secretary-General of the United
○ Every treaty in force is binding upon the parties to it Nations, withdraw from this Statute. The withdrawal
and must be performed by them in good faith. shall take effect one year after the date of receipt of
● A supplementary provision is found in Article 46: the notification, unless the notification specifies a
○ Article 46. Provisions of internal law regarding later date.
competence to conclude treaties. ● From its text, the Rome Statute provides no room to reverse
○ 1. A State may not invoke the fact that its consent to the accepted withdrawal from it. While there is a one-year
be bound by a treaty has been expressed in violation period before the withdrawal takes effect, it is unclear
of a provision of its internal law regarding whether we can read into that proviso a permission for a
competence to conclude treaties as invalidating its state party to rethink its position, and retreat from its
consent unless that violation was manifest and withdrawal.
concerned a rule of its internal law of fundamental ● Generally, jus cogens rules of customary international law
importance. cannot be amended by treaties. As Articles 121, 122, and
123 allow the amendment of provisions of the Rome Statute,
this indicates that the Rome Statute is not jus cogens. At
 best, its provisions are articulations of customary law, or March 17, 2019 may be taken cognizance of by the
simply, treaty law. Article 121 (6) sanctions the immediate International Criminal Court.
withdrawal of a state party if it does not agree with the ○ Further, as petitioners in G.R. No. 239483
amending provisions of the Rome Statute. Therefore, underscored:
withdrawal from the Rome Statute is not aberrant. Precisely, ■ [U]nder this reverse complementarity
the option is enabled for states parties. provision in [Republic Act No. 9851], the
● In withdrawing from the Rome Statute, the President Preliminary Examination opened by the
complied with the treaty's requirements. Compliance [International Criminal Court] on the
with its textual provisions cannot be susceptible of an President's drug war is not exactly haram (to
interpretation that his act violated the treaty. Hence, borrow a word used in Islam to mean any
withdrawal per se from the Rome Statute does not act forbidden by the Divine). Assuming such
violate pacta sunt servanda. a [Preliminary Examination] proceeds . . .
When Art. 18 (3) of the Rome Statute comes
Withdrawal from the Rome Statute does NOT discharge into play, [Republic Act No. 9851] may be
obligations as a member invoked as basis by Philippine authorities to
defer instead to the [International Criminal
● Article 127 (2) provides: Court] in respect of any investigation on the
○ A State shall not be discharged, by reason of its same situation. 277
withdrawal, from the obligations arising from this ● Consequently, liability for the alleged summary killings
Statute while it was a Party to the Statute, including and other atrocities committed in the course of the war
any financial obligations which may have accrued. on drugs is not nullified or negated here. The
Its withdrawal shall not affect any cooperation with Philippines remained covered and bound by the Rome
the Court in connection with criminal investigations Statute until March 17, 2019.
and proceedings in relation to which the withdrawing
State had a duty to cooperate and which were Withdrawal from the Rome Statute did NOT diminish the Filipino
commenced prior to the date on which the people’s protection under IL
withdrawal became effective, nor shall it prejudice in
any way the continued consideration of any matter ● The Constitution, which embodies our fundamental rights,
which was already under consideration by the Court was in no way abrogated by the withdrawal. A litany of
prior to the date on which the withdrawal became statutes that protect our rights remain in place and
effective. (Emphasis supplied) enforceable.
● A state party withdrawing from the Rome Statute must still ● As discussed, R.A. No. 9851, or the Philippine Act on
comply with this provision. Even if it has deposited the Crimes Against International Humanitarian Law, Genocide,
instrument of withdrawal, it shall not be discharged from and Other Crimes Against Humanity, echoes the substantive
any criminal proceedings. Whatever process was already provisions of the Rome Statute. It was signed into law on
initiated before the International Criminal Court obliges the December 11, 2009, two years before the Senate concurred
state party to cooperate. with the Rome Statute. R.A. No. 9851 covers rights
● Until the withdrawal took effect on March 17, 2019, the similarly protected under the Rome Statute.
Philippines was committed to meet its obligations under Consequently, no new obligations arose from our
the Rome Statute. Any and all governmental acts up to membership in the International Criminal Court. Given
 the variances between the Rome Statute and R.A. No. 9851, or acquiescence of a person m authority or agent of a
it may even be said that the Rome Statute amended R.A. person in authority" for specific purposes.
