Implementation of Treaties

Judicial Decision – Ratification of Treaties

Senators Francis “Kiko” N. Pangilinan, Franklin M. Drilon, Paolo Benigno “Bam” Aquino IV, Leila M. de Lima, Risa Hontiveros, and Antonio “Sonny” F. Trillanes IV vs. Alan Peter S. Cayetano, Salvador C. Medialdea, Teodoro L. Locsin, Jr., and Salvador S. Panelo [G.R. No. 238875. 16 March 2021.]

Regarding ratification of treaties, the Court differentiated the definition of treaties under the Vienna Convention on the Law of Treaties and under domestic law. In Philippine domestic law, treaties are characterized as “international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts.”

Treaties under the Vienna Convention include all written international agreements, regardless of their nomenclature. In international law, no difference exists in the agreements’ binding effect on states, notwithstanding how nations opt to designate the document.

However, the law in the Philippines distinguishes treaties from executive agreements. Treaties and executive agreements are equally binding in the Philippines. However, an executive agreement “(a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with a narrower range of subject matters.” Executive agreements dispense with Senate concurrence “because of the legal mandate with which they are concluded.” They simply implement existing policies, and are thus entered into:

• (1) to adjust the details of a treaty;

• (2) pursuant to or upon confirmation by an act of the Legislature; or

• (3) in the exercise of the President’s independent powers under the Constitution.

The raison d’être of executive agreements hinges on prior constitutional or legislative authorizations. (Emphasis in the original, citations omitted) However, this Court had previously stated that this difference in form is immaterial in international law.

Treaties – Accession to the Beijing Treaty on Audiovisual Performances

The Philippines, through the Permanent Representative of the Philippines to Geneva Ambassador Evan P. Garcia, deposited its instrument of accession to the Beijing Treaty on Audiovisual Performances (BTAP) on 28 April 2021. Ambassador Garcia personally handed the instrument of accession to the World Intellectual Property Organization (WIPO) Director General Darren Tang at WIPO Headquarters.

Following the deposit of the instrument of accession, Ambassador Garcia stated that the BTAP guarantees the expansion of the protection given to Philippine musicians, singers, actors, and performers, providing them a uniform and effective umbrella of protection critical in an ever-shifting world. He highlighted the timeliness of the accession, as the Philippine creative economy was severely harmed in 2020, and that this treaty will allow the industry to bounce back and contribute to the economic recovery of the Philippines.

Judicial Decision – Government Use of an Area Classified as a Wetland of International Importance

Cynthia A. Villar, former member, House of Representatives, Lone District of Las Piñas City [supported by Three Hundred Fifteen Thousand Eight Hundred Forty-Nine (315,849) Residents of Las Piñas City] vs. Alltech COntractors, Inc., Philippine Reclamation Authority, Department of Environment and Natural Resources, Environmental Management Bureau and Cities of Las Piñas, Parañaque, and Bacoor [G.R. No. 208702. 11 May 2021.]

Alltech Contractors entered into Joint Venture Agreements with the cities of Las Piñas and Parañaque for the reclamation of land along the coast of Manila Bay. The Philippine Reclamation Authority approved the proposed reclamation projects. After the submission of various plans and the holding of hearings, the Environmental Management Bureau issued an Environmental Compliance Certificate for the project. Petitioner Villar, who was concerned that the proposed project would cause flooding in the adjacent barangays, filed a Petition for the Issuance of a Writ of Kalikasan before the Supreme Court. Villar asked that the reclamation projects be enjoined. The Court issued the writs and thereafter remanded the case to the Court of Appeals (CA) to accept the return of the writ and to conduct the necessary hearing, reception of evidence, and rendition of judgment. The CA denied the Petition. It reasoned that the proposed projects had complied with the legal requirements therefore and that Villar had failed to prove that the projects would expose the residents of the adjacent barangays to catastrophic environmental damage. Before the Supreme Court, Villar argued, inter alia, that the proposed project impinges on the viability and sustainability of the Las Piñas-Parañaque Critical Habitat and Ecotourism Area (LPPCHEA). She asked the Court to take judicial notice of the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Convention on Wetlands), an international treaty for the conservation and sustainable use of wetland which the Philippines is a signatory, and of the fact that on 15 March 2013, the Convention on Wetlands certified LLPCHEA as a “Wetland of National Importance. The Supreme Court denied the Petition.” It found that the classification of the LLPCHEA as a wetland of national importance and did not preclude the Philippine Government from undertaking reclamation projects adjacent to the said wetland.

