By: David Gallagher
“My God, Duterte, stop doing this… you don’t have a right to take the lives of these people.”
-Sister of suspected drug dealer who was slain as part of Rodrigo Duterte’s ‘War on Drugs’
DUTERTE’S ‘WAR ON DRUGS’
In the 2016 Philippine Presidential Election, Rodrigo Duterte received roughly seven million more votes than his closest competitor. His platform focused largely on his extreme hard-line stance on crime, particularly with regard to the drug crimes that ran rampant in the Philippines. In comments leading up to Election Day, Duterte “promised to kill 100,000 people and dump so many bodies in Manila Bay that the fish would grow fat from feeding on them.” Once elected, Duterte expanded this position even further to encompass drug users, as well as dealers, “encourage[ing] people in slums to kill neighbors they believed were drug addicts” and “offering to award medals to citizens who shoot uncooperative drug dealers.” While there is no consensus as to the exact figure, there has undoubtedly been a marked increase in violence since Duterte assumed office on June 30, with estimates ranging from 3,000 to 3,800 dead as of late September 2016.
BACKLASH FROM INTERNATIONAL COMMUNITY
This uptick in violence has drawn the ire of the international community, with UN Special Rapporteurs alleging possible international law violations against the Philippines. Two Rapporteurs in particular, Agnes Callamard of France and Dainius Puras of Lithuania, have called on Duterte’s government to stop what they view as the “extrajudicial” killings of suspected drug criminals, suggesting that “Mr. Duterte’s directives calling on law enforcers and the public to kill suspected drug traffickers amount to incitement to violence and killing, a crime under international law.” In the face of these allegations, the Philippines did not back down, with Duterte suggesting a shield or immunity for police officers or other vigilantes who kill suspected drug criminals:
I will explain extra-judicial killings, for international release, if you want… My orders are for the police to go out and hunt for criminals. I tell them to arrest these criminals if they surrender peacefully, but kill them if they put up a violent struggle. I assume full responsibility for what happens.
Callamard, the special rapporteur on extrajudicial and summary executions stated, “Duterte’s promise of immunity and bounties to security forces who killed drug suspects violated international law.” Jose Manuel Diokno, one of the top human rights lawyers in the Philippines, and the chairman of the Free Legal Assistance Group (FLAG), agrees with Callmard: “Law officials [are] acting as judge, jury, and executioner. We might as well abolish our courts.” Even members of the Philippine Government have doubts as to the legality of Duterte’s violent campaign on crime, with Senator Leila de Lima declaring, “[W]hether it’s state-sanctioned or not, I would say at the very least all of these killings are state-inspired.”
Even the European Union (EU) is getting involved, as the Members of the European Parliament (MEPs) issued a statement:
MEPs urge the Philippine government to put an end to the current wave of extrajudicial killings, launch an immediate investigation into them, and adopt specific, comprehensive policies and programs in full compliance with national and international obligations and respect for human rights.
Duterte offered the following vulgar response: “I read the condemnation of the EU against me. I will tell them, f—k you.” While slightly less vulgar, Duterte’s response to the UN was perhaps even stronger. The President denied all allegations of international law violations and invited the UN to come to his country to investigate the situation. Duterte also declared that his county would “separate from the United Nations” and perhaps even form a rival international organization if the UN continued to interfere in his crackdown on crime.
LEAVING THE UN? IMPLICATIONS…
After suggesting the Philippines may leave the UN amidst criticism of the recent violence, Duterte was asked about the possible repercussions of his comments. His response? “What is repercussions? I don’t give a s—t to them.” While this kind of talk is certainly strong, comments from others within Duterte’s administration suggest the President’s remarks may be more bark than bite. Lauro Baja, former Philippine Permanent Representative to the UN, views Duterte’s remarks as “one of his patented gambit reactions to unfair comments.” Similarly, Presidential spokesperson, Ernesto Abella, suggested that Duterte was simply “reiterating national sovereignty and the fact that he did not welcome interventions or what he would consider meddling.”
If Duterte were serious; however, what would the implications of such a move be? First of all, it would be a drastic break from tradition: as one of the original signatories of the UN Charter on October 24, 1945, the Philippines has been a member of the United Nations since its inception.