No. 9851. ● Republic Act No. 9851 clustered war crimes or crimes
● Republic Act No. 9851 declares the State policy of against international humanitarian law into three categories:
○ valuing "the dignity of every human person and (1) an international armed conflict; (2) a non-international
guarantee[ing] full respect for human rights, armed conflict; and (3) other serious violations of laws and
including the rights of indigenous cultural customs applicable in armed conflict. It then listed specific
communities and other vulnerable groups, such as acts against protected persons or properties, or against
women and children[.]" It guarantees protection persons taking no active part in hostilities.
against "the most serious crimes of concern to the ● Acts of willful killing, as opposed to "murder" under the Rome
international community as a whole...and their Statute, deportation or forcible transfer of populations,
effective prosecution must be ensured by taking torture, and the sexual offenses under the third category of
measures at the national level, in order to put an end war crimes are also listed as "other crimes against humanity"
to impunity for the perpetrators of these crimes[.]" It under R.A. No. 9851.
recognizes that the State must "exercise its criminal ● Unlike the Rome Statute, R.A. No. 9851 also adds or
jurisdiction over those responsible for international includes among other crimes against humanity persecution
crimes[.]" against any individual, group, or collectivity based on their
● This is enforced by the Republic Act No. 9851's assertion of sexual orientation. Enforced or "involuntary disappearance of
jurisdiction over crimes committed anywhere in the world. persons" is also a punishable crime against humanity.
● R.A. No. 9851 expressly confers original and exclusive ● R.A. No. 9851 holds superiors liable as principals for crimes
jurisdiction on RTCs over the offenses it punishes. It also committed by subordinates under their effective command
provides that this Court shall designate special courts to try and control. This provides for command responsibility "as a
these cases. Unlike the Rome Statute, R.A. No. 9851 form of criminal complicity" that jurisprudence has
dispenses with complementarity as a requirement for recognized:
prosecution of crimes against humanity. ○ Command responsibility may be loosely applied in
● Chapter III of R.A. No. 9851 defines war crimes, genocide, amparo cases in order to identify those accountable
and other crimes against humanity, as similarly characterized individuals that have the power to effectively
in the Rome Statute. implement whatever processes an amparo court
● However, there are significant differences between the would issue. In such application, the amparo court
Rome Statute and Republic Act No. 9851. does not impute criminal responsibility but merely
● R.A. No. 9851 defines torture as "the intentional infliction of pinpoint the superiors it considers to be in the best
severe pain or suffering, whether physical, mental, or position to protect the rights of the aggrieved party.
psychological, upon a person in the custody or under the ● Such identification of the responsible and accountable
control of the accused; except that torture shall not include superiors may well be a preliminary determination of criminal
pain or suffering arising only from, inherent in or incidental liability which, of course, is still subject to further
to, lawful sanctions." investigation by the appropriate government agency.
● Meanwhile, psychological means of torture are not covered ○ Relatedly, the legislature came up with R.A. No.
by the Rome Statute. This is also a departure from R.A. No. 9851 to include command responsibility as a
9745, or the Anti-Torture Act of 2009, which limits torture to form of criminal complicity in crimes against
those "inflicted by or at the instigation of or with the consent international humanitarian law, genocide and
 other crimes. RA 9851 is thus the substantive into the Vienna Convention. Another example is the
law that definitively imputes criminal liability to Law of the Sea, which consists mostly of codified
those superiors who, despite their position, still rules of customary international law, which have
fail to take all necessary and reasonable been universally observed even before the Law of
measures within their power to prevent or the Sea was ratified by participating States.
repress the commission of illegal acts or to ○ Corollarily, treaties may become the basis of
submit these matters to the competent customary international law. While States which are
authorities for investigation and prosecution. not parties to treaties or international agreements
(Emphasis supplied, citations omitted) are not bound thereby, such agreements, if widely
● All told, the more restrictive Rome Statute may have even accepted for years by many States, may transform
weakened the substantive protections already into customary international laws, in which case,
previously afforded by Republic Act No. 9851. In such a they bind even non-signatory States.
case, it may well be beneficial to remove the confusion ● The Rome Statute of the International Criminal Court was
brought about by maintaining a treaty whose contents adopted by 120 members of the United Nations (UN) on 17
are inconsistent with antecedent statutory provisions. July 1998. It entered into force on 1 July 2002, after 60
States became party to the Statute through ratification or
The principles of law in the Rome State are generally accepted accession. The adoption of the Rome Statute fulfilled the
principles of international law international community's long-time dream of creating a
permanent international tribunal to try serious international
● It has been opined that the principles of law in the Rome crimes. The Rome Statute, which established an
Statute are generally accepted principles of international law. international criminal court and formally declared
Assuming that this is true and considering the incorporation genocide, war crimes and other crimes against humanity
clause, the Philippines' withdrawal from the Rome Statute as serious international crimes, codified generally
would be a superfluity thus, ultimately ineffectual. The accepted principles of international law, including
Philippines would remain bound by obligations expressed in customary international laws.
