Mindanao Times

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)

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