More tangibly, however, experts agree that breaking away from the UN could have potentially disastrous effects on the nation’s economy, undoing what has been a remarkable recent improvement: a 7% growth in the second quarter of 2016 while experiencing a drop in unemployment to just 5.4%. Investors are concerned:
[T]he anti-drug campaign was calling into question the government’s commitment to the rule of law. One financial adviser says that since Mr. Duterte took over, investors are demanding a higher risk premium to hold Philippine assets. As Guenter Taus, who heads the European Chamber of Commerce in the Philippines, puts it, ‘A lot of people are hesitant to put their money into the Philippines at this point.’
In response to these concerns that investors may divert their money away from the Philippines, Duterte’s comments once again imply that he is unconcerned: “So be it. Leave our country. Then we can start on our own. I can go to China. I can go to Russia.” These remarks, combined with the negative comments Duterte made about President Obama, must be disconcerting to the United States, a strong military ally of the Philippines that sends hundreds of millions of dollars there each year to aid the Asian-Pacific nation. However, Duterte has said that, while he feels the U.S. has “failed” his country in some ways, he respected their relationship as military allies and would not pursue a military alliance with countries other than the U.S.
LEAVING THE UN? PRACTICALITY
Could the Philippines leave the United Nations if it wanted to? While the UN’s Charter does not include a withdrawal provision, it has been attempted before and, “withdrawing from the UN is considered a ‘sovereign act’ of its members.” The UN’s exclusion of a withdrawal provision is seen by many experts as a deliberate attempt to provide for a more permanent international organization in response to the failure and weaknesses of the UN’s predecessor organization, the League of Nations.
Despite the lack of a withdrawal provision, there is an alternative. Under customary international law, the doctrine of “rebus sic stantibus” allows parties to escape enforcement of a treaty due to a fundamental change of circumstances. This is codified in Article 62 of the Vienna Convention on the Law of Treaties, which states:
A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
A) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
B) The effect of the change is to radically to transform the extent of obligations still to be performed under the treaty
In the situation at hand, it is unlikely that a change in power in a democratic nation would constitute an unforeseen change in circumstances that was so “fundamental” that it “radically transformed the extent of the obligations to be performed under the treaty.” Moreover, 62(2)(b) states that a party seeking to escape a treaty by invoking rebus sic stantibus may not do so “if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation.” Here, the Philippines would be the party invoking the treaty, and it is likely that an arbitrator would find that it was their own breach of obligations (possible international human rights violations) that caused the fundamental change of circumstances they claim.
In all, it is unlikely the Philippines will separate from the United Nations, given the history, looming ramifications, and impracticality of such a move. Nonetheless, Duterte’s comments and his violent “war on drugs” pose interesting questions going forward: Could a country leave the UN? Will the international community step in to interfere with what they view as “extrajudicial killings?” Will Duterte’s campaign on drugs affect U.S.-Philippine relations?
For starters, Duterte is unlikely to bow to pressure from the international community. When the international advocacy groups such as Human Rights Watch and Amnesty International spoke out against him, Duterte responded: “I don’t care about human rights, believe me… There is no due process in my mouth.” As the leader of a country which holds a seat on the UN Human Rights Council until 2018, it will be interesting to see if the UN allows such comments to stand without repercussions.
In addition, the situation in the Philippines also raises interesting questions about state sovereignty with regards to domestic policies in conflict with policies of international organizations. Duterte has repeatedly chastised the UN, EU, and US for what he views as, “meddling” in his country’s sovereign affairs, and, as crazy as it seems, he may have a point. His approval ratings are sky-high, with all recent estimates putting the figure over 90%, suggesting that his people may want the international community to allow him to continue his “War on Drugs.” While the legality and morality of his policies are debatable, it is clear that his commitment to fighting crime has won over the vast majority of his people.