In explaining its decision, the Court acknowledged the international responsibilities of the Philippines as a Contracting Party of the Convention on Wetlands. It, however, noted that these responsibilities do not mean that a reclamation project alongside or adjacent a designated wetland is absolutely prohibited, considering Paragraph 3, Article 2 of the Convention on Wetlands of International Importance especially Waterfowl Habitat, which states, “[t]he inclusion of a wetland in the List does not prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated.”

Thus, the Court explained that the classification of an area as a wetland of international importance does not diminish the control the government exercises over the wetlands and adjacent areas within its territory, as the government may continue to utilize these areas as it may deem beneficial for all its stakeholders.

Judicial Decision – Maternity and the Special Leave Benefits and the CEDAW

House of Representatives Electoral Tribunal vs. Daisy B. Panga-Vega [G.R. No. 228236. 27 January 2021]

Atty. Panga-Vega was Secretary of the House of Representatives Electoral Tribunal (HRET). In February 2011, she availed of the special leave benefit under Republic Act No. 9710 (RA 9710), otherwise known as the “Magna Carta of Women,” in order to undergo a total hysterectomy. One month later, Atty. Panga-Vega informed the HRET Chairperson that she was resuming her duties, and presented a medical certificate indicating that she was fit for work. The HRET directed Atty. Panga-Vega to complete her two-month special leave. After the HRET denied her reconsideration, she filed an appeal with the Civil Service Commission (CSC). The CSC issued a decision granting the appeal of Atty. Panga-Vega. The Court of Appeals affirmed the CSC decision.

In its Petition, the HRET argued that the CSC should not have applied suppletory the rules on maternity leave to the special leave benefit under RA No. 9710. On the other hand, Atty. Panga-Vega claims that the suppletory application of the rules on maternity leave to the special leave benefit is more in accord with the thrust and intent of RA 9710. The Supreme Court affirmed the decision and found that RA 9710 is social legislation meant to empower women.

In particular, the Court recognized that the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) acknowledges the need to guarantee the basic human rights and fundamental freedoms of women through the adoption in the political, social, economic, and cultural fields, of appropriate measures, including legislation, to ensure their full development and advancement.

Consistent thereto, no less than the fundamental law of the land imposes on the State the duty to protect working women by providing safe and healthful working conditions, as well as facilities and opportunities to enhance their welfare, and enable them to realize their full potential in the service of the nation. To fulfill the foregoing obligation under the CEDAW, and the 1987 Philippine Constitution to advance the rights of women, the government of the Philippines enacted RA No. 9710. This law acknowledges the economic, political, and socio-cultural realities affecting women’s work conditions and affirms their role in nation-building. It guarantees the availability of opportunities, services, and mechanisms that will allow women to actively perform their roles in the family, community, and society. As a social legislation, its paramount consideration is the empowerment of women. Thus, in case of doubt, its provisions must be liberally construed in favor of women as the beneficiaries.

Administrative Regulation – Implementation of the ICCPR and Adoption of the UN Rabat Plan of Act Proposed Test for Speech-Related Offenses

The Report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred dated 11 January 2013 or the UN Rabat Plan of Action suggested a high threshold be sought for defining restrictions on freedom of expression, incitement to hatred, and for the application of article 20 of the International Covenant on Civil and Political Rights. It proposed a six-part threshold test for expressions considered as criminal offences. This test involves an analysis of these factors:

• (a) Context;

• (b) Speaker;

• (c) Intent;

• (d) Content and form;

• (e) Extent of the speech act; and

• (f) Likelihood, including imminence.

