Group 1

MEMORIAL FOR THE JOSE MARIA COLLEGE- COLLEGE OF LAW MOOT

WITHDRAWAL OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

AFFIRMATIVE PARTY

NEGATIVE PARTY

COUNSEL FOR NEGATIVE PARTY

TOTAL WORD COUNT: 3,320

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 TABLE OF CONTENTS

Table of Contents …………………………………………………………………. 2

Index of Authorities …………………………………………………………………. 5

Statement of Jurisdiction …………………………………………………………. 7

Questions Presented …………………………………………………………………. 8

Statement of Facts …………………………………………………………………. 9

Summary of Pleadings …………………………………………………………. 11

First Pleading …………………………………………………………. 11

Second Pleading …………………………………………………………. 11

Third Pleading …………………………………………………………. 12

Main Pleadings …………………………………………………………………. 13

I. The withdrawal of the President of the Philippines from the International

Criminal Court is Unconstitutional …………………………. 13

A. The unilateral withdrawal of the President is not valid from the point of

view of the Constitution  …………………………………. 13

B. The Unilateral withdrawal of the President cannot be done without

violating the Constitution …………………………………. 14

C. The President does not have any factual or legal basis for the

Withdrawal …………………………………………………. 15

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II. The withdrawal of the Republic of the Philippines to the International

Criminal Court (ICC) deprives the Filipinos of the protection against those

crimes under the jurisdiction of the ICC. ………………………… 16

A. The dignity of every human person and respect to the human rights as a

policy enshrined in the Constitution and International Law must be

respected by the State ………………………………………… 16

B. The International Criminal Court serves as the Court of Last Resort in

case the State commits gross human rights violation ………… 17

C. The International Criminal court serves as the court of last resort in case
the State commits gross human rights violation and denial of
justice ………………………………………………………… 18

III. The Philippines violated international law for its withdrawal in the

ICC …………………………………………………………………. 19

A. The Republic of the Philippines violated customary international law when it

withdrew in the ICC for failing to uphold Art. 28 of the Universal

Declaration of Human Rights which provides that everyone is entitled to a

social and international order in which the rights and freedoms set forth in

this declaration can be fully realized. …………………………………. 19

B. B. The Republic of the Philippines violated international law being a subject

of the same as an entity possessing international rights and obligations and

having the capacity to maintain its rights by bringing international claims

but failing to be responsible for its breaches of obligation by being subjected

to such claims. …………………………………………………………. 20

3
 C. The Republic of the Philippines violated international law for failing to

protect the right of the people to resort to the international plane, in this case

the International Criminal Court, for violations of peremptory norms or jus

cogens. ………………………………………………………… 21

Prayer for Relief ………………………………………………………… 22

4
 INDEX OF AUTHORITIES

TREATIES AND CONVENTION

Rome Statute of the International Criminal Court…………………………………….…… 10

BOOKS

Checks and balances", Encyclopedia Britannica, 2017 …………………………..… 13

Section 21, Article 7, 1987 Philippine Constitution …………………………………….. 13

RA 9851, "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and

Other Crimes Against Humanity" …………………………………………………….. 15

International Human Rights, Brownlie’s Principles of Public International Law (2008) ….16

Article 11, 1987 Philippine Constitution……………………………………………………16

III RECORD 781-782; IV RECORD 12-2………………………………………………….16

Carino v. Commission on Human Rights, G.R. No. 96681, December 2, 1991; Export Processing

Zone Authority v. Commission on Human Rights, G.R. No. 101476, April 14, 1994; Simon, Jr.

v. Human Rights Commission, 229 SCRA 117 (1994) ……………………………………….17

Understanding the International Criminal Court, International Criminal Court………….....17

International Responsibility of a State, Higgins, Chapter 9 ………………………………17

State Responsibility to International Law, Magallona 2005 ………………………………17

5
International Human Rights, Brownlie’s Principles of Public International Law (1999) 5 ICSID

Reports 269,290…………………………………………………………………………….17

ARTICLES

Bernardo, P (2014, November 18). "Edca: Treaty or executive agreement?", Philippine Daily

Inquirer …………………………………………………………………………….. 14

Peace or Justice: The ICC’s Role in the Protection of Human Rights…………..…………17

International State Crime Initiative……………………………………………..………….17

History and Objectives of the Universal Declaration of Human Rights……………………18

The International Criminal Court by the Human Rights Watch……………………………18

Article 62, Vienna Convention on the Law of Treaties ………………………..…… 20

Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports

1949 p 174, 179 ………………………………………………………………………20

6
 STATEMENT OF JURISDICTION

Pursuant to the unilateral withdrawal of the President of the Republic of the Philippines

from the International Criminal Court, the Party hereby submits to this Court their dispute

concerning questions relating to the validity of the decision of the President and its legal

consequences in the international law arena.