Lastly, we can consider the broader implications of the Philippines situation on the United Nations going forward. One of the main rationales for deliberately excluding a withdrawal provision from the U.N. Charter was to ensure member-nations did not use secession as a means to induce action on behalf of other countries that may be afraid to lose allies. However, if we re-consider Lauro Baja’s aforementioned observation that Duterte’s threat to leave the U.N. was simply a “gambit” (said in order to gain an advantage or produce a desired result) remark, then hasn’t Duterte accomplished the same thing that U.N. drafters sought to prevent? Note that, despite saying “f—k you” to the EU, calling President Obama “the son of a whore,” and asserting that the a U.N. Chief was a “devil,” the E.U. will still contribute roughly $65M in aid this year, while the United States is expected to give $188 M. Does this say more about the strength of our international institutions, or might the reluctance to interfere more strongly with Duterte stem from the fact that he has repeatedly threatened to turn to China as an ally? While the answers remain unclear, it seems that, for now, Duterte will continue to assert “a right to take the lives of these people.”
 Euan McKirdy, Duterte’s Crackdown: 6 Stories from the Front Lines, CNN (Sep. 3, 2016), http://www.cnn.com/2016/08/28/asia/philippines-voices-drugs-war/ [https://perma.cc/9HVF-R8ZC].
 #PHVote 2016 Official Election Results, The Rappler, http://ph.rappler.com/elections/2016/results/official [https://perma.cc/8PGQ-E9R4].
 Sceptred Bile: The Philippines Under Rodrigo Duterte, Economist (Sept. 17, 2016), http://www.economist.com/news/asia/21707167-new-president-may-undo-economic-gains-recent-years-sceptred-bile [https://perma.cc/XRH5-JP9Y].
 Paterno Esmaquel II, Philippines Not Leaving UN Amid Duterte Threat, The Rappler (Aug. 22, 2016, 12:12 PM), http://www.rappler.com/nation/143822-philippines-not-leaving-un-amid-duterte-threat [https://perma.cc/6XWP-WZNR].
 Philippines Leader Duterte Threatens to Quit UN Over Drugs Censure, Sky News (Aug. 22, 2016), http://news.sky.com/story/philippines-leader-duterte-threatens-to-leave-un-over-drugs-criticism-10546252 [https://perma.cc/2UTX-FB4B] [hereinafter Sky News].
 Philippines Duterte Gives Middle Finger to EU, Yahoo (Sept. 21, 2016), https://www.yahoo.com/news/philippines-duterte-gives-middle-finger-eu-083514242.html [https://perma.cc/RP63-T262]; Philippines’ Duterte Fierce Attack on Hypocritical EU, BBC (Sept. 21, 2016), http://www.bbc.com/news/world-asia-37429979 [https://perma.cc/2UJV-H2FW]; Ted Regencia, Philippines’ Duterte Unleashes More Profanity at the EU, Al Jazeera (Sept. 21, 2016), http://www.aljazeera.com/news/2016/09/philippines-duterte-unleashes-profanity-eu-160920193250592.html [https://perma.cc/MC2F-Q2VH]; Manuel Mogato and Karen Lema, Philippines’ Duterte Invites ‘Devil’ U.N. Chief, EU to Debate Rights, Reuters (Sept. 22, 2016, 6:58 AM), http://www.reuters.com/article/us-philippines-duterte-idUSKCN11S0FD [https://perma.cc/8RNW-6J4U].
 Philippines President Rodrigo Duterte is Not Committing Any Crimes, Legal Counsel Tells UN, Australian Broadcasting Company (Aug. 19, 2016), http://www.abc.net.au/news/2016-08-19/philippines-duterte-not-committing-crime-un/7768116 [https://perma.cc/VU5Y-BHNZ] [hereinafter Australian Broadcasting Company]; Amid Criticism of Drug War: Duterte Threatens to have PHL Leave ‘Inutile’ United Nations, GMA News Online (Aug. 21, 2016), http://www.gmanetwork.com/news/story/578393/news/nation/duterte-threatens-to-have-phl-leave-inutile-united-nations [https://perma.cc/2W4D-KTVW] [hereinafter Amid Criticism].
 VJ Bacungan, Duterte Threatens to Pull PH out of United Nations, CNN Philippines (Aug. 22, 2016, 6:47 AM PHT), http://cnnphilippines.com/news/2016/08/21/Duterte-threatens-to-leave-U.N.html [https://perma.cc/NMK3-6WMZ].
 Esmaquel, supra note 4.
 McKirdy, supra note 1.
