International law cannot say who our president should be

was my Trade Tripper column in the 18-19 March 2016 issue of BusinessWorld:

Much talk has been made in Poe-Lamanzares vs Comelec of international law providing a basis for Senator Grace Poe’s Filipino citizenship. Unfortunately, such are either misleading, if not downright wrong. This article isn’t so much on the case but on the misconceptions people have with regard to international law.

First off is the need to understand that international law, like any norm, is usually the product of a political process. In that sense, international law, all the more international human rights law, is political.

As example, the United Nations Committee on the Elimination of Discrimination Against Women (which oversees the Convention on the Elimination of All Forms of Discrimination Against Women) has proven to be controversial for promoting, as it does, Western-style feminism. The Convention itself, implemented under the guise of protecting the rights of women, has been viewed inimical to the cultural self-determination of States.

And perhaps because it knows several of its advocacies are unacceptable to many countries, human rights activists picked on the tactic of preaching that international human rights laws are sui generis. But sui generis according to whom? Their fellow human rights activists?

That’s why London School of Economic’s Susan Marks (“Human Rights Myths”) points to the fact that the universality of human rights shouldn’t be readily presumed, considering its relative novelty, and that international human rights law, the bulk of which are either ambiguously crafted or in the nature of “soft law,” should not be naively treated as being above politics because it certainly isn’t. And a State would be foolish to indiscriminately bind itself to such.

Another thing about international law is that a State’s obligation to it goes only so far as to the treaties it entered into and, if so, what exactly is written in such treaty. No more, no less.

And there’s nothing in the whole range of international law treaties right now, whether the Philippines is a signatory or not, from the “UN Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention Concerning Discrimination in Respect of Employment and Occupation,” etc., etc., that actually says foundlings should be considered “natural born citizens” rather than merely “citizens.”

Incidentally, the argument that RA’s 8043 and 8552 bolster the contention that foundlings are “natural born citizens” because any act done to secure the necessary “foundling certificate,” which leads to citizenship, was done by the government authorities and not the foundling herself is a fallacy of logic chopping or trivial objections.

What does it matter if the act was not done directly by the foundling but by another when such act was clearly on behalf of the foundling?

That, by the way, is different from merely recording a baby’s birth because the “process” (the word used by the Supreme Court, implying a series of acts) in the foundling’s case is necessary to determine if the child is indeed a foundling so that a declaration on citizenship could thereafter be made. Those, by all common sense, are acts to “acquire or perfect citizenship.”

Going back to international law, it is possible that without signing on to a treaty that the Philippines is bound by international customary law. But proof must be presented that there is such a custom, which requires presentation of facts (not surmises, conjectures, or motherhood statements) regarding the presence of “State practice” and “opinio juris.” This is one of the more significant lessons learned from “Vinuya vs Romulo” (GR No. 162230).

In any event, the fact still remains that there is no customary international law (as well as “general principles of law”), general or regional, that specifically says foundlings should be considered natural born citizens.

Which leads to this final point: even if there is a treaty, custom, or general principle out there (just for the sake of argument) actually specifically providing that foundlings are indeed natural born citizens of the State where found, such does not trump or supersede the Constitution.

To put it more clearly: within our jurisdiction, our Constitution is supreme and reigns over even that of international law.

In fact, the job of the Supreme Court includes determining whether an international law (particularly treaties) is in line with our Constitution. If indeed found constitutional, such will merely be considered of the level of legislative enactments.

So any international law that contradicts our Constitution’s demand that our president be “a natural born citizen of the Philippines” and resident thereof “for at least ten years immediately preceding such election,” with natural born citizen defined as “citizens of the Philippines from birth without having to perform an act to acquire or perfect their Philippine citizenship” must be disregarded and set aside.

Considering this country’s past of being dictated upon by foreign countries or institutions, let not its choice of future president be one as well.