Further, the International Court of Justice is hereby requested to adjudge the dispute on

the basis of the rules and principles of general international law, as well as any applicable

treaties. The Court is also requested to determine the legal consequences, including the rights and

obligations of the Party, arising from its Judgment on the questions presented. The Party has

agreed to accept any Judgment of the Court as final and binding upon them and shall execute it

in its entirety and in good faith.

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 QUESTIONS PRESENTED

1. Whether the withdrawal of the Republic of the Philippines to the Rome Statute is

unconstitutional.

2. Whether the withdrawal of the Philippines to the International Criminal Court

deprives the Filipinos of the protection against those crimes under the jurisdiction of

the court.

3. Whether or not the Philippines violates international law for its withdrawal on the

International Criminal Court.

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 STATEMENT OF FACTS

On July 17, 1998 at Rome, the International Criminal Court was established as a

permanent institution which shall have the power to exercise its jurisdiction over persons for the

most serious crimes of international concern and shall be complementary to national criminal

jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of

the Rome Statute of the International Criminal Court.1 The Court shall have international legal

personality and shall also have such legal capacity as may be necessary for the exercise of its

functions and the fulfilment of its purposes. The Court may also exercise its functions and

powers, as provided by the Statute, on the territory of any State Party and, by special agreement,

on the territory of any other State.2 The jurisdiction of the Court shall be limited to the most

serious crimes of concern to the international community as a whole. The Court has jurisdiction

in accordance with this Statute with respect to the following crimes - (a) The crime of genocide;

(b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.3

A State which becomes a party to Rome Statute of International Criminal Court thereby

accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.4 And on

August 30, 2011, Philippines deposited its instrument of ratification of the Rome Statute. The

ICC may therefore exercise its jurisdiction over Rome Statute crimes committed on the territory

of the Philippines or by its nationals from 1 November 2011onwards.5

On February 8, 2018, a preliminary examination of the situation in the Philippines was

announced by the International Criminal Court based on the alleged crimes committed by the

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party state since July 1, 2016, in the context of the "war on drugs" campaign launched by the

Government of the Philippines. The court specifically alleged that since July 1, 2018, thousands

of persons have been killed for reasons related to their alleged involvement in illegal drug use or

dealing. While some of such killings have reportedly occurred in the context of clashes between

or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings

in the course of police anti-drug operations.6

On March 19, 2018, the International Criminal Court was officially notified by the

United Nations that the Republic of the Philippines had on March 17, 2018 deposited a written

notification of withdrawal from the Rome Statute, the Court's founding treaty, with the United

Nations Secretary-General as the depositary of the Statute.7 Thereafter, some senators and the

members of Philippine Coalition for the International Criminal Court challenged the executive

branch’s action before the Supreme Court. However, the tribunal has yet to resolve the pleas

after six months since it just begun holding oral arguments on the merits of the withdrawal’s

Constitutionality.

_________________
1
Article 1, Rome Statute of the International Criminal Court
2
Article 4, Rome Statute of the International Criminal Court
3
Article 5, Rome Statute of the International Criminal Court
4
Article 12, Rome Statute of the International Criminal Court
5
International Criminal Court
6
International Criminal Court
7
International Criminal Court

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 SUMMARY OF PLEADINGS

FIRST PLEADING

The withdrawal of the President of the Republic of the Philippines from the International

Criminal Court is not valid, ineffectual and unconstitutional. The unilateral withdrawal of the

President is not valid from the point of view of the Constitutional law because it bypassed the

two-step procedure by the government for the Philippine membership in the International Crime

Court on accession. Accession and withdrawal are parallel actions which would require parallel

procedures. Since the accession of the Rome Statute by the President was concurred by the

Senate, withdrawal requires a similar concurrence.

