Topic: Phil.

withdrawal in the ICC

Issue: Whether or not publication in the Official Gazette is a requirement for the Rome Statute to be
enforced in the Phil?

Background:

1. Rome Statute (July 17, 1998) - established the International Criminal Court in 2002
2. ICC has jurisdiction over (the first 3 crimes are punishable under the Phil Act on Crimes Against
International Humanitarian Law, Genocide and Other Crimes against Humanity) enacted in
2009:
i. Genocide
ii. crime against humanity
iii. war crimes
iv. crime of aggression
3. Pres. Duterte announced that he was annulling the Phil’s. ratification of the Rome Statute on
March 2018
4. President Duterte’s (the Malacanan Palace denies that the Phil. ever became a state party at all)
contentions are the following:
1. Rome statute is ineffective and unenforceable
2. It must be published in the Official Gazette or in a newspaper of general circulation, invoking
Art.2 of the Civil Code, so that the law shall become effective.
3. Insisted that publication is necessary for treaties related to criminal offenses, bec. the treaty
is clearly a criminal law and one important characteristic of criminal law is territoriality.

Issue: Whether or not publication in the Official Gazette is a requirement for a treaty to be enforced.

Answer: No, publication in the OG is not necessary and not a requirement according to jurisprudence
and to Phil guidelines on how treaties are negotiated and ratified.

1. The steps in treaty-making process laid down in the case of Sen. Aquilino Pimentel vs Office of
the Executive Secretary (GR No.158088, 2005-07-06) by the Supreme Court decision in 2005.

Side Note:
a. The case is a petition to compel the DFA and the Office of the Exec. Secretary to
transmit the signed text of the treaty (Rome Statute) to the Senate of the Phil. for
ratification. Sec 21, Art. VII of the Constitution states that “no treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all
members of the Senate” but SC ruled that it does not mean that the power to ratify
treaties belongs to the State.
b. Court ruled that the decision on whether or not a treaty is to be sent to the Senate for
concurrence is up to the President and the Senate’s power is only in concurring or
rejecting the ratification.
 c. It is within the authority of the President to refuse to submit a treaty to the Senate or,
having secured its consent for its ratification, refuse to ratify it.

2. The steps in treaty-making processes enumerated by former Justice Cruz and cited by Justice
Puno in this case are the following:
a. Negotiation
b. Signature
c. Ratification (formal act by which State confirms and accepts the provisions of a treaty
concluded by its representatives)
d. Exchange of Instruments of ratification (that would signal the effectivity of the treaty)
3. Further, EO No. 459 (issued by Pres. FVR on Nov.25, 1997) “Providing for the guidelines in the
Negotiation International Agreements and its Ratification” does not require also publication.
4. Hence, publication of the Rome Statute in the Official Gazette is not a requirement and not
necessary.
5. Nonetheless, the Phil.is not anymore a signatory of the Rome Statute because the one-year
period for the ratification has already elapsed, hence moot and academic.
6. The Phil is the second state party after the Republic of Burundi (a country of East Africa) leave
the ICC after ratifying the Rome Statute.