In the 2020 Implementing Rules and Regulations (IRR) of Republic Act No. 11479, otherwise known as the Anti-Terrorism Act of 2020 (ATA), the Philippine Anti-Terrorism Council, led by the Department of Justice, adopted five of the six parts of the test proposed in the UN Rabat Plan of Action in analyzing whether the offense of “inciting to commit terrorism” has been committed. Rule 4.9 of the IRR provides, in part:

Rule 4.9. Inciting to commit terrorism – In determining the existence of reasonable probability that speeches, proclamations, writings, emblems, banners, or other representations would help ensure success in inciting the commission of terrorism, the following shall be considered:

1. Context: Analysis of the context should place the speech, proclamations, writings, emblems, banners, or other representations within the social and political context prevalent at the time the same was made and/or disseminated;

2. Speaker/actor: The position or status in the society of the speaker or actor should be considered, specifically regarding his or her standing in the context of the audience to whom the speech or act is directed;

3. Intent: What is required is advocacy or intent that others commit terrorism, rather than the mere distribution or circulation of material;

4. Content and form: Content analysis includes the degree to which the speech or act was provocative and direct, as well as the form, style, or nature of arguments deployed in the speech, or the balance struck between the arguments deployed;

5. Extent of the speech or act: Includes such elements as the reach of the speech or act, its public nature, its magnitude, the means of dissemination used and the size of its audience; and

6. Causation: Direct causation between the speech or act and the incitement.

The IRR provides for this framework to ensure consistency with the proviso in Section 4 of the ATA that states that terrorism shall “not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights.”

Judicial Decision – Freedom of Speech and the Constitutionality of the Definition of Terrorism and Related Crimes in the Philippine Anti-Terrorism Act of 2020

Atty. Howard M. Calleja, et. al. v. Executive Secretary, et. al. G.R. Nos. 252578, 252579, 252580, 252585, 252613, 252623, 252624, 252646, 252702, 252726, 252733, 252736, 252741, 252747, 252755, 252759, 252765, 252767, 252768, 16663, 252802, 252809, 252903, 25 2904, 252905, 252916, 252921, 252984, 253018, 253100, 253118, 253124, 253242, 253252, 253254, 254191 & 253420, [7 December 2021]

The 2020 Implementing Rules and Regulations (IRR) of Republic Act No. 11479, otherwise known as the Anti-Terrorism Act of 2020 (ATA) did not adopt the factor of likelihood or imminence proposed in the UN Rabat Plan of Action to analyze hate speech and other speech-related offenses. Instead, it adopted the factor of “causation.”

In this Decision, the Supreme Court construed speech-related offenses as not unconstitutional if they followed the standards in the 1969 decision of the Supreme Court of the United States in Brandenburg v. Ohio or the Brandenburg test which includes imminence as one of its determinative elements.

Specifically, the Court stated that constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is (a) directed to inciting or producing imminent lawless action and is (b) likely to incite or produce such action. Thereafter, the Court definitively stated that, to guard against any chilling effects on free speech, provisions on inciting to terrorism should only be considered crimes if the speech satisfies the Brandenburg test based on its nature and context.

Judicial Decision – The UN Declaration of the Rights of Indigenous Peoples and the Protection of the Rights of Indigenous Peoples in the Philippines

Diosdado Sama y Hinupas and Bandy Masanglay y Aceveda vs. People of the Philippines. [G.R. No. 224469. 5 January 2021.]

