I. International Law in Judicial Review
No matter the counter-majoritarian difficulty, various states have adopted the written constitution as higher law and judicial review as the mechanism institutionalizing this hierarchy.Footnote 1 Mauro Cappelletti saw this as an evolutionary advance by societies towards the codification of natural law as positive law, in which natural law means simply that “a law that contravenes [a] Higher Law is not a law at all”.Footnote 2 He identified three stages of codification: first, the adoption of a written instrument defining in broad strokes “individual and social values”;Footnote 3 second, the constitutionalization of the instrument by giving it permanence and primacy vis-à-vis policy and legislation;Footnote 4 and third, the institutionalization of the mechanism of judicial review whereby a court not accountable to powerFootnote 5 gives tangible effect to the supremacy of the constitution by subjecting political acts to its standards.Footnote 6 He based these findings and analysis on practice in Western countries,Footnote 7 but none in Africa or Asia.Footnote 8
For Cappelletti, as the immutability of natural law means its universal validity,Footnote 9 constitutionalism necessarily transcends the boundaries of sovereign territorial states and turns judicial review into a “movement towards harmonization … [and] a search for internationally acceptable values”.Footnote 10 He attributed transnational constitutionalism to both the ascendence of European Community law as the “higher law … uniformly applied in all the member states”,Footnote 11 and the adoption of the European Human Rights Convention (ECHR) as a “comprehensive transnational bill of rights” enforceable by the European Court of Human Rights (ECtHR) upon direct application by an individual.Footnote 12 Transnational constitutionalism overcomes the territorial jurisdictional boundaries that limit access to justice by the individual.Footnote 13
Cappelletti paved the way for empirical and critical studies on the first wave of judicial review,Footnote 14 with focus recently turning to Africa and Asia.Footnote 15 Studies on the second wave of judicial review have also proliferatedFootnote 16 but most are sceptical about the second wave reaching AsiaFootnote 17 due to a perceived stranglehold of the four-walls and dualist doctrines on Asian constitutional courts.Footnote 18 Institutional and sociological theories characterize the second wave as the universalization of international law and the global constitutionalization of some of its norms, made possible through transnational judicial dialogue and diffusion,Footnote 19 even involving courts in illiberal regimes in Asia.Footnote 20
A recent article addressed scepticism about Asian courts’ engagement with international law by detailing how the courts of Singapore, Malaysia, and the Philippines sidestep the dualist doctrine and four-walls doctrine and engage with international human rights law.Footnote 21 However, the article found marked contradictions within each court’s own practices,Footnote 22 such as among courts in Malaysia on the status of the Convention on the Elimination of all Forms of Discrimination Against Women;Footnote 23 the Philippine Supreme Court on the International Covenant on Civil and Political Rights (ICCPR);Footnote 24 and Singapore’s Court of Appeal on the teleological value of ECtHR jurisprudence.Footnote 25 Due to the narrow scope of the article and for lack of data, no plausible explanation for the inconsistencies could be provided.
Institutional and sociological theories would explain inconsistencies in interactions by domestic courts with international law as mere pains of pluralismFootnote 26 and functional orderingFootnote 27 and attribute them to differences in interpretative techniquesFootnote 28 or unevenness in motivations for judicial prestige.Footnote 29 They would characterize divergence in the Asian context as resistance to liberal rights discourse and predilection to populism and exceptionalism by authoritarian and semi-authoritarian regimes.Footnote 30 While those perspectives are useful in explaining divergence in interpretation and application of international law across judicial systems and jurisdictions, they are unable to make sense of self-contradictions within the same domestic court, even one belonging to the liberal democratic tradition, like the Philippine Supreme Court.
Thus, to shed more light on the phenomenon the present article focuses on the Philippine Supreme Court throughout the period from American military occupation, post–World War II, post-colonialism, authoritarianism, and liberal democracy. The case-study details the Philippine Supreme Court’s interpretation and application of primary rules in various fields of international law as well as secondary rules for the identification of such primary rules by their source in international law. Primary rules are the content, substance, or structure of norms, spelled out as rights, obligations, and responsibilities; while secondary rules are the criteria for separating legal from non-legal norms by its source in the international legal order.Footnote 31 The prevailing secondary rules can be found in Article 38 of the Statute of the International Court of Justice (ICJ Statute).Footnote 32
Section II summarizes the concept of the third wave of judicial review that Doreen Lustig and Joseph Weiler adopted to explain contemporary transnational constitutionalism. It offers more appropriate tools for making sense of inconsistencies within the same court, even one with a liberal democratic leaning. Section III details how the Philippine Supreme Court interacted with international law from 1901 to 2024. Section A of Section II shows that initially the Philippine Supreme Court interpreted and applied norms following strict adherence to the formal criteria for ascertaining their sources in international treaty law, international customary law, and general principles of international law. Beginning in the post-war period, the Philippine Supreme Court became arbitrary in the selection and application of the identifying criteria of customary international law and general principles of international law. Section B discusses cases decided during the periods of martial law and liberal democracy in which the Philippine Supreme Court was arbitrary in the identification even of international convention as source of international law. Section IV demonstrates the implications of the self-contradictory practices of the Philippine Supreme Court. Section V concludes that the unpredictability with which the Philippine Supreme Court engages in source ascertainment and the consequent instability of international law that it brings about are the makings of the third wave of judicial review that Lustig and Weiler warned will reverse the gains of transnational constitutionalism.
