THE Supreme Court (SC) on Tuesday wrapped up its oral arguments on the petitions seeking to declare as null and void President Duterte’s decision to withdraw from the Rome Statute of the International Criminal Court (ICC).
During yesterday’s oral argument, Senior Associate Justice Antonio Carpio raised the possibility of the Philippine government losing its only legal deterrent and recourse against a Chinese invasion of the country’s territories if the Court upholds the government’s decision to pull out from the ICC.
Carpio recounted that a recent amendment to the Rome Statute on crime of aggression or the so-called the “Kampala amendment” took effect on July 17, 2018 which states that political and military leaders of a state that commit crime aggression can be brought before the ICC for trial.
“If China invades Pagasa and puts up a naval base in Scarborough shoal we will no be able to sue President Xi Jinping and his military leaders because we would have withdrawn already from the ICC,” Carpio told Calida.
“We cannot take advantage of this legal defense anymore because we are withdrawing from the Rome Statute, to take advantage of this new crime we must remain with the ICC and we must ratify the Kampala amendment, the fourth crime under the ICC,” he added.
Pag-asa and Scarborough Shoal are among the islands being disputed by the Philippines and China in the South China Sea.
Carpio countered Calida’s claim that there might be other treaties that the Philippine government may use in the event that such an aggression happens.
“This is the only treaty in the world that holds military and political leaders of a state that commits the crime of aggression accountable before an international tribunal,” Carpio pointed out.
“We will lose that defense we will have no deterrent legally because there is no other tribunal that can decide on territorial disputes unless both parties voluntarily submit to arbitration but this one is a crime against the world, against mankind, a crime of aggression,” he added.
The SC conducted the oral argument based on the consolidated petitions filed by six opposition senators and the Philippine Coalition for the International Criminal Court (PCICC), led by former Commission on Human Rights chairperson Loretta Ann Rosales challenging the government’s withdrawal from the ICC.
President Duterte announced on March 14, 2018 the Philippines’ withdrawal of its ratification of the Rome Statute, a United Nations (UN) treaty creating the ICC.
Duterte cited the ICC’s “baseless, unprecedented and outrageous attacks” against him and his administration as the reason for his withdrawal as a state party.
This came after ICC special prosecutor Fatou Bensouda started a preliminary examination on the alleged human rights violations amid the Duterte administration’s intensified war on drugs.
Duterte defended his decision to take back the Philippines’ ratification of the Rome Statute, noting that the treaty is not a law since it was not published in the Official Gazette when the Philippines ratified it in August 2011, during the time of former President Benigno Aquino III.
During the oral argument, Calida sought the dismissal of the consolidated petitions on substantive and procedural grounds.
He maintained that it is within the exclusive power of the President to withdraw from the ICC, contrary to the claim of the petitioners that such decision needs the approval of the Senate under Section 21, Article VII of the Constitution.
The said provision specifically states that which states that “entering into treaty or international agreement requires participation of Congress, that is, through concurrence of at least two-thirds of all the members of the Senate.”
Calida stressed that such provision and constitutional requirement applies only in ratification of new treaties and does not apply to withdrawal from treaties.
“This provision requires the concurrence of at least two-thirds of all members of the Senate to make a treaty or international agreement valid and effective, but not in the event of withdrawal from a treaty. The petitioners cannot read into the provision what is not there. There is no requirement for senate concurrence in withdrawal from treaty,” he told justices.
Calida also argued that the President’s decision is not subject to a judicial review under the doctrine of separation of powers.
“Under the doctrine of separation of powers that affords due respect for co-equal and coordinate branches of government, the Court must restrain itself from intruding into policy matters and allow a wide degree of discretion to the president in determining foreign policy,” he stressed.
Calida also the ICC has already accepted the Philippine government’s withdrawal which will take effect on March 15, 2019.