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Philippine treaties and the doctrine of incorporation

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Jemy Gatdula

Being Right

Philippine treaties and the doctrine of incorporation

A topic substantially discussed in law school is international law’s application within our municipal jurisdiction. In other words, may international law give rise to a demandable cause of action or defense before our local courts? The answer is in the Constitution.

Article II.2’s relevant part provides: “The Philippines … adopts the generally accepted principles of international law as part of the law of the land …”

From there, a couple of consequences are discernable. One is we adhere to the “dualist” theory (as opposed to the “monist”), which says international law is separate and distinct from municipal law.

Another is the application of the “doctrine of incorporation,” which “mandates that the Philippines is bound by generally accepted principles of international law which automatically form part of Philippine law by operation of the Constitution.” (Justice Carpio, in his dissent in Bayan Muna, 2011; citing Agpalo, International Law, 2006)

This is different from the “doctrine of transformation,” “which holds that the generally accepted rules of international law are not per se binding upon the State but must first be embodied in legislation enacted by the lawmaking body and so transformed will they become binding upon the State as part of its municipal law.” (Isagani Cruz, International Law, 2000)

So far, simple. The complexity comes when it’s broken down to what kind of international law is being referred to. Generally, textbooks point to the following as “primary” sources of international law: treaties, customs, and general principles of law.

In relation to UK practice, “as far as international treaties are concerned, the sovereign has the power to make or ratify treaties so as to bind England under international law, but these treaties have no effect in municipal law (with the exception of treaties governing the conduct of war) until enacted by Parliament.” Nevertheless, “it is not altogether clear which view English law takes with respect to rules of customary international law.” (Oxford Index)

On the other hand, the US seems similar to the UK approach but with a variation regarding treaties: taking note of their Constitution’s Supremacy clause, distinction is made between “self-executing” and “non-self-executing” treaties. The former refers to international agreements that can be made to operate automatically into US domestic law, the latter requires legislation.

And the Philippines?

The Supreme Court seems to posit that we distinguish between customs and treaties: incorporation for customs and transformation for treaties.

Thus, in Pharmaceutical and Health Care Association (GR No. 173034, October 9, 2007, citing Joaquin G. Bernas, S.J., An Introduction to Public International Law, 2002), the Supreme Court, writing through Justice Austria-Martinez, declared: “Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that ‘[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.’ Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.”

That is an obiter the Supreme Court may want to reconsider.

Several reasons: first is that Article II.2’s “incorporation clause” absolutely makes no distinction between treaties and custom.

Such then logically instructs us to read Article VII.21’s “effective” in its “ordinary” sense, i.e., binding the Philippines to other treaty parties.

Thirdly, laws are not made by the Senate but Congress. Acts of concurrence done by the former are made in the form of “resolutions.” Resolutions are not laws that effects transformations.

Finally, the wording of the Senate resolutions themselves makes no mention of “transforming” treaties as to be part of Philippine law. What is stated is merely that the Senate “concurs” in the treaty negotiated by the Executive (for example, see Senate Resolution No. 131, 2008, granting concurrence to the JPEPA).

The point is that Senate concurrence is just the last of a series of acts to make a treaty “effective” vis-à-vis our treaty co-parties. That effectivity, in turn, lends to the operation of Article II.2, incorporating that treaty as part “of the laws of the land.”

Rightly, we make a distinction between “self-executing” and non-self-executing” treaties but this is different from the American conception of it: both are considered already operative within Philippine law but the latter needing legislation to flesh out required details.

For customs, it is posited here that before incorporation applies for the courts to first demand evidence of and then rule as to a) the existence of the custom, b) the specific content of that custom at the time such is presented before the courts in support of a claim or defense, and c) that the Philippines actually adheres to that custom.

In fine, it is urged that clarification be made either by legislation or Supreme Court ruling: that as far as the Philippines is concerned, only the doctrine of incorporation applies, both for treaties and customs.

 

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

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