the Rome Statute: ○ The principles of law embodied in the Rome Statute
○ Some customary international laws have been were already generally accepted principles of
affirmed and embodied in treaties and conventions. international law even prior to the adoption of the
A treaty constitutes evidence of customary law if it is Statute. Subsequently, the Rome Statute itself
declaratory of customary law, or if it is intended to has been widely accepted and, as of November
codify customary law. In such a case, even a State 2010, it has been ratified by 114 states, 113 of
not party to the treaty would be bound thereby. A which are members of the UN.
treaty which is merely a formal expression of ○ There are at present 192 members of the UN.
customary international law is enforceable on all Since 113 member states have already ratified
States because of their membership in the family of the Rome Statute, more than a majority of all the
nations. For instance, the Vienna Convention on UN members have now adopted the Rome
Consular Relations is binding even on non-party Statute as part of their municipal laws.
States because the provisions of the Convention are ○ !!! Thus, the Rome Statute itself is generally
mostly codified rules of customary international law accepted by the community of nations as
binding on all States even before their codification constituting a body of generally accepted
 principles of international law. The principles of involvement on the manner by which a treaty
law found in the Rome Statute constitute was entered into or came into effect. (MIRROR
generally accepted principles of international law PRINCIPLE) The President cannot unilaterally
enforceable in the Philippines under the withdraw from treaties that were entered into
Philippine Constitution. The principles of law pursuant to the legislative intent manifested in prior
embodied in the Rome Statute are binding on the laws, or subsequently affirmed by succeeding laws.
Philippines even if the Statute has yet to be Treaties where Senate concurrence for accession is
ratified by the Philippine Senate. expressly premised on the same concurrence for
● Thus, petitioners' concern that the country's withdrawal withdrawal likewise cannot be the subject of
from the Rome Statute abjectly and reversibly subverts unilateral withdrawal. The imposition of Senate
our basic human rights appears to be baseless and concurrence as a condition may be made piecemeal,
purely speculative. through individual Senate resolutions pertaining to
● All told, the consolidated Petitions are dismissed for failing to specific treaties, or through encompassing legislative
demonstrate justiciability. While we commend the action, such as a law, a joint resolution by Congress,
zealousness of petitioners in seeking to ensure that the or a comprehensive Senate resolution.
President acts within the bounds of the Constitution, they ● Ultimately, the exercise of discretion to withdraw from
had no standing to file their suits. We cannot grant the reliefs treaties and international agreements is susceptible to
they seek. The unfolding of events, including the judicial review in cases attended by grave abuse of
International Criminal Court's acknowledgment of withdrawal discretion, as when there is no clear, definite, or reliable
even before the lapse of one year from initial notice, showing of repugnance to the Constitution or our statutes, or
rendered the Petitions moot, removing any potential relief in cases of inordinate unilateral withdrawal violating requisite
from this Court's sphere. legislative involvement. Nevertheless, any attempt to invoke
● Mechanisms that safeguard human rights and protect the power of judicial review must conform to the basic
against the grave offenses sought to be addressed by requisites of justiciability. Such attempt can only proceed
the Rome Statute remain formally in place in this when attended by incidents demonstrating a properly
jurisdiction. Further, the International Criminal Court retains justiciable controversy.
jurisdiction, over any and all acts committed by government
actors until March 17, 2019.
● Hence, withdrawal from the Rome Statute does not
affect the liabilities of individuals charged before the WHEREFORE, the consolidated Petitions in G.R. Nos. 238875,
International Criminal Court for acts committed up to 239483, and 240954 are DISMISSED for being moot.
this date.
● As guide for future cases, this Court recognizes that, as SO ORDERED.
primary architect of foreign policy, the President enjoys a
degree of leeway to withdraw from treaties which are
bona fide deemed contrary to the Constitution or our
laws, and to withdraw in keeping with the national policy
adopted pursuant to the Constitution and our laws.
○ !!! However, the President's discretion to
withdraw is qualified by the extent of legislative