The questions of how, when and why States can withdraw from international agreements and with what consequences have long been overlooked in international law. The topic is even likened to mentioning divorce on a wedding day. However, the recent spate of withdrawals has bought the issue to the forefront of the international legal dialogue.
The withdrawal of states such as the Philippines from the International Criminal Court (“ICC”) has already raised considerable discussion about what impact withdrawal has on preliminary examinations already instigated by the Prosecutor. It is generally agreed, as decided by the Pre Trial Chamber in respect of Burundi, that withdrawal from the Rome Statute does not impact the ICC’s jurisdiction over crimes committed during the time in which the State was party to the Statute, even after withdrawal becomes effective.
While this may give the impression that these withdrawals create little challenge for the ICC’s current work, we are not out of the woods just yet. Complex and confusing questions at the intersection between domestic and international law remain. One such issue is the constitutional validity of treaty withdrawals under domestic law. Recent judicial review of executive attempts to withdraw from treaties reveal the significant role domestic courts play in interpreting international law and, ultimately, acting as a check and balance on the decision of a Head of State to exit a treaty regime.
In January 2017, the United Kingdom Supreme Court in Miller held that the executive could not exercise its prerogative powers to leave the European Union without parliamentary approval. Less than a month later in respect of the Rome Statute, the High Court of South Africa came to a similar though not identical conclusion in Democratic Alliance v Minister for International Relations. The Court ordered the executive to revoke the instrument of withdrawal and required any future withdrawal to be preceded by parliamentary approval.
The forthcoming decision of the Supreme Court of the Philippines in Senator Francis Pangilinan, et al. vs. Alan Peter Cayetano et al. & PCICC et al. vs. Salvador Madialdea et al. represents the next instalment in this growing line of domestic case law (“Supreme Court”). The Philippine Coalition of the International Criminal Court, six Senators and the Integrated Bar of the Philippines (the Petitioners) are challenging the legality of President Duterte’s withdrawal from the Rome Statute in March 2018, due to take effect in March 2019.
Under Article VII of the Philippine Constitution an international treaty will only be ‘valid and effective’ if a two thirds majority of the Senate is attained. However, like many constitutions, the article is silent on withdrawal. In their original petition, the Petitioners relied on both the Miller and Democratic Alliance decisions (see e.g. [38]) while the Office of the Solicitor General submitted that the Court should not recognise foreign judgements (see e.g. [114]. Interestingly, in the Philippines, seventeen treaties that have been entered into by the Senate since the Rome Statute specifically require a two third majority for withdrawal. A pending 2017 Senate Resolution (Resolution No. 289) also requires that the termination of any treaty will need a two third majority. However, the 2011 Resolution 546, which ratified the Rome Statute, is silent on withdrawal. The Government maintains Duterte’s decision forms part of his ‘comprehensive and exclusive prerogative…as Head of State and Government to conduct the country’s foreign affairs’ (see consolidated comment e.g. [2]).
Both the original petition and the Government’s consolidated comment along with the recent oral hearings also raise questions about whether The Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, adopted prior to the ratification of the Rome Statute, will continue to be ‘good law’ in the Philippines. The Government seeks to justify Duterte’s withdrawal on the basis that this Act provides sufficient protection and avenues of recourse for the Filipino people in respect of international crimes (see e.g. consolidated comment at [147]).
In addition to nuances in domestic law and the constitutional frameworks of each of these states, these judgments raise complex questions about the interface between domestic and international law. Of course, South Africa and the United Kingdom have both withdrawn their initial instruments of withdrawal and, in the case of the UK, swiftly sought parliamentary approval. However, the question of what occurs where, despite a domestic court’s decision, the executive maintains its right to. It remains unclear whether a finding of a domestic court that withdrawal is ineffective actually impacts the legality of that withdrawal in international law. Article 46 of the Vienna Convention on the Law of Treaties only recognises invalidity in domestic treaty-making procedure in the very limited circumstances of a ‘manifest violation’ of a ‘rule of internal law of fundamental importance’. Of course, this only applies to the conclusion of treaties and a state’s consent to be bound – not withdrawal. This lacuna in international law could well rear its head if, for example, the Supreme Court found Duterte’s withdrawal invalid but the President refused to withdraw his notice – a situation the Supreme Court alluded to when it noted such an ‘embarrassing’ situation would be a political matter for Duterte to solve.
While the decisions of the South African High Court and Kenyan Court of Appeal on the arrest and immunity of President Omar Al-Bashir do not concern the validity of treaty withdrawals, they do go to the heart of the African Union’s eagerness to withdraw from the Court. They also reiterate that domestic courts are simultaneously considering complex questions of international and domestic law alongside the ICC and, even a potential Advisory Opinion of the International Court of Justice.
The Philippine Supreme Court heard the final oral arguments in the case on 9 October 2018. The parties now have until November 8, 2018 to file further written arguments. It remains to be seen whether, even if the Petitioners overcome initial locus standihurdles, the Supreme Court will follow the decisions of UK and South African courts. At least one observer of the oral proceedings points to the Court’s scepticism towards the Petitioners, a general sense of ‘defensiveness’ over the Philippines’ legal system and ‘deep misgivings as to the role of the ICC’ as clues that the Court might deliver a negative result in the case. Unlike the fierce defence of principles such as the separation of powers by the Courts in Miller and Democratic Alliance, the Supreme Court bench seemed far more reticent ‘to tread on the powers of the President’.
Regardless of the outcome in the Philippines, it is clear that domestic courts are at the forefront of discussions on the law surrounding treaty withdrawal. No doubt, we can expect similar litigation in other jurisdictions in the near future. A decision by President Trump to formally withdraw from the Paris Agreement in November 2019, after the required four year waiting period lapses, will likely result in questions over whether the President has constitutional power to withdraw without congressional approval.
The recent spate of withdrawals from international treaties is a symptom of what His Excellency Judge James Crawford has diagnosed as a bad bout of ‘treaty fatigue’. The current trend of States seeking to exit binding international agreements, coupled with the decline in treaty making and rise of soft law instruments may be alarming and raises questions about the checks and balances needed to ensure accountability of states with ‘softer’ obligations. However, in considering the future of international treaties and the obligations or institutions they create, we must not overlook the role that domestic courts have, and will continue to have, in ensuring that a state’s decision to withdraw is, at least, in compliance with important internal and constitutional checks and balances. It seems that on questions of treaty withdrawal, national and international courts remain in what Her Excellency Rosalyn Higgins termed a performance of the ‘pas de deux’ (p. 1342).
Keilin Anderson is in her final semester of a Bachelor of Arts/Bachelor of Laws (Hons) at The University of Queensland. She is currently an intern in the chambers of a Judge on the International Criminal Court. These views are her own.