The purpose of this article is to contribute to a critical understanding of the role of Asian courts in global constitutionalism, on the one hand, and in maintaining the stability and predictability of international law, on the other hand.
II. The Cappelletti Waves of Judicial Review and Engagement with International Law
This article adopts the perspective of third wave of judicial review rather than the standard institutional and sociological process approaches. If this article were to apply the descriptive tools of institutionalism and sociology, namely, judicial dialogue, judicial convergence, and judicial politics, the Philippine Supreme Court’s arbitrariness would be reduced to either a lack of formal training in international law or a maximization of prestige vis-à-vis other constitutional courts in the region or power vis-à-vis the political departments of the Philippine government. However, as the succeeding parts will show, the inconsistencies have been taking place within the same court over a period of seventy years, without evidence of drastic change in the level of education in international law of the members of the Philippine Supreme Court. Moreover, it is doubtful whether inconsistencies in source ascertainment and norm application would enhance the reputation of the Philippine Supreme Court within the international or regional communities of constitutional courts or strengthen judicial relations with the political departments of the Philippine government.
If the article were to extend the semantic sting argument to international law as interpreted and applied by domestic courts, it would have to deconstruct the Philippine Supreme Court’s behaviour as a denial of a common a priori concept of international law and a struggle for its conceptualization. The semantic sting argument denies concurrence in a metarule on the separation of law from non-law.Footnote 33 Yet, Sections II and III detail that the Philippine Supreme Court self-consciously binds itself and expressly invokes the secondary rules for source ascertainment as set out in Article 38 of the ICJ Statute, only that it lapses into arbitrariness and selectiveness in the application of these rules.
Thus, this article shall apply the descriptive and analytical concept of the third wave of judicial review for, as the succeeding sections explain, it is better able to make sense of internal inconsistencies in the Philippine Supreme Court’s engagement with both primary and secondary rules of international law.
A. First Wave (Domestic Constitutionalism) and Second Wave (Transnational Constitutionalism)
In 2018, Lustig and Weiler revisited the work of Cappelletti by describing domestic constitutionalism as the first wave of judicial review characterized by the ascendence of the constitution as the higher law within the nation state, and transnational constitutionalism as the second wave of judicial review signified by the application of international law as a source of higher law within and across nation states.Footnote 34 At the same time, they “theoretically revise[d]” Cappelletti’s work by rejecting the irreversibility of the progression of domestic and transnational constitutionalism, and instead drawing attention to a third waveFootnote 35 breaking out from the identitarian, democracy and rule of law and redistributive contradictions in the first and second waves and correcting if not cancelling their progression.Footnote 36
B. Third Wave of Judicial Review
Lustig and Weiler observe an identitarian contradiction in domestic constitutionalism and transnational constitutionalism. Both practices recognize the inviolability of human dignityFootnote 37 whose facets are “the irreducible equality of individuals … [and] the uniqueness of each individual”.Footnote 38 Yet, on the one hand, the uniqueness of an individual can be defined in terms not only of sexual, gender and other preferences but also of national affinity or a “belongingness to a collectivity – nation … which has a unique history, unique cultural identity, and, yes, destiny”.Footnote 39 Such belongingness necessarily entails the individual’s acceptance of responsibilities and duties to the whole rather than absorption with entitlements to rights and liberties of the self.Footnote 40
On the other hand, in order to protect the individual (as the minority) from the territorial state (as the majority), domestic constitutionalism and transnational constitutionalism atomize the individual, uproot it from its social origin and transplant it unto an imagined transnational community with homogenized culture and universal values.Footnote 41 An identitarian contradiction arises as the individual is abstracted from its history and alienated from its community, and thereby stripped of an inherent facet of its uniqueness. The contradiction becomes acute when, buffeted by socio-economic, political, and security crises, societies rely on their roots in communitarianism and shun individualism-narcissism.Footnote 42 In the third wave of judicial review, courts respond to this clamour by employing the rhetoric of nationalism which is sensitive to “national context, cultural specificity, and social cohesion”, thereby correcting the identitarian lapses of the first wave and second wave of judicial review.Footnote 43
There is a redistributive contradiction in domestic constitutionalism and transnational constitutionalism in that governance regimes built around the protection of human rights ultimately break down barriers to private access, ownership, and accumulation of land and other resources but do not address global inequalities brought about by such concentration of wealth.Footnote 44 While Lustig and Weiler do not cite a specific case, it is not difficult to imagine a third wave of judicial review echoing the rhetoric of permanent sovereignty over natural resources.Footnote 45
