POSTSCRIPT / October 1, 2015 / Thursday


Opinion Columnist

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No int’l law confers Phl nationality to foundlings

TOO LONG have we been exposed to chatter that, whatever the Constitution says on who are Philippine citizens, customary international law automatically confers nationality to such foundlings as Sen. Grace Poe Llamanzares whose claim to being a natural-born citizen is being challenged.

Today we listen to Ambassador Jaime S. Bautista, who contends that there is no customary international law that confers a specific nationality to foundlings. He is a law professor at the Ateneo de Manila University and a pre-bar reviewer on international law, Philippine Christian University. In a commentary last Monday in The Manila Times, Bautista said:

“THERE is no customary international law conferring a specific nationality to foundlings. In principle, it is the sovereign right of a State to determine who are its citizens and the conditions for acquiring its nationality. However, States must respect their obligations under international law. In the case of the Philippines, the 1987 Constitution determines who Philippine citizens are.

“The right to a nationality was one of the rights pronounced by the UN Declaration of Human Rights, but not to a specific nationality. Its Article 15 (1) declares that ‘Everyone has a right to a nationality.’

“This Declaration was a non-binding instrument consisting of 30 articles adopted unanimously by the UN General Assembly with 44 for, none against, and eight abstentions. The US Supreme Court in a case about arbitrary arrest asserted that because UDHR was not binding at its inception, it could not establish a relevant rule of international law.

“The UDHR has served as a template for international agreements on human rights. Among them is the 1966 International Covenant on Civil and Political Rights (ICCCPR), which provides in its Article 24 that:

“ ‘2. Every child shall be registered immediately after birth and shall have a name.

“ ‘3. Every child shall have the right to acquire a nationality.’” (Emphasis supplied)

Convention: Foundlings need implementing law

BAUTISTA continued: “Subsequently, the 1989 Convention on the Rights of the Child reiterated and expanded on this right in its Article 7:

“ ‘1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.’

“Said Article 7 further provides in its Paragraph 2 that ‘States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, particularly where the child would otherwise be stateless.

“Thus, this Convention of the Rights of the Child recognizes the need for legislation for the child to acquire the nationality of a Contracting Party, and also recognizes that if implementing legislation is not passed, a child could be stateless.

“The Philippines is a Contracting Party to both the ICCPR and the Convention on the Rights of the Child. Prior to these Conventions, the 1961 Convention on the Reduction of Stateless also recognized that States maintain the right to elaborate the content of their nationality laws but obliged a Contracting Party to grant its nationality to persons born in its territory who would otherwise be stateless.

“The Philippines is not bound by this Convention because it is not a Contracting Party.

“As a Contracting Party to the Convention on the Rights of the Child, the Philippines has the responsibility to pass legislation to protect the rights of a foundling (one whose father and mother are unknown), including the right to acquire Philippine citizenship in accordance with the Philippine Constitution.

“This Convention evidently recognizes that, without legislation passed by the Philippine Congress, a foundling in the Philippines would not be able to acquire Philippine citizenship.

“The 1987 Philippine Constitution, like the previous 1935 and 1973 Constitutions, observes the principle of jus sanguinis and distinguishes between natural-born citizens (born of Filipino parents) and naturalized citizens. The Philippine Constitutions do not contain any specific provision granting Filipino citizenship to foundlings.”

Phl didn’t ratify 1961 UN Convention

ONE reader signing in as “erlee” reacted:

“Thank you for this article as you named the relevant Declaration, Convention, Covenant, etc. to the citizenship case of Mrs. Llamanzares. It is also a good thing that you indicated that the Philippines is not bound by 1961 UN Convention on the Reduction of Statelessness because it is not a Contracting Party to the Convention. A number of legal supporters of Mrs. Llmanzares keep mentioning Article 2 of this Convention in support of their position that she is a natural-born Filipino:

“Article 2: ‘A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State’.

“What I found intriguing and unusual from these supposedly knowledgeable experts is their failure to mention, either from a lack of awareness or more likely, from deliberate omission, the fact that the Convention is non-enforceable or has no force in the Philippines. Article 12 of the Convention even acknowledges this point:

“ ‘The provisions of Article 2 of this Convention shall apply only to foundlings found in the territory of a Contracting State after the entry into force of the Convention for that State’.

“Since the Philippines (the State) did not ratify the Convention, its ‘entry into force’ never took place or materialized.

“More important than Article 2 of the 1961 Convention is the primacy of the express provisions of the Philippine Constitution in respect of citizenship (equal to the word ‘nationality’ in the Convention). Even if the Philippines had ratified the Convention, the Philippine Constitution is sovereign overall and supersedes the Convention.”

(First published in the Philippine STAR of October 1, 2015)

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