The accused in this case are members of the Iraya-Mangyan tribe, who were caught by the police cutting down one dita tree in Oriental Mindoro without a license. They were charged with violating Section 77 of PD 705 as amended, the Forestry Reform Code. The Regional Trial Court and the Court of Appeals found the tribe members guilty. Before the Supreme Court, the accused asserted their right, as indigenous people, under RA 8371, the Indigenous People’s Rights Act of 1997 (IPRA), to harvest the dita tree logs. The Supreme Court acquitted the accused, specifically finding that one element of the crime charged, that of cutting and collecting the tree without any authority, was not proven beyond a reasonable doubt.

In the course of its reasoning, the Supreme Court stated that the petitioners relied upon their elders, the non-government organization that was helping them, and the National Commission on Indigenous Peoples, that they supposedly possessed the State authority to cut and collect the dita tree as Ips for their indigenous community’s communal toilet. The Court further added that IP rights have long been recognized at different levels of the Philippine legal system, which seek to reconcile the regalian doctrine and the civilised concept of ownership with the indigenous peoples’ sui generis ownership of ancestral domains and lands, along with international covenants like the United Nations Declaration on the Rights of Indigenous Peoples, of which the Philippines is a signatory, and Philippine and international jurisprudence which identifies the forms and contents of IP rights.

The Court clarified that this recognition had not been transformed into a definitive and categorical rule of law when it is used as a defense by Ips in criminal cases arising from the exercise of their IP rights. However, the Court added, the confusion as to the true and inescapable merits of these IP rights in criminal cases justifies the claim that petitioners’ guilt for this malum prohibitum offense is reasonably doubtful.

Specifically, the Court found that there is reasonable doubt that the petitioners’ IP right to log the dita tree existed when taken in light of the more expansive definition of authority under the law, the bundle of petitioners’ IP rights both under the Constitution and IPRA, the international covenants like the United Nations Declaration on the Rights of Indigenous Peoples, of which our country is a signatory, and Philippine and international jurisprudence which identifies the forms and contents of IP rights.

Judicial Decision – The UN Convention on the Rights of the Child and the Abuse and Cruel Treatment of Children

St. Benedict Childhood Education Centre, Inc., and Fr. Ernesto O. Javier vs. Joy San Jose [G.R. No. 225991. 13 January 2021.]

San Jose is a preschool teacher at St. Benedict Childhood Education Centre. The parents of AAA, one of San Jose’s students, complained that she had refused to let their son go to the comfort room twice, despite him having properly asked for permission; the second time resulted in AAA wetting his pants. After the complaint was brought to the attention of St. Benedict and San Jose, AAA stated that San Jose called him a liar in front of his classmates, which caused them to taunt and bully him. St. Benedict formed an ad hoc committee to investigate the matter which San Jose denied the allegations. After investigation, the ad hoc committee recommended dismissal of San Jose. St. Benedict adopted their findings and dismissed San Jose on the ground of gross misconduct and unprofessional behavior in violation of her duty as a teacher.

San Jose filed a complaint for illegal dismissal before the Labor Arbiter (LA). The LA dismissed the complaint and the National Labor Relations Commission affirmed the decision. However, the Court of Appeals reversed, finding that the penalty of dismissal was too harsh in light of San Jose’s 27-year tenure at St. Benedict. However, the Supreme Court reversed the decision.

In deciding the case, the Supreme Court noted that

the United Nations Convention on the Rights of the Child (UNCRC) to which the Philippines is a signatory, recognizes a child’s fundamental right to dignity and self-worth. Thus, disciplinary measures in the school should conform to this right.

After narrating in detail the actions of San Jose, the Court stated the teacher’s cruel or inhuman treatment of AAA is not just trivial or meaningless. This makes her misconduct is grave, affecting not only the interest of the school but ultimately the morality and self-worth of an innocent five-year-old child. Her grave offense to the child merits the forfeiture of her right to continue working as a preschool teacher.

Judicial Decision – The Nelson Mandela Rules and the Treatment of Persons Deprived of Liberty

The People of the Philippines vs. Ramon “Bong” Revilla, Jr., Richard A. Cambe, and Janet Lim Napoles, Janet Lim Napoles [G.R. No. 247611. 13 January 2021.]