Finally, democracy and rule of law contradiction is akin to counter majoritarian dilemma but in transnational constitutionalism.Footnote 46 Unlike the first wave of judicial review in which domestic courts apply standards defined by deliberative processes, the second wave of judicial review in the context of globalization and fragmentation finds domestic courts less deferential towards the national polity and more reliant on dialogue with foreign courts or guidance from transnational governance bodies to address common problems.Footnote 47 National administrative and legislative acts are tested against standards shaped by expert-based regulatory decision-making (bodies?) even when such process lacks accountability, deliberation, and representation, especially when dominated by stronger states.Footnote 48 A third wave of judicial review would be in defiance or modification of transnational governance.Footnote 49
The literature on the third wave of judicial review is contentious,Footnote 50 and none of them covers the courts in Asia. Moreover, while Lustig and Weiler caution that their description of third wave is not definitive,Footnote 51 the contours resemble either semantic disengagement or structural disengagement, where, in the former, courts continue to engage with international law but inject nationalist rhetoric in their interpretation and application, whereas, in the latter, courts “exit from the benefits of multilateralism and transnational governance”.Footnote 52
Sections II and III of this article draw attention to an extreme form of democratic deficit in which the Philippine Supreme Court is arbitrary and contradictory in its selection of secondary rules of identification of international norms by their source, a consequence of which is the inconsistency in its interpretation and application of primary rules of international law as the standard of judicial review. Moreover, whether wittingly or unwittingly, it distorted a ruling of the Arbitral Tribunal in the South China Sea Arbitration to reinforce the position of the Philippine government regarding the status of the Spratly Islands as an offshore archipelago. It also downgraded the status of the prohibition against torture as jus cogens, with the potential of preempting the disposition of a pending investigation by the International Criminal Court (ICC) prosecutor against a former president.
III. The Philippine Supreme Court and International Law
This part of the article summarizes the constitutional history of the Philippines, from the period of American rule to the post-war and post-colonial periods, and outlines the place of international law in these early constitutional structures. It discusses how the Philippine Supreme Court applies norms of international law in domestic cases either as the basis of rights and obligations or the standard of the validity of governmental acts. It shows that the Philippine Supreme Court initially adhered to the formal criteria for the identification of these norms by their sources in international law but that, beginning in the post-war period, it became capricious in its selection and application of the identifying criteria.
A. American Occupation, Post-War and Post-Colonial Periods
Perhaps the first controversial brush with international law by a Philippine court was during the period of Spanish colonialism when in 1762 the Royal Audencia of Manila, exercising its political, military, judicial, and ecclesiastical powers, entered into a treaty for the surrender of the Philippines to British forces.Footnote 53 Judge Simón de Anda y Salazar defied the treaty arguing that only the King of Spain had authority to consent to the surrender treaty.Footnote 54
1. American Occupation
Executive, legislative, and judicial powers were also concentrated in the United States Military Governor during the initial period of the United States occupation of the Philippines.Footnote 55 Among the limitations to this concentration of power were those imposed by treaties that the United States President proclaimed to be applicable to the Philippines, such as the Treaty of Paris between Spain and the United States (Treaty of Paris)Footnote 56 which guaranteed religious freedomFootnote 57 and right to private property,Footnote 58 including native land title.Footnote 59 The Convention on the Laws and Customs of War on LandFootnote 60 was recognized as codification of customary international law on military occupation in In the Matter of the Application of Frank Stanley Allen for a Writ of Habeas Corpus (1903). The Philippine Supreme Court affirmed the validity of conquest by the United States as a mode of acquisition of Philippine territory and recognized the “authority of the President of the United States, as Commander in Chief of the Army and Navy, to govern [the] conquered territory”. This authority of the United States President extended to the military commander but is limited by “the law and usages of war” according to which the latter’s direct exercise of “all the powers and functions of government” shall continue until the United States Congress legislates otherwise.Footnote 61
From 1902 to 1916, the United States Congress passed laws granting the Philippine Supreme Court the power of administrative and judicial review, although decisions involving a “treaty of the United States” were subject to further review by the United States Supreme Court.Footnote 62 In the course of judicial review, the Philippine Supreme Court engaged in source ascertainment of international conventional and customary law.