 Rishi Iyengar, Inside Philippine President Rodrigo Duterte’s War on Drugs, Time (Sept. 15, 2016), http://time.com/4495896/philippine-president-rodrigo-duterte [https://perma.cc/N9GV-HWLC].
 Paul Dallison, President of the Philippines to EU: F—k You, Politico (Sept. 20, 2016, 5:23 PM CET), http://www.politico.eu/article/president-of-the-philippines-to-eu-swearing-language-killings-drugs/ [https://perma.cc/ZD64-6UE3].
 Australian Broadcasting Company, supra note 7.
 Amid Criticism, supra note 7; Esmaquel, supra note 4.
 Sky News, supra note 5.
 Michaela Del Callar, PHL Risks Global Isolation if it Separates from UN- Former Envoy, GMA News Online (Aug. 21, 2016, 5:20 PM), http://www.gmanetwork.com/news/story/578435/news/nation/phl-risks-global-isolation-if-it-separates-from-un-former-envoy [https://perma.cc/VRM6-BUEF].
 Patricia Lourdes Viray & Christina Mendez, Duterte’s Officials: Philippines Not Leaving UN, The Philippine Star (Aug. 22, 2016, 1:45 PM), http://www.philstar.com/headlines/2016/08/22/1616131/yasay-philippines-will-not-leave-un [https://perma.cc/5269-U8M8].
 Del Callar, supra note 17.
 Sceptred Bile, supra note 3.
 Philippine President Duterte Tells Foreign Investors They Can Leave if They Don’t Like Him, Ya Libnan (Sept. 23, 2016), http://yalibnan.com/2016/09/23/philippine-president-rodrigo-duterte-tells-foreign-investors-they-can-leave-if-they-dont-like-him/ [https://perma.cc/2984-WXW5].
 Philippines: Duterte Dares US, EU to Withdraw Aid, Al Jazeera (Oct. 6, 2016), http://www.aljazeera.com/news/2016/10/philippines-duterte-dares-eu-withdraw-aid-161006134133162.html [https://perma.cc/5RMU-MU8V].
 ‘Go Ahead, Withdraw Your Assistance’: Philippines’ Duterte Dares US, EU, RT News (Oct. 6, 2016, 5:44 PM), https://www.rt.com/news/361842-duterte-withdraw-assistance-us/ [https://perma.cc/7U5P-QN6D] [hereinafter RT News] .
 Del Callar, supra note 17; see also UN Charter.
 Levi A. So, Can Duterte Withdraw Philippine Membership to UN?, The Philippine Star (Aug. 22, 2016, 10:00 AM), http://www.philstar.com/news-feature/2016/08/22/1616117/can-duterte-withdraw-philippine-membership-un [https://perma.cc/D7DK-W4J8].
 Restatement (Third) of Foreign Relations Law of the U.S. § 366 (1987).
 Vienna Convention on the Law of Treaties art. 62, May 23, 1969, 1155 U.N.T.S. 331.
 Iyengar, supra note 11.
 Del Callar, supra note 17.
 Viray, supra note 18; Julia Ding, License to Kill: Duterte Clashes with the UN on Human Rights, The Politic (Aug. 28, 2016), http://thepolitic.org/license-to-kill-duterte-clashes-with-the-un-on-human-rights/ [could not get permalink – Error 502].
 So, supra note 26.
 Philippines’ Duterte Invites ‘Devil’ U.N. Chief, EU to Debate Rights, supra note 6; John Ted Cordero, EU Still Supports Duterte’s War on Drugs Despite Verbal Attack, GMA News (Oct. 1, 2016, 9:15 PM), http://www.gmanetwork.com/news/story/583476/news/nation/eu-still-supports-duterte-s-war-on-drugs-despite-verbal-attack [https://perma.cc/JR65-X4T3]; RT News, supra note 24; Philippines: Duterte Dares US, EU to Withdraw Aid, supra note 23; Patricia Lourdes Viray, Duterte: China Supported the Drug War; US, EU Only Criticized, The Philippine Star (Oct. 19, 2016, 11:34 AM), http://www.philstar.com/headlines/2016/10/19/1635201/duterte-china-supported-drug-war-us-eu-only-criticized [https://perma.cc/96BL-PK5E].
 McKirdy, supra note 1.