Janet Lim Napoles was convicted of Plunder relative to the utilization of Senator Ramon “Bong” Revilla, Jr.’s Priority Development Assistance Fund (PDAF). After being sentenced to reclusion perpetua, she appealed her conviction before the Supreme Court. She has been detained at the Correctional Institute for Women pending her appeal. She filed an Urgent Motion for Recognizance/Bail or House Arrest for Humanitarian Reasons Due to COVID-19. She argues that as a person suffering from Type 2 Diabetes, she is at risk of contracting COVID-19 inside the prison. She asserts, inter alia, the Nelson Mandela Rules, provide the basis for the release of persons deprived of liberty (PDLs) in times of public health emergencies. The Supreme Court denied her petition.

The Court explained that the revised United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) contain the universally acknowledged minimum standards for the management of prison facilities and the treatment of prisoners. It safeguards the healthcare and wellness of PDLs, as it provides that those who require specialized treatment or surgery should be transferred to specialized institutions or to civil hospitals. In addition, every prison should have a healthcare service tasked with evaluating and improving the physical and mental health of PDLs. Further, PDLs who are suspected of having contagious diseases be clinically isolated and given adequate treatment during the infectious period. Ultimately, the PDLs’ access to health care is a State responsibility, as provided in Rule 24 of the Nelson Mandela Rules.

The Court noted that Republic Act No. 10575 (RA 10575) or “The Bureau of Corrections Act of 2013” and its Revised Implementing Rules and Regulations (Revised IRR) expressly refer and adhere to the standards laid down in the Nelson Mandela Rules. Section 4 of RA 10575 states that the safekeeping of inmates shall include decent provision of quarters, food, water and clothing in compliance with established United Nations standards. The Court also quoted Rule II of the Revised IRR, which declares the state policy of promoting the general welfare and safeguarding the basic rights of every prisoner incarcerated in the Philippine national penitentiary creating an environment conducive to rehabilitation and compliant with the United Nations Standard Minimum Rules for Treatment of Prisoners (UNSMRTP).

The Court further quoted Rule IV Section 4 (a) of the IRR, which also referred to the UNSMRTP. However, the Court ruled that neither the Nelson Mandela Rules nor the other rules and the worldwide trend to decongest jail facilities due to COVID-19, support the release of PDLs pending the appeal of their conviction of a capital offense.

Judicial Decision – The Universal Declaration of Human Rights and the Freedom of Movement of Persons Charged with Criminal Offenses

Prospero A. Pichay, Jr vs. The Honorable Sandiganbayan (Fourth Division) and People of the Philippines, as represented by The Office of the Special Prosecutor [G.R. Nos. 241742 and 241753-59. 12 May 2021.]

The Office of the Special Prosecutor filed eight cases against Prospero Pichay Jr. with the Sandiganbayan for violation of the Manual of Regulation for Banks, in relation to RA 7653, RA 8791, RA 3019, and malversation. The Sandiganbayan motu proprio issued a Hold Departure Order (HDO) Resolution directing the Bureau of Immigration to prevent Pichay from leaving the country except upon prior written permission from the Sandiganbayan. Pichay filed a motion to lift the HDO but the Sandiganbayan denied his motion. The Sandiganbayan reasoned that the issuance of an HDO was a valid restriction on Pichay’s right to travel, as it was done in the exercise of the Sandiganbayan’s inherent power to preserve and maintain its jurisdiction over the case and the person of the accused. Pichay filed this Petition before the Supreme Court to challenge the dismissal of his motion. The Supreme Court dismissed the Petition finding that the Sandiganbayan had the inherent power to issue HDO s as a court of justice.

The Court explained that the right to travel and to freedom of movement is a fundamental right guaranteed by the 1987 Constitution and the Universal Declaration of Human Rights (UDHR) to which the Philippines is a signatory.