In Compagnie de Commerce et de Navigation D’Extreme Orient v. The Hamburg Amerika Packetfacht Actien Gesellschaft (1917),Footnote 63 the Philippine Supreme Court addressed the question of whether a belligerent state is obliged under customary international law to allow the safe passage of the commercial vessel of an opposing belligerent state. The Philippine Supreme Court noted numerous state practice but found it to be “by no means uniform … [and] … the tendency in recent years has been to limit, restrict and in some cases, apparently, to disregard … altogether”Footnote 64 such safe passage. It concluded that
there was no such general recognition of the duty of a belligerent to grant days of grace and safe-conducts to enemy ships in his harbours, as would sustain a ruling that such alleged duty was prescribed by any imperative and well settled rule of public international law, of such binding force.Footnote 65
The Philippine Supreme Court ascertained both treaty and customary sources to determine the prescriptive and enforcement jurisdiction of the Philippine colonial government. In United States v. Bull (1910), it recognized the existence of a customary norm on innocent navigation by foreign merchant vessels within the three-mile territorial waters of the Philippines but declared that the latter has criminal jurisdiction over these vessels for acts committed within said waters, “unless the local sovereignty has by act of acquiescence or through treaty arrangements consented to waive a portion of such jurisdiction”.Footnote 66 The vessel involved in this case was registered under the laws of Norway with whom the United States had existing treaties on commercial vessels. However, the Philippine Supreme Court held that the treaties in question did not grant Norway extraterritorial jurisdiction. In a related case, the United States Supreme Court in United States v. Fowler (1902) held that the Philippines had no enforcement jurisdiction over offenses committed on board foreign merchant vessels navigating the high seas, that is, beyond the three-mile limit of the country’s territorial waters.Footnote 67
Finally, in United States v. Guzman (1902), the Philippine Supreme Court weighed domestic law vis-à-vis international law. In this case, it acknowledged that there is a customary law of war proscribing the assassination of prisoners of war, and that this norm was violated when the accused Guzman assassinated a Spanish prisoner of war.Footnote 68 Yet, it upheld the release of the accused on the basis of a United States presidential proclamation of amnesty.Footnote 69 It thereby gave the presidential proclamation primacy over international law and allowed an indirect derogation from the laws of war.
In sum, even during the period of colonization, the Philippine Supreme Court was already involved in the first and second waves of judicial review. It was receptive to international law either as standard of governmental conduct or basis of rights and obligations. It was cautious in applying international law to domestic cases by strictly adhering to the formal criteria for ascertaining its source. This serves as a point of comparison to the subsequent periods when the Philippine Supreme Court’s engagement with international law began to be haphazard.
2. Post-War Period
Although called the Philippine Independence Act of 1934, this law passed by the United States Congress authorized adoption of a Philippine constitution provided certain mandatory provisions are inserted.Footnote 70 The Philippines accepted the preconditionFootnote 71 and appended to its 1935 ConstitutionFootnote 72 an ordinance containing the provisions dictated by the United States,Footnote 73 to the effect that Philippine Supreme Court can nullify a treatyFootnote 74 but its decision can be reviewed by the United States Supreme Court.Footnote 75
In addition to treaties, “generally accepted principles of international law as part of the law of the Nation” was recognized in Article 3(2) of the 1935 Constitution as a source of norms that can be domestically applied. The formulation “generally accepted principles of international law as a part of the law of the Nation” in the 1935 Constitution appears different from the formulation “international custom, as evidence of a general practice accepted as law” that can be found in Article 38 (2) of the Statute for the Permanent Court of International Justice (PCIJ Statute)Footnote 76 and Article 38 (1)(b) of the ICJ Statute.Footnote 77 However, the Philippine Supreme Court interpreted Article 3(2) of the 1935 Constitution as authority “to accept in evidence, international custom as evidence of a general practice accepted as law”.Footnote 78 Thus, it considered “generally accepted principles of international law as a part of the law of the Nation” in Article 3(2) of the 1935 Constitution as equivalent to international customary law in Article 38(2) of the PCIJ Statute and Article 38 (1)(b) of the ICJ Statute.
Yet, while PCIJ and ICJ consistently regard state practice and opinio juris as separate identifying criteria,Footnote 79 the Philippine Supreme Court conflated them. Moreover, PCIJ and ICJ regard “general principles of law recognized by civilized nations”Footnote 80 as a source separate from international customary law,Footnote 81 while the Philippines Supreme Court treats them as one and the same.
