Drilon: Senate concurrence not prerequisite to rejoin ICC

President Ferdinand “Bongbong” Marcos Jr. has the legal authority to rejoin the International Criminal Court (ICC) without the need for Senate concurrence, according to former Senate President Franklin M. Drilon on Tuesday.

Drilon made this statement on Tuesday challenging the notion that Senate concurrence is a prerequisite for the Philippines to rejoin the ICC.

“In my view, the concurrence of the Senate is not necessary for the Philippines to rejoin the International Criminal Court (ICC). The Philippines can rejoin the ICC without returning to the Senate. The President can rely on the original resolution or ratification, as it remains valid and in effect,” Drilon said.

The former executive and justice secretary firmly believes that rejoining the ICC is purely an executive action, given the Senate’s prior ratification of the treaty.

Senate Resolution No. 57, which was passed on August 23, 2011, expressed the Senate’s concurrence in the ratification of the Rome Statute.

According to Drilon, “Resolution No. 57, like any other resolution or law, remains legally binding unless specifically repealed. Its ratification has never been revoked.”

Drilon cited previous executive actions, including the unilateral withdrawal from the ICC by former President Duterte in 2017.

Drilon also cited the abrogation of the two-decade-old Visiting Forces Agreement (VFA) in February 2020, wherein former President Duterte, after three suspensions, recalled the suspension and effectively reinstated the VFA.

It may be recalled that in February 2020, Pres. Duterte unilaterally terminated the VFA, only to later unilaterally reinstate it by retracting the termination letter for the VFA.

In Pangilinan v. Cayetano, where Drilon was one of the petitioners, the Court said that unless there’s a provision requiring Senate concurrence prior to withdrawal, the President can withdraw from a treaty, according to Drilon.

“The Senate’s concurrence in the ratification of the Rome Statute was never withdrawn. It therefore remains valid,” he stressed.

“If withdrawal from a treaty can be made through an executive action as shown by former President Duterte, then the decision to rejoin can likewise be made through an executive action by President Marcos,” Drilon said.

Also, Drilon said former President Duterte’s ICC withdrawal sets precedent for President Marcos.

“If Duterte could unilaterally withdraw from ICC, President Marcos should similarly have the authority to rejoin the ICC,” Drilon said.

“The situation would have been different if former President Duterte had sought the Senate’s concurrence when the country left the ICC, as that action would have been legally binding and established a precedent,” he emphasized.