The President cannot unilaterally withdraw without violating the Constitution. Treaties

embody an exhibit of shared responsibility between two branches of the government. All treaties

ratified by the President shall be referred to the Senate for its concurrence.

The unilateral withdrawal by the President is arbitrary and whimsical devoid of legal and

factual basis.

SECOND PLEADING

The withdrawal of the Republic of the Philippines to the International Criminal Court

(ICC) deprives the Filipinos of the protection against those crimes under the jurisdiction of the

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ICC. The ICC only investigates and charges those who have committed the gravest crimes of

humanity, when warranted.

With the failure of a State Party to investigate and act on these crimes, the ICC serves as

the court of last resort, which aims to end impunity by holding accountable those who are

responsible for their crimes and prevent these crimes from happening again.

THIRD PLEADING

The Republic of the Philippines violated international law when it withdrew from the

International Criminal Court for failing to uphold the rights provided for in the Universal

Declaration of Human Rights. Any deviation from the avowed duty to protect the rights of the

people especially in the international plane is a violation of the international law.

The Republic of the Philippines being a subject of international law failed to be

responsible for its breaches of obligation by being subjected to international claims. Thus, by

whimsically and arbitrarily withdrawing from the ICC, the same did not embody the principle of

pacta sunt servanda.

Lastly, the Republic of the Philippines violated international law for failing to protect the

right of the people to resort to the international plane, in this case the International Criminal

Court, for violations of peremptory norms or jus cogens. The breach of an obligation arising

under a peremptory norm of general international law is serious if it involves a gross or

systematic failure by the responsible State to fulfill the obligation.

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 MAIN PLEADINGS

I.               THE WITHDRAWAL OF THE PRESIDENT OF THE PHILIPPINES FROM

THE INTERNATIONAL CRIMINAL COURT IS UNCONSTITUTIONAL

A.    THE UNILATERAL WITHDRAWAL OF THE PRESIDENT IS NOT VALID

FROM THE POINT OF VIEW OF THE CONSTITUTION

There is a two-way procedure by the government for Philippine membership in

the International Criminal Court. First, the government to the senate acceded to the

Rome Statute. Second, upon accession, through the Department of Foreign Affairs,

deposited the notice of accession with the United Nations Secretary General pursuant

to Article 125(2) of the Rome Statute.1

Accession and withdrawal are parallel actions requiring parallel procedures. A

treaty ratified by the President and concurred by the Senate becomes part of the law

of the land and may not be undone without the shared power that put it into effect

which are both the combined powers of the executive and the legislative. Since

ratification or accession of the Rome Statute by the President was concurred by the

Senate, withdrawal, as a constitutional matter, requires a similar concurrence. This is

part of the system embodied in our constitutional law which is the system of checks

and balances. The concept of checks and balances is part of the principle of

separation of power where it prohibits the concentration of power in one department

13

1
Article 125(2), Rome Statute of the International Criminal Court
that it might result into arbitrariness of another.2 If the President alone enjoyed the

unfettered prerogative to enter into treaties, he could effectively alter the Philippine

legal system without the participation of the legislative. The same would be true in

respect of denunciation or withdrawal from membership in a treaty organization.

B. THE UNILATERAL WITHDRAWAL OF THE PRESIDENT CANNOT BE

DONE WITHOUT VIOLATING THE CONSTITUTION

A treaty transformed into a domestic law is a shared responsibility between two

branches of the government. Section 21 of Article 7 of the 1987 Constitution

provides, “no treaty of international agreement shall be valid and effective unless

concurred in by at least two-thirds of all the members of the Senate.” 3 A treaty

already transformed into Philippine law cannot be undone by the one-sided act of the

President. Only the Congress can undo its own act. Unless these acts are voided by

the courts.

Executive agreements and treaties are practically the same in their ability to bind

the Philippine government to an agreement with another government. A treaty needs

the concurrence of the Senate in order to be valid while an executive agreement needs

only the signature of the President or his representative without need of Senate

concurrence.4

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 __________________
3
Section 21, Article 7, 1987 Philippine Constitution
4
Bernardo, P (2014, November 18). "Edca: Treaty or executive agreement?", Philippine Daily Inquirer
Since the Rome Statute has the same status as a law, the President has also the

constitutional duty to execute this treaty. Therefore, this duty prevents the President

from abrogating the treaty himself and if abrogation is desired, the proper procedure

would be for Congress to be the one to abrogate the treaty by passing a law.