In three successive cases in 1951, the Philippine Supreme Court fused state practice with opinio juris by holding that, in view of the adoption of the Universal Declaration of Human Rights (UDHR) by the General Assembly, UDHR is part of “generally accepted principles of international law as part of the law of Nation”.Footnote 82 Six years later, in 1957, the Philippine Supreme Court reversed itself and held that, similar to the United Nations Charter (UN Charter), UDHR is soft law for it imposes no legal obligations on states regarding the rights and freedom of their citizens but merely recommends “a common standard of achievement for all peoples and all nations subjects”.Footnote 83 In the following year (1958), the Philippine Supreme Court reverted to the ruling that UDHR as a whole was already customary international law and part of the domestic legal system.Footnote 84
To this day, the Philippine Supreme Court has not been able to disentangle itself from contradictions regarding UDHR. At one point, the Philippine Supreme Court held that UDHR was suspended by the martial law constitution and that the scope of human rights applicable to the Philippines would have to be determined by legislation.Footnote 85 A few years later, it held that, following the abolition of the martial law constitution by popular revolt, UDHR as well as ICCPR served as the default bill of rights until the promulgation of the revolutionary constitution.Footnote 86
The most recent pronouncement of the Philippine Supreme Court is that UDHR, ICCPR and the interpretation of the Human Rights Committee in General Comment No. 20 on the right of suffrage are, all at once, “generally accepted principles of international law … international custom and general principles of law” and that, as such, have the “force and effect of a statute enacted by Congress”.Footnote 87 Apparently, it overlooked that customary international law and general principles of law are as structurally unlike as apples and oranges. Moreover, as early as 1973, the Philippine Supreme Court already declared that the right of suffrage is based not just on customary international law but on jus cogens norm in that not even the constitution may derogate from it.Footnote 88
The arbitrariness with which the Philippine Supreme Court identified norms of international customary law (and general principles of law) would also characterize its treatment of international conventional law, as the succeeding discussion would show.
3. Post-Colonial Period
Independence of the Philippines was recognized in 1946Footnote 89 but the Philippines granted to the United States “the right to exercise jurisdiction” over all offences committed inside United States military bases or offences involving United States military personnel outside said bases.Footnote 90 In the cases discussed below, the Philippine Supreme Court tied itself up in contradictions to accommodate United States extraterritorial jurisdiction over crimes committed outside the military bases or involving Filipino nationals.
The authority of the Commanding General of the United States Army to continue to exercise criminal jurisdiction within the territory of the Philippines as an independent state was addressed in Raquiza v. Bradford (1945)Footnote 91 and Tubb v. Griess (1947).Footnote 92 Citing United States Supreme Court case lawFootnote 93 and the work of “authoritative writers on international law”, the Philippine Supreme Court held that there is sufficient evidence of international customary law that “a foreign army allowed to march through a friendly country or to be stationed in it, by permission of its [host country’s] government or sovereign, is exempt from the civil and criminal jurisdiction of the place”.Footnote 94 However, the foregoing customary norm cited by the Philippine Supreme Court is about jurisdictional immunity of visiting foreign forces in the territory of the host state, and not about the extraterritorial criminal jurisdiction of the commanding general of said foreign forces within an area in the host territory. The Philippine Supreme Court offered no explanation for equating jurisdictional immunity with extraterritorial jurisdiction, notwithstanding that the former might be based on customary norm while the latter requires a conventional agreement, given that it is a derogation of the territorial sovereignty of the host state.Footnote 95
In a subsequent case, the Philippine Supreme Court applied the more appropriate rule on extraterritorial jurisdiction based on treaty, that is, the Military Bases Agreement. It acknowledged in Miquiabas v. United States Army (1948)Footnote 96 that
the Philippines, being a sovereign nation, has jurisdiction over all offenses committed within its territory, but it may, by treaty or by agreement, consent that the [United States] or any other foreign nation, shall exercise jurisdiction over certain offenses committed within certain portions of said territory.Footnote 97
It held that the Military Bases Agreement defined those areas in Philippine territory over which the United States Commanding General had criminal jurisdiction, but as the acts complained of were committed outside the agreed areas, the United States Commanding General had no jurisdiction over the accused Miquiabas.Footnote 98 In Syquia v. Almeda Lopez (1949), the Philippine Supreme Court declared that the Military Bases Agreement did not deprive the Philippines of jurisdiction over a civil case involving private property claimed to be within the military bases but recognized the sovereign immunity of the United States government from monetary claims arising from said civil case.Footnote 99 In a word, it acknowledged that limitations on the territorial jurisdiction of Philippine courts must be based on an international agreement.
Yet, in a case decided also in 1948 and on the same issue of extraterritorial criminal jurisdiction of the United States Commanding General, the Philippine Supreme Court in Dizon v. United States Army Footnote 100 (1948) relied on Raquiza v. Bradford and Tubb v. Griess and resolved the case on the basis of a customary norm on jurisdictional immunity. At the same time, it reiterated the rule in Miquiabas v. United States Army that United States extraterritorial jurisdiction must be based on agreement with the Philippines, as exemplified by the Military Bases Agreement. Even more strangely, it went on to say that the United States’ extraterritorial jurisdiction derived from a Joint Resolution of the United States Congress in 1944;Footnote 101 yet, the Philippines had not participated in, much less consented to, said joint resolution.
