Terrible advice
Whoever gave President Duterte legal advice that led to his decision “withdrawing [the Philippine] ratification of the Rome Statute effective immediately” did both the country and the President a serious disservice. In the first place, the escalating series of announcements—first a three-page “Statement of the President of the Republic of the Philippines” (from which the passage above is quoted), followed by varying explanations by Palace officials, then a 15-page “Statement of the President of the Republic of the Philippines on the Jurisdiction of the International Criminal Court,” then the formal notice to the secretary general of the United Nations—painted a revealing picture of rolling rationalizations, obvious to the nonpartisan eye. The least the President’s lawyers could have done was to insist on strict message discipline. Instead, the cacophony that began blaring on Wednesday, March 14, showed to an unbelieving world that the Duterte administration was trying out different reasons. The one justification that actually counts was the reason (the only one) advanced by Ambassador Teodoro Locsin Jr. in his notice to the office of Secretary General António Guterres, namely, the supposed politicization and weaponization of human rights.
Second, the phrasing itself (“withdrawing its ratification”) is thick with implication unfavorable to the President. By referencing the process of ratification, it creates an opening for those who were party to the process—namely, the Senate—to insist that they should have been included in any attempt to undo the ratification. The President’s lawyers should have spent a little more time thinking about the legal language the President would use, to prevent potential problems. In contrast, the official notice to the United Nations nuanced the matter in this way: “withdraw from the Rome Statute of the International Criminal Court …” To be sure, regardless of which phrasing was used, we believe that because the Senate is involved in the ratification of treaties, it must also be involved in any attempt at deratification. But why should the President’s lawyers use language that can be turned against him?
Third, withdrawal could not have been immediate—and the President’s lawyers should have reminded him repeatedly of that central fact. Whether the phrase was understood as referring to the date of transmittal of the official notice to the United Nations, or, more properly, as referring to the period when the withdrawal takes effect, the use of the phrase “effective immediately” only drew attention to the lawyers’ manifest lack of close reading of the basic documents. Withdrawal takes effect only after a full year after notice is officially received.
Fourth, if the use of immediate effectivity was deliberate, it only showed that the President’s lawyers did not understand international law, or indeed the web of interconnections that bind all countries dedicated to following rules. Regardless of the harrumphing we hear from the corridors in the Palace and in the Batasan, the ICC will continue to follow the clear provisions of the Rome Statute. Regardless of the President’s insistence, perhaps fed by his lawyers and legal advisers, that the treaty never took effect in the Philippines and thus the ICC could not have acquired jurisdiction over him or any other Philippine official, the ICC will continue to follow the clear provisions of the law. Even the pragmatic majority that now rules the Supreme Court will find it extremely difficult to justify a legal position negating the one-year withdrawal period. The justices would have to deem the long struggle to ratify the Rome Statute as constitutionally defective.
Fifth, and as columnist John Nery argued, the withdrawal only served to reinforce the position that holds that the ICC must intervene with an investigation of its own. Why? Because the withdrawal, and the legal advice that led to it, created the very condition that allows the ICC to conduct investigations into sovereign countries: the lack of genuine national proceedings.
Finally, as columnist Randy David observed, “What is upon us today is a global system that is evolving in ways never before seen. This system’s functional domains are, clearly, unevenly developed …. Being the last bastions of the nation-state, the legal and political systems are probably the slowest to evolve in their global form.” The legal advice the President received reinforces this impression that the Philippine legal and political systems remain backward, to our collective misfortune.