The Court cited Article 13 of the UDHR which provides that “everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country including his own, and to return to his country.”

But the Court ruled that “however, the exercise of one’s right to travel or the freedom to move from one place to another is not absolute.” “There are constitutional, statutory, and inherent limitations regulating the right to travel.”

The Court further clarified that the Constitution and the UDHR should not be construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. “When a court has the appropriate jurisdiction vested by law, all auxiliary writs, process, and other means necessary to carry it into effect may be employed by such court or officer.”

Judicial Decision – Racial Discrimination and Rights of Workers

Aniceto B. Ocampo, Jr. vs. International Ship Crew Management Phils., Inc. (currently: D’Amico Ship Ishima Phils., Inc.), Ishima PTE. Ltd., Nora B. Ginete, and Victor C. Velonza [G.R. No. 232062. 26 April 2021.]

Ocampo was hired by International Ship Crew Management Phils. as Captain of MT Golden Ambrosia. Ocampo was relieved of his duty after it came to light that he had exhibited a racist attitude towards Myanmar crew members. He had allegedly shouted profanity at them, called them ‘animals’ and rationed their drinking water. Ocampo filed a complaint for illegal dismissal before the Labor Arbiter (LA). The LA dismissed the complaint finding that the dismissal was valid. The National Labor Relations Commission affirmed the LA Decision. The Court of Appeals likewise upheld the validity of the dismissal, reasoning that his racist behavior constituted serious misconduct. The Supreme Court dismissed the petitions.

The Court explained that the petitioner’s dismissal was due to this racist treatment of his subordinates, particularly his name-calling and for depriving the subordinates of drinking water. The pattern shown in his conduct demonstrated that he committed such an act deliberately.

More than creating hostile and inhumane working conditions, these incidents also display the petitioner’s prejudice against his crew members, who are of different national and ethnic origin. To refer to other human beings as “animals” reflects the sense of superiority the petitioner has for himself and how he sees others as subhuman.

Racial discrimination is a grave issue. Discrimination on the basis of race, nationality, or ethnic origin has deep historical roots and is a global phenomenon that still exists today. Racist attitudes have cost numerous lives and livelihoods in the past as in the present, and they should no longer be tolerated in any way. The State had formally made clear its intention to end racial discrimination as early as the 1960s when the Philippines signed the International Convention on the Elimination of All Forms of Discrimination.

Judicial Decision – Constitutionality of the Definition of Terrorism and Certain Procedures in the Philippine Anti-Terrorism Act of 2020

Atty. Howard M. Calleja, et. al. v. Executive Secretary, et. al. G.R. Nos. 252578, 252579, 252580, 252585, 252613, 252623, 252624, 252646, 252702, 252726, 252733, 252736, 252741, 252747, 252755, 252759, 252765, 252767, 252768, 16663, 252802, 252809, 252903, 25 2904, 252905, 252916, 252921, 252984, 253018, 253100, 253118, 253124, 253242, 253252, 253254, 254191 & 253420, [7 December 2021]

In this case, the Supreme Court decided the merits of the numerous petitions challenging the constitutionality of the Republic Act (R.A.) No. 11479 or the “Anti-Terrorism Act of 2020” (ATA).

The Court reiterated that there is no consensus definition of terrorism in the international community. This is supported by the observation of the UN Office on Drugs and Crime (UNODC) that the 2011 judgment of the Special Tribunal for Lebanon, which had declared that there exists a customary definition of transnational terrorism, has been widely criticized. The absence, however, of an internationally-accepted standard definition of terrorism is not a concern. The principle of incorporation supports the position that “domestic law will prevail in practice, including for constitutional reasons.” Thus, the Court has approached the definitional issue primarily from the perspective of Philippine constitutional law and criminal law theory, while recognizing that there will be a time when international law will come into play with some of the other issues of a terrorism case.