Twenty years later, in Reagan v. Commissioner of Internal Revenue Footnote 102 (1969) and Baer v. Tizon Footnote 103 (1974), the Philippine Supreme Court reiterated that the Philippines “may by its consent, express or implied, submit to a restriction of its sovereign rights”, and that such consent to United States jurisdiction within identified parts of Philippine territory had been expressed in the Military Bases Agreement. In fact, in Adolfo v. Lacson (1970), the Philippine Supreme Court emphasized that expansion of such extraterritorial jurisdiction must be by means of a formal amendment to the Military Bases Agreement, which amendments should fulfil the constitutional requirements of ratification.Footnote 104 In this case, a local court had demanded that the United States military commander surrender an accused United States military personnel.Footnote 105 The United States military commander refused to surrender the accused, and invoked a 1965 Exchange of Note between the Philippines and United States which provides that the latter shall have custody of its personnel who might have committed crimes outside the United States military bases.Footnote 106 The United States characterized the exchange of note as an executive agreement which does not need Senate concurrence.Footnote 107 The Philippine Supreme Court acknowledged that
international agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties [while those] embodying adjustments of detail … and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.Footnote 108 However, the Philippine Supreme Court held that, as the exchange of note expanded the jurisdiction of the United States, concurrence by the Philippine Senate was necessary to give it domestic effect.Footnote 109
The necessity for Philippine consent to the exercise of jurisdiction by a foreign military force in the local territory is now expressly required in the present constitution.Footnote 110
In sum, section A discussed that during American rule and the post-war and post-colonial periods, the Philippine Supreme Court engaged with international law through the following: first, the identification of international conventional law and international customary law as sources of norms; second, the review of administrative and legislative acts according to said norms; and third, the review of international convention and international custom vis-à-vis Philippine law and constitution. However, the Philippine Supreme Court had been arbitrary in its identification of the sources of these norms. As a consequence, it had been inconsistent in its application of international law in domestic cases.
The practices of the Philippine Supreme Court under the martial law constitution and present constitution are discussed in section B. The focus shall be on how the Philippine Supreme Court gave direct effect to unratified treaties through the exercise of two aspects of its judicial power: judicial review and the promulgation of procedural rules.
B. Martial Law and Liberal Constitutional Periods
Similar to the 1935 Constitution, the 1973 Constitution that governed the Philippines during the period of martial law provided that “no treaty shall be valid and effective” unless concurred in by the Philippine Senate.Footnote 111 The 1987 Constitution, which is presently in force, also requires Senate concurrence to both “treaty and international agreement”.Footnote 112 Such Senate concurrence serves two functions. First, it ensures that a treaty shall have the same force as domestic law or prevail over a prior existing domestic law with which it is inconsistent.Footnote 113 It also prevents a mere executive agreement which is inconsistent with or prohibited by an existing law from gaining domestic force.Footnote 114 Second, it serves as a checkFootnote 115 on the President’s exclusive foreign relations power as head of state.Footnote 116
The Philippine Supreme Court exercised the power of judicial review under both 1973 and 1987 constitutions and engaged with the primary rules and secondary rules of international law in the process. The discussion below will focus on its practice in relation to treaties.
In Reyes v. Bagatsing (1983), a local ordinance implementing the Vienna Convention on Diplomatic Relations regarding the inviolability of consular premises was challenged on the ground that it violated the guarantee of freedom of expression under the constitution. The Philippine Supreme Court declared that the convention is a codification of custom but as the convention had already been concurred in by the Philippine Senate, it may already be directly implemented as a limitation on the scope of freedom of expression.Footnote 117
Yet, in Razon v. Tagitis (2009), the Philippine Supreme Court allowed the indirect effect of the International Convention for the Protection of All Persons from Enforced Disappearance (Convention) and the Rome Statute, which had been signed but not yet ratified at the time of the case, and the Inter-American Convention on Enforced Disappearance of Persons, which regional instrument the Philippines could not sign.Footnote 118 The Philippine Supreme Court declared that these instruments are evidence of state practice and opinio juris on a binding customary international law that states have a positive obligation to prevent or investigate cases of enforced disappearance. It was held:
While the Philippines is not yet formally bound by the terms of the Convention on enforced disappearance (or by the specific terms of the Rome Statute) and has not formally declared enforced disappearance as a specific crime, the above recital shows that enforced disappearance as a State practice has been repudiated by the international community, so that the ban on it is now a generally accepted principle of international law, which we should consider a part of the law of the land, and which we should act upon to the extent already allowed under our laws and the international conventions that bind us.Footnote 119
The Philippine Supreme Court glossed over the repeated refusal by the executive department to send the Convention for Senate concurrence.
