What prevails and Why?

BACK to regular programming … I thought that my article on the South China Sea Arbitration would be my last piece that has anything to do with the Recto Bank incident.

However, due to people asking me about it and the conflicting views from “experts” on television programs, particularly on the topic of which prevails between the Philippine Constitution and international agreements like the United Nations Convention on the Law of the

Sea, I began to question what I remembered having learned from Hon. Rodolfo “Rudy” Elman (now Deputy Ombudsman for Mindanao), in Public International Law, and Hon. Gil Dela Banda (now MTC Judge of Makilala), in Conflict of Laws, when I was still in law school.

So, I decided to review the topic and I confirmed that my venerable teachers were correct, or, more accurately, my memory of what I learned from them was still on point.

So, will the Constitution prevail over International Agreements or is it the other way around? The truth is that BOTH are correct, depending on the situation.

“PACTA SUNT SERVANDA, a basic international law postulate that "every treaty in force is binding upon the parties to it and must be performed by them in good faith." The exacting imperative of this principle is such that a state may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty." (from the concurring opinion of Justice Presbitero Velasco, Jr. in the case of Magallona v. Ermita, G.R. No. 187167, August 16, 2011)

Under international law principles, a constitution is considered as a “municipal law” or a law enacted by a particular state. Under the principle of pacta sunt servanda, a state CANNOT INVOKE a municipal law, including its constitution, to avoid compliance with any obligation under an international treaty or agreement to which that state is a signatory.

Why? The rationale behind this principle is simply that a contrary rule would allow any signatory state to avoid compliance with any international agreement by simply enacting local laws that prohibit such compliance.

For example, if there is an international agreement where STATE “A” agreed to deliver 1,000 carabaos as war compensation to STATE “B”, STATE “A” cannot subsequently refuse to comply by stating that its Constitution prohibits the exportation of its domestic livestock.

Thus, the Philippines cannot invoke the 1987 Constitution in the international sphere for it to refuse compliance with any international agreement that it is a signatory to such as UNCLOS and the like.

Incidentally, talking about UNCLOS vis a vis claims of territory, which is also appearing to confuse a lot of people, Justice Antonio Carpio’s ponencia in the Magallona v. Ermita case was very clear on the matter.

“UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription, not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty's terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.”

On the other hand, when Philippine courts will assume jurisdiction over a case involving a treaty and there is a conflict with our municipal laws, the rule is to try and give effect to both but, if totally inconsistent, usually the one that is later in date is given effect, assuming, of course, that the treaty provision is self-executing, meaning that it does not need further legislation. Nonetheless, if it is totally incongruous or conflicting with our established public policy then our courts have the authority to disregard the treaty although we do recognize that this will expose our country to possible international sanctions.

The same is true with foreign laws that are applicable to certain cases in the Philippines in that, when properly pleaded and proved, these foreign laws can be given effect in the Philippines unless totally incompatible with our local laws and public policies.

For example, a divorce between two (2) American citizens, being valid in the U.S., will be recognized in the Philippines even if we do not have divorce laws here. However, if two (2) Filipinos will go to the U.S. and get a divorce there, that divorce will not be recognized in the Philippines even if valid in the U.S. because it would be contrary to Philippine laws and public policy since we maintain that our laws on family rights and duties, as well as on the status, condition and legal capacity of persons are binding on Filipinos even if they are abroad. For the same reason, a marriage between two (2) Filipinos of the same gender will not be recognized in the Philippines even if valid in the place where it was celebrated.

In summary, the fact is that in the INTERNATIONAL SETTING, particularly in relations between and among nations, our municipal laws, including our 1987 Constitution, cannot prevail over international conventions, agreements, treaties, and the like.

However, in the DOMESTIC SETTING, when foreign laws, as well as international agreements are totally incompatible with our own laws and public policies, our courts have the power and authority to disregard such incompatible foreign laws or international agreements, with the recognition, of course, that in the latter case, we might be exposed to sanctions from the international community.

Ergo, couples from our LGBTQ communities, no matter how in love they are, will have to wait until the

DOMESTIC SETTING changes before they can legally introduce each other as spouses. Apparently, love does not conquer law.

(Credits: Special thanks to Pros. Arnold C. Abejaron, ADDU Prof in Public International Law, for checking my work to see if I remembered right)