Thus, the unilateral withdrawal is interference with the Congress in its

performance of duties and powers. Such withdrawal therefore is the violation of the

doctrine of separation of powers.

C. THE PRESIDENT DOES NOT HAVE ANY FACTUAL OR LEGAL BASIS

FOR THE WITHDRAWAL

Assuming that treaty commitments may be unilaterally withdrawn, the

President does not have any factual or legal basis for its withdrawal other than the

President’s whimsical and arbitrary decision.

Admittedly, the relevant core crimes penalized in the Roman Statute have

been reproduced in the Philippines particularly Republic Act No. 9851.5 This is

pursuant to the principle of complementarity. The preliminary investigation

conducted by the ICC Prosecutor is part and parcel of the principle of

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 complementarity. Unfortunately, the Philippines abruptly and irrationally

withdrew.

5
RA 9851, "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other
Crimes Against Humanity"

II. THE WITHDRAWAL OF THE REPUBLIC OF THE PHILIPPINES TO THE

A. RECOGNIZING THE DIGNITY OF EVERY HUMAN PERSON AND RESPECT

Human rights are a broad area of concern. They must be decided in reference to the

applicable law, whether it is the law of a particular state, the provisions of a convention, or

principles of general international law, and human rights treaties negotiated and entered into by

states which obliges state parties as to the treatment of people including their own nationals. 1

In the Philippines, its fundamental law has guaranteed the protection and dignity of every

human. Article II Section 11 of the 1987 Constitution provides that the State values the dignity

of every human person and guarantees full respect for human rights.2

Hence, in Article XIII of the Philippine Constitution, it created an independent office called

the Commission on Human Rights. The principal function of the Commission is investigatory. In

fact, in terms of law enforcement, this pretty much is the limit of its function. Beyond

investigation, it will have to rely on the Justice Department which has full control over

1
International Human Rights, Brownlie’s Principles of Public International Law (2008)
2
Article II, 1987 Philippine Constitution

16
prosecutions. Thus, under Section 18(9), it can only request assistance from executive offices. 3 It

may not issue writs of injunction or restraining orders against supposed violators of human rights

to compel them to cease and desist from continuing their acts as complained of. 4

On the other hand, the International Criminal Court’s primary mission is to help to put an end

to impunity for the perpetrators of the most serious crimes of concern to the international

community as a whole, and thus contribute to the prevention of such crimes. It is established to

investigate, prosecute, and try individuals accused of committing the crime of genocide, crimes

against humanity, war crimes, and crimes of aggression. 5 One of the goals of the International

Criminal Court is to deter the worst violations of international law as a means of protecting

fundamental human rights.6

B. INTERNATIONAL RESPONSIBILITY OF THE STATE FOR ITS

largely committed, instigated or condoned by governments and their officials.7 In

international law, every internationally wrongful act of a state entails international

responsibility. International responsibility arises as a consequence of illegal acts or failure of

3
III RECORD 781-782, IV RECORD 12-23
4
Carino v Commission on Human Rights G.R. No. 96681, December 2, 1991; Export Processing Zone
Authority v. Commission on Human Rights, G.R. No. 101476, April 14, 1994; Simon, Jr. v Human
Rights Commission, 229 SCRA 117 (1994)
5
Understanding the International Criminal Court, International Criminal Court
6
Peace or Justice: The ICC’s Role in the Protection of Human Rights
7
International State Crime Initiative (2014)

17
 8
a State to observe obligations under international law. Thus, if a State violates an

international obligation, it bears responsibility for that violation. 9

C. THE INTERNATIONAL CRIMINAL COURT SERVES AS THE COURT OF

A denial of justice could be placed if the relevant courts refuse to entertain a suit, if they

subject to undue delay, or if they administer justice in a seriously inadequate way… There is a

fourth type of denial of justice, namely the clear and malicious application of the law. This type

of wrong doubtless overlaps the notion of pretence form to mask a violation of international

law.10

Where domestic legal proceedings fail to address human rights abuses, mechanisms and

procedures for individual and group complaints are available at the regional and international

level to help ensure that international human rights standards are indeed respected, implemented,

and enforced at the local level. The International Criminal Court does not replace national

criminal systems; rather it complements them. It can investigate and, where warranted, prosecute

and try individuals only if the State concerned does not, cannot, or is unwilling genuinely to do