In addition to allowing an unratified treaty to have indirect effect as evidence of customary international law, the Philippine Supreme Court implemented unratified treaties through the exercise of its judicial power to promulgate rules of court procedure.Footnote 120
The Philippines is party to five Hague Conference on Private International Law Conventions (HCCH), namely: (1) Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (Adoption Convention);Footnote 121 (2) Convention on the Civil Aspects of International Child Abduction (Child Abduction Convention);Footnote 122 (3) Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention);Footnote 123 (4) Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Service Convention);Footnote 124 and (5) Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention).Footnote 125
The Philippine Senate concurred in the ratification of the Adoption Convention on 4 June 1996.Footnote 126 This convention came into force in the Philippines on 1 November 1996.Footnote 127 The Philippines Senate concurred in the accession to the Child Abduction Convention on 1 February 2016.Footnote 128 This convention came into force in the Philippines on 1 June 2016.Footnote 129
As of the writing of this article, the Philippine Senate has not concurred in the ratification of or accession to the Apostille Convention, Service Convention, and Child Support Convention.Footnote 130 Moreover, there are existing laws with which the provisions of these unratified conventions are in conflict. Contrary to the Apostille Convention, the Anti-Money Laundering Act (2001) and Insurance Code (2013) require formal consular legalization rather than mere apostillization.Footnote 131 The central receiving authority contemplated by the Service Convention is not recognized by the Revised Corporation Code (2019),Footnote 132 General Banking Law (2000),Footnote 133 and Securities Regulation Code (2000).Footnote 134 Finally, the modes of payment by the obligated parent overseas under the Child Support Convention differ from the direct overseas remittance required under pending bills on child support in the Philippine Congress.Footnote 135
Notwithstanding their deficiencies, these unratified conventions were implemented by the Philippine Supreme Court through the exercise of its judicial power to promulgate rules of court procedure. It incorporated the Apostille Conventions in the Rules of Procedure for Admiralty Cases (2019)Footnote 136 and Revised Rules on Evidence (2019);Footnote 137 the Service Convention, in the Guidelines on the Implementation in the Philippines of the Hague Service Convention on the Service Abroad of Judicial Documents in Civil and Commercial Matters;Footnote 138 and the Child Support Convention in the Rules on Action for Support and Petition for Recognition and Enforcement of Foreign Decisions or Judgments on Support.Footnote 139
By attaining direct effect, these unratified conventions impliedly amended existing laws and preempted future legislation, without notice to or participation of the legislative body. It can give rise to conflict between convention and legislation which the Philippine Supreme Court, having already issued rules implementing the unratified treaties, might find itself unable to objectively resolve.
To summarize, Section II detailed how, in the course of judicial review, the Philippine Supreme Court engages with international law by ascertaining its source in convention, custom or general principles, and by applying its norms as the basis of rights and obligations or the standard of governmental conduct. Its application of norms of international law to domestic cases are materially inconsistent due to its arbitrary selection and use of formal criteria for the identification of the source of these norms in treaty, custom or general principles of international law. In these instances, it disguised judicial policy or legislation as norms of international law and shielded itself from accountability by the randomness in which it identified these norms by their source. These practices are an extreme case of democratic and rule of law contradiction.
Section IV illustrates how the Philippine Supreme Court, while ostensibly invoking international law, pushes back to defend a national position on a dispute over territory and a dispute over the jurisdiction of the ICC.
IV. The Third Wave of Judicial Review in the Philippines
The foregoing sections showed how inconsistencies in the domestic application of norms of international law are merely symptomatic of the arbitrariness by which the Philippine Supreme Court identified their sources in treaty, custom, or general principles. In the following two cases, the Philippine Supreme Court sidestepped the effects of the Rome Statute and the United Nations Convention on the Law of Sea (UNCLOS), the interpretation and application of which are at the centre of ongoing international disputes involving the Philippines.
In Bayan v. Romulo (2011), the Philippine Supreme Court declared that the Rome Statute is not a codification of customary international law because only “114 States out of a total of 194 countries in the world, or roughly 58.76%, have ratified it”.Footnote 140 No distinction was made for those provisions pertaining to jus cogens norms, such as on torture. Based on this decision, the understanding of the Philippine Supreme Court is that once a jus cogens norm is codified in the Rome Statute, its status is downgraded to a treaty norm.
Thus, in Pimentel et al. v. Cayetano et al. (2021), when a number of petitioners questioned the constitutionality of the government’s notice of withdrawal from the Rome Statute on the ground that it amounted to a derogation of jus cogens norms such as on torture,Footnote 141 the Philippine Supreme Court declared that no jus cogens norm survived for the incorporation in the Rome Statute of provisions permitting amendment and withdrawal signifies that these norms are now derogable. It held:
Generally, jus cogens rules of customary international law cannot be amended by treaties. As Articles 121, 122, and 123 allow the amendment of provisions of the Rome Statute, this indicates that the Rome Statute is not jus cogens. At best, its provisions are articulations of customary law, or simply, treaty law.Footnote 142
It concluded that Philippine withdrawal from the Rome Statute was not derogatory of any jus cogens norm. In effect, it considered the availability of treaty amendment and withdrawal as determinative of the purely statutory nature of the crimes proscribed under the provisions of the Rome Statute.Footnote 143 The foregoing interpretation by the Philippine Supreme Court has implications on an ongoing proceeding before the ICC Pre-trial Chamber regarding the residual effect of the Rome Statute on the case of a former Philippine president and several police officers, especially on the availability of the superior order defence.Footnote 144
In another case, the Philippine Supreme Court sought to deflect the indirect effect of a ruling of the Arbitral Tribunal in the South China Sea Arbitration on the territorial claim of the Philippines to the Spratly Islands.