The Court ruled that the language of the ATA “shows that it is not overbroad since it fosters a valid State policy to combat terrorism and protect national security and public safety, consistent with international instruments and the anti-terrorism laws of other countries.” It is noted that the “ATA’s definition of terrorism under the main part of Section 4 is congruent with the UN’s proposed Comprehensive Convention on International Terrorism.” It also noted that “the ATA definition is also similar to the definition as provided under Title II, Article 3 of Directive (EU) 2017/541 of the European Union.” Quoting from the Anti-Terror laws of the UK and Singapore the Court noticed that “patterns from the different definitions of terrorist acts in other international instruments equally bear similarities to the definition adopted under Section 4 of the ATA.”

Statements/Communications – Request to Defer Investigation by the Office of the Prosecutor into the Philippine Situation

The Republic of the Philippines invoked Article 18(2) of the Rome Statute of the International Criminal Court in requesting a deferral of the Office of the Prosecutor’s (OTP) investigation into the Philippine situation and the alleged crimes of humanity committed in the country in the context of the ‘war on drugs.’

On 14 June 2021, the OTP requested the Pre-Trial Chamber I (PTC) of the International Criminal Court (ICC) for authorization to open an investigation into the Situation in the Republic of the Philippines between 01 November 2011 and 16 March 2019. This authority was granted by the PTC on 15 September 2021.

Two months after, on 18 November 2021, the OTP notified the PTC of the Philippines’ request for deferral under Article 18(2) of the Rome Statute. This provision states that the State being investigated may inform the ICC “that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes” under the Rome Statute, and by virtue of that domestic investigation, request a deferral of the investigation being conducted by the OTP.

In its Request for Deferral through a Letter dated 10 November 2021 sent by the Ambassador of the Republic of the Philippines to the Netherlands, the Philippines justified its request on account of the following:

1. the preliminary investigation being conducted by the Department of Justice (DOJ) using the Philippines Rules on Criminal Procedure and Administrative Order No. 35 which is the mechanism used to investigate extralegal killings;

2. the ongoing investigation and use of administrative procedures of the Internal Affairs Service of the Philippine National Police, including the 52 cases being reviewed by the DOJ;

3. the full functioning of Philippine courts;

4. the availability of judicial remedies such as the writs of amparo and habeas data; and

5. the cooperation of the Philippines under the UN Joint Programme created by UN Human Rights Council Resolution 45/3 entitled “Technical cooperation and capacity-building for the promotion and protection of human rights in the Philippines.”

In its Request for Deferral, the Philippines explains that these incidents and items show that it is “investigating or has investigated its nationals or others within its jurisdiction with respect to the alleged crimes against humanity of murder under Article 7(1)(a)” of the Rome Statute.

Treaties – Philippine Senate Concurred in the Ratification of the Treaty on the Prohibition of Nuclear Weapons

On 01 February 2021, the Philippines Senate gave its concurrence to the ratification of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Senate Resolution No. 83, which expresses this concurrence, states its premises:

Whereas the Treaty prohibits States Parties from (i) developing, testing, producing, manufacturing, transferring, possessing, stockpiling, using or threatening to use nuclear weapons; (ii) assisting, encouraging or inducing anyone to engage in said activities; and (iii) allowing nuclear weapons to be stationed, installed or deployed in their respective territories;

Whereas, the Treaty obligates States to provide assistance to individuals affected by the use or testing of nuclear weapons, and to take appropriate measures towards the environmental remediation of contaminated areas;

Whereas, consistent with the Treaty, the Philippines has a comprehensive Safeguards Agreement with the International Atomic Energy Agency, through the Treaty on the Non-Proliferation of Weapons signed on 21 February 1973 and which entered into force on 16 October 1974, and the Additional Protocol thereto, signed on 30 September 1997, and which entered into force on 26 February 2010;

The Department of Foreign Affairs commemorated the entry into force of the treaty for the Philippines on 19 May 2021.