A basic but misunderstood area in the study of international law here in the Philippines is the doctrine of “incorporation”. In our Constitution, the Philippines made two important assertions regarding its stand on international law: one is on the duality of international law vis-à-vis local law (sometimes called municipal law) and, secondly, is that we automatically consider international law as part of the law of the Philippines.
The latter assertion has been touched upon in a long line of Supreme Court cases. In practice, however, lawyers are seemingly in disagreement as to the extent to which international law plays a part in local legislation. Much of the belief regarding the position of international law seemingly stems from ideology or emotion, rather than a clear-eyed analysis of what international law is.
This can be seen in the discussions relating to the recent Bar exam on international law and women’s rights by some newspaper commentators. Sometimes, the same can be said for those who locally advocate for international human rights or the environment. Laudable as their advocacies are, however, the same still shouldn’t detract from the fact that international law is a highly fluid and analytical field, requiring precision thinking specially in delineating international obligations in relation to national interests.
One significant fact that must be considered is that international law does not hold a position of primacy in our jurisdiction. In our country, the one standard that embodies the legality of actions and the definition of rights is our Constitution. The Constitution reigns supreme and whenever international law (understood for the moment to be treaties or customary law) is in conflict with the former, then the Constitution will prevail. Without question. This is a legal policy we share with a number of other jurisdictions, such as the United States. In fact, there is only one country I know that expressly stated that international law prevails over its constitution. The Philippines, to be clear, is not that country.
The rank which international law holds in our jurisdiction is equal to that of a congressional enactment (i.e., Republic Acts). Thus, assuming that there is an actual conflict between international law and a Republic Act, then legal techniques on statutory construction (i.e., the tools used by lawyers to determine which law prevails over another in case of conflict between the two) would be employed. Some of such rules say that the “later in time prevails” or that the “specific law prevails over the general”. Depending on the circumstances, local law can and will prevail over international law.
In any event, the point is that international law is merely equal to congressional enactments, nothing more and nothing less. Like any congressional enactment, international law has to comply with the provisions of our Constitution and if it doesn’t then such international law will have no force or effect within our country. The words “within our country” has to be emphasized though, for outside our jurisdiction and within the realm of international law different rules will prevail regarding the operation of international law vis-à-vis local law.
Like any law, international law as a source of rights and cause of action could be restricted or restrained, particularly if required by the State’s police, eminent domain, or taxation powers. The application of a treaty’s provisions within our jurisdiction, again as a source of a cause of action, could be amended by a mere subsequent Republic Act if Congress, in its discretion, decides to do so.
Thus, declarations by officials that the Philippines can’t do a certain measure because its hands are tied by international law are false. Within our borders, the Philippines generally can do what it wants even if such goes against international law: the Congress can enact laws, the Executive branch can issue measures implementing the law, and the Judiciary can rule and uphold such law even if that law conflicts with international law. This is because, as previously stated, within our jurisdiction the one dominant and primary standard is the Constitution. As long as that law is constitutional, then - even if it is “violative” of international law - such law is valid as far as the Philippines (internally) is concerned.
Doubtless there will be some excitable reactions to the foregoing explanations. However, that will not change the fact that within local jurisdictions, the common practice among countries is to treat international law as being regulated by and subservient to their constitutions. To say that international law is to be treated within our jurisdiction as superior to our local law and our Constitution is as misleading as to say that the US embassy grounds on Roxas Boulevard is US soil (it’s not - it’s Philippine territory). As I keep saying, the faster we grasp the concept of confidently asserting our national interests vis-à-vis international law, the better international citizens we’ll be.