In 1978, the Philippines passed Presidential Decree No. 1596, enclosing part of Spratly Islands as Kalayaan Island Group with seven straight lines and declaring the area, waters, seabed and airspace within it as part of Philippine territory:
Now, therefore, I, Ferdinand E. Marcos, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby decree as follows:
Section 1. The area within the following boundaries:
Kalayaan Island Group
From a point [on the Philippine Treaty Limits] at latitude 7°40ʹ North and longitude 116°00ʹ East of Greenwich, thence due West along the parallel of 7°40ʹ N to its intersection with the meridian of longitude 112°10ʹ E, thence due north along the meridian of 112°10ʹ E to its intersection with the parallel of 9°00ʹ N, thence northeastward to the intersection of the parallel of 12°00ʹ N with the meridian of longitude 114°30ʹ E, thence, due East along the parallel of 12°00ʹ N to its intersection with the meridian of 118°00ʹ E, thence, due South along the meridian of longitude 118°00ʹ E to its intersection with the parallel of 10°00ʹ N, thence Southwestwards to the point of beginning at 7°40ʹ N, latitude and 116°00ʹ E longitude; including the seabed, sub-soil, continental margin and air space shall belong and be subject to the sovereignty of the Philippines. Such area is hereby constituted as a distinct and separate municipality of the Province of Palawan and shall be known as “Kalayaan”.Footnote 145
In the 2016 South China Sea Arbitration, the issue of whether the Spratly Islands can be enclosed as an archipelago was addressed by the Arbitral Tribunal to the effect that “even the Philippines could not declare archipelagic baselines surrounding the Spratly Islands”.Footnote 146 A few years later, in Republic of the Philippines, et al. v. Provincial Government of Palawan et al.,Footnote 147 the Philippine Supreme Court ascertained whether a petroleum service contract area is located within the Kalayaan Island Group. It identified the extent of the Kalayaan Island Group by using the seven straight lines defined under Presidential Decree No. 1596Footnote 148 and declared the enclosed area, seabed, subsoil, continental margin, and airspace part of Philippine territory.Footnote 149 In effect, it reinforced the Philippine characterization of the Spratly Islands as an offshore archipelago in disregard of the ruling of the Arbitral Tribunal.
The foregoing cases illustrate a dimension of the third wave of judicial review in which the Philippine Supreme Court deflected a ruling of an international tribunal that is adversarial to the territorial claim of the Philippines and diminished a jus cogens norm to shield a former president from ICC jurisdiction.
V. Conclusion
This article set out to make sense of why active engagement by the Philippine Supreme Court with international law is marred by inconsistencies in interpretation and application. It examined how the Philippine Supreme Court interpreted and applied norms in various fields of international law and employed the formal criteria for identifying these norms by their source in treaty, custom or general principles. Its first main finding is that in the course of judicial review the Philippine Supreme Court referred to or applied norms of international law either as the basis of rights and obligations or the standard of the validity of governmental acts. It also weighed these norms against constitutional standards. Furthermore, it implemented these norms through the promulgation of procedural rules. Clearly, the first and second waves of judicial review have reached the Philippines. The second main finding is that the Philippine Supreme Court ascertained the source of these norms in international conventional law, international customary law and general principles of international law. However, it has been random, arbitrary and at times capricious in the selection and usage of the formal criteria for the identification of the sources of international law. The article then went on to examine the implications of these findings. It presented two cases in which the Philippine Supreme Court’s lack of care in determining the sources of norms in international law renders international law unstable and unpredictable. Such practices undermine the normativity of international law and, by extension, the legitimacy of the Philippine Supreme Court’s engagement with it. The article brings to light a dimension of the third wave of judicial review in the Asian context.
Acknowledgements
This article benefited from the comments of Maartje de Visser, Bui Ngoc Son and all the participants in the workshop “International Law in Asian Constitutional Courts”.
Funding Statement
I did not receive funding for this article.
Competing Interests
I have no knowledge of conflict of interest.
Dr Melissa LOJA is a postdoctoral fellow at the University of Copenhagen, Centre for European, Comparative, and Constitutional Legal Studies, Faculty of Law, Denmark.
