When constitutions collide with international law

BY ANTONIO CONTRERAS         JULY 04, 2019

I AM going to approach this issue not as a lawyer, much less an expert in international law, but as a political scientist with a working knowledge of international relations.

Many people argue that allowing China to fish in our exclusive economic zone (EEZ) is contrary to Article XII, Section 2 of the 1987 Constitution, which stipulates that marine resources within our EEZ shall be reserved only for the exclusive use and benefit of Filipino citizens. On the other hand, others argue that this was allowed under Article 62, Item 2 of the United Nations Convention on the Law of the Sea (Unclos), but only according to the “surplus principle” when the harvesting capacity of a coastal state is lower than its total allowable catch, and that this should be contained in a bilateral agreement. Furthermore, Item 4 of Article 62 stipulates that such agreement must be consistent with the laws and regulations of the coastal state.

We are therefore facing a situation where our Constitution collides with international law. The challenge is how do you solve this conundrum.

There is a related 1997 jurisprudence, when our Supreme Court upheld the ratification of the GATT-WTO, where it ruled that we partially waive our sovereignty every time we accede to international treaties and agreements. In GR 118295, the high court held that international law can limit our exercise of sovereignty, inasmuch as the UN Charter and other multilateral and bilateral treaties that we entered into have limited our sovereignty. On this one, however, the court took note that the “the underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens.”

However, in GR 139465, which was decided later on Jan. 18, 2000 on an extradition-related case, the court held that the Constitution, being the highest law of the land, prevails over any other statute, treaty or international agreement. In precise language, the court said that: “The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution.”

However, since this is a ruling that was done by the Supreme Court of the Republic of the Philippines, many legal scholars argue that these may not be binding in international tribunals. What prevails right now as the guiding principle in deciding conflicts between international law and domestic law is that the former is superior to the latter. In the 1872 Alabama Claims Arbitration Case, the United Kingdom was compelled to align its domestic law to its international obligations. In the 1932 Polish Nationals in Danzig Case, it was ruled that a state could not use its domestic laws to evade its obligations to other states which are provided in international agreements or treaties. Most recent is the 1988 UN Headquarters Case where the International Court of Justice reaffirmed the principle that international law prevails over municipal law.

Hence, it looks like it is not only our Constitution that appears to run in conflict with Unclos. Even domestic and international jurisprudence contradict each other, and two Supreme Court rulings are saying two different things. However, in the latter, one can argue that the extradition case decided in 2000 prevails over the GATT-WTO case which was decided three years earlier.

However, the conflict between local and international jurisprudence is not necessarily material if we further analyze the different jurisdictions for which they apply, and after examining the specific questions from which the controversy being adjudicated arise. It is clear that issues of the legality and constitutionality of acts of the Philippine government are adjudicated in domestic courts, and not in international tribunals. Thus, the judgment on the action of allowing other countries to fish in our EEZ will have to be weighed against our Constitution, where the prevailing jurisprudence issued by the court in GR 139465 would indicate that such move would be unconstitutional. Furthermore, even if we take into consideration the GATT-WTO ruling in GR 118295, the court said that any waiver of our sovereignty must be predicated on reciprocity, and thus would at least require a bilateral treaty, which incidentally is also required by Unclos.

On the international front, a reading of the Alabama and Danzig cases that prevail in international jurisprudence reveals that there must be an obligation which a state refuses to honor, and such obligation is anent to an international treaty or agreement. It therefore behooves us to ask if, under Unclos, we are obliged to grant other states access to our EEZ. A perusal of Article 62 of Unclos indicates that it is not a mandatory obligation on the part of the coastal state, but a conditional privilege given to the other state. Hence, it can be argued that Alabama and Danzig may not necessarily apply in the case of fishing rights in our EEZ.

In any case, for the issue to reach an international tribunal, an aggrieved state will have to file a case against the Philippines on the grounds of being denied access to our EEZ. Therefore, Alabama and Danzig can only be invoked if China files a complaint against us in the appropriate international body. And that is a very big if.

https://www.manilatimes.net/when-constitutions-collide-with-international-law/578965/