8
Magallona, 2005
9
Higgins, Chapter 9
10
(1999) 5 ICSID Reports 269,290

18
so. 11 Hence, the International Criminal Court serves as the court of last resort for the prosecution

of serious international crimes, and crimes against humanity. 12

As a judicial institution with an exclusively judicial mandate, it is not subject to political

control. As an independent court, its decisions are based on legal criteria and rendered by

impartial judges in accordance with the provisions of its founding treaty, the Rome Statute, and

other legal texts governing the work of the Court. 13

III.THE PHILIPPINES VIOLATED INTERNATIONAL LAW FOR ITS

WITHDRAWAL IN THE ICC.

A. THE REPUBLIC OF THE PHILIPPINES VIOLATED CUSTOMARY

INTERNATIONAL LAW WHEN IT WITHDREW IN THE ICC FOR FAILING

TO UPLHOLD THE RIGHTS PROVIDED FOR IN THE UNVERSAL

DECALARATION OF HUMAN RIGHTS.

As a member of the United Nations, the Republic of the Philippines voted in favor of the

declaration which was adopted and proclaimed by the UN General Assembly in 1948 as a

common standard of achievement for all peoples and nations, to the end that every individual and

every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and

education to promote respect for these rights and freedoms and by progressive measures, national

11
History and Objectives, Universal Declaration of Human Rights
12
International Criminal Court, Human Rights Watch
13
Understanding the International Criminal Court, International Criminal Court

19
and international, to secure their universal and effective recognition and observance, both among

the peoples of Member States themselves and among the peoples of territories under their

jurisdiction.14

Any deviation from the avowed duty to protect the rights of the people especially in the

international plane is a violation of the international law.

B. The Republic of the Philippines violated international law for whimsically and

arbitrarily withdrawing from the International Criminal Court as it did not embody the

principle of pacta sunt servanda.

By whimsically and arbitrarily withdrawing from the ICC after the onset of the

investigation against the President of the Republic, the same did not embody the principle of

pacta sunt servanda. Withdrawal can be had only for a valid cause such as the application of the

principle of rebus sic stantibus as provided for by the Vienna Convention on the Law of

Treaties.15

The Republic of the Philippines being a subject of the international law does not only

have the capacity to possess international rights and obligations and maintain the same by

bringing international claims; it must also bear the responsibility for its breaches of obligations

by being subjected to the same claims.16

14
Ibid.
15
Article 62, Vienna Convention on the Law of Treaties.
16
Reparation for Injuries Suffered in the Service of the United nAtions, ICJ Reports 1949 p 174, 179.

20
 D. THE REPUBLIC OF THE PHILIPPINES VIOLATED INTERNATIONAL LAW

FOR FAILING TO PROTECT THE RIGHT OF THE PEOPLE TO RESORT TO

THE INTERNATIONAL PLANE FOR VIOLATIONS OF PEREMPTORY

NORMS OR JUS COGENS.

Article 40 of the ILC Articles on Responsibility of States for Internationally Wrongful

Acts of 2001 provides that the breach of an obligation arising under a peremptory norm of

general international law is serious if it involves a gross or systematic failure by the responsible

State to fulfill the obligation.

Failure of the Republic of the Philippines to protect the rights of its people is failure to

fulfill its obligation in international law.

21
 PRAYER FOR RELIEF

The Negative Party for the case of Withdrawal of the President of the Republic of the Philippines

from the International Criminal Court (ICC) respectfully requests this Court to adjudge and

declare that:

I.

The withdrawal of the President of the Republic of the Philippines from the International

Criminal Court is not valid, ineffectual and unconstitutional in accordance with the procedure

provided in the 1987 Philippine Constitution.

II.

The withdrawal of the President of the Republic of the Philippines from the International

Criminal Court deprives the Filipinos of the protection against those crimes under the

jurisdiction of the ICC.

III.

The withdrawal of the President of the Republic of the Philippines from the International

Criminal Court violated international law for failing to uphold Art. 28 of the Universal

Declaration of Human Rights.

22