An Essay On The Incorporation
An Essay On The Incorporation
case in which the very constitutionality of a treaty is under attack and the Supreme
* Professorial Lecturer; Former Dean and Professor of Law, University of the Philippines College of
Law.
1 As codified in Article 26 of the Vienna Convention on the Law of Treaties.
2 272 SCRA 18, at 66 (1997). This case pertains to the constitutionality of the Agreement
Establishing the World
Trade Organization (WTO) and the annexed agreements.
VOLUME 35 NUMBER 1 (AUGUST 2010) 1 9
An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma
Court is called upon to exercise its review power which empowers it to strike down
a treaty as unconstitutional or invalid.
The complexity of this problem has never been investigated and continues to
generate confusion in the application of these principles, without scrutiny.
Incorporation (or internalization) has given rise to the dual character of these
principles. They remain in the nature of international law operating on the
international plane governing the relations of States and other subjects of international
law. At the same time, they are a category of national law binding upon subjects of
Philippine law.
practice of States; whereas, in national law, through the exercise of judicial function
by the Supreme Court. The problem of discrepancy, however, may fail to be
recognized except in the awareness of the distinction between objective international
law and Philippine practice.
law. In other words, the Incorporation Clause being non-self-executory, there arises
the duty to effectuate it, which leads to its execution through the identification of
The heart of the enigma lies in the fundamental problem that the Incorporation
the individualized principles as thus determined as national law, and in the same
body of principles in objective interactive law becomes national law, but the identity
of these principles as individualized is not known. It is a serious deficiency of a
normative system to institute norms or principles as law, and in the same process
In the exercise of its constitutional function, the Supreme Court has identified
individual identity of the principles in question, which lends it the necessary element
principles of international law under the Incorporation Clause. Thus, the Court in
Mejoff vs. Director of Prisons4 applies as national law the right to life and liberty and all
other fundamental rights as applied to all human beings, proclaimed by the Universal
Declaration of Human Rights, in relation to the fact that by its Constitution (Art.
them national law. Excluded from this category for this purpose are principles
II, Sec. 3) the Philippines adopts the generally accepted principles of international
law as part of the law of the Nation.5 In Marcos vs. Manglapus,6 the Court says: The
directive to the effect that only principles within the scope of this category will be
right to return to ones country is not among the rights specifically guaranteed in the
accorded the status of national law. More important, perhaps, is that it necessarily
Bill of Rights, which treats only of the liberty of abode and the right to travel, but it
implies the grant of authority to identify the principles of rules that will be effectuated
is our well-considered view that the right to return may be considered, as a generally
as national law. In this light, obviously, the whole category generally accepted
accepted principle of international law and, under our Constitution, as part of the
operate as national law, without which such principle will not qualify as part of the
law of the land. The category is provided as a criterion for identifying the operative
the individualized principle and applying it. If on the whole this modality has settled
rules which embody rights and duties. It makes no sense in having this category
without individualizing the principles within its scope and there is no sense having
determined by the exercise of judicial function, from which the following problems
are:
and individualization are integral to the whole, useless each without the other.
4 90 Phil. 70 (1951).
5 As provided in the 1973 Constitution.
This outlook gives clearer light to the view that the Incorporation Clause
requires the exercise of the implied authority to identify the operative rules in terms
of specific rights and duties by way of compliance with the constitutional mandate
that the generally accepted principles of international law be made part of Philippine
7 In denying the issuance of travel documents to the petitioners, the Court is apparently mindful of the
restriction to this right under the International Covenant on Civil and Political Rights, pertaining to
national security and public order. See Article 12(2) and (3) of the Covenant.
How is the date of effectivity of these rules determined? Do they take effect
simultaneously with the Incorporation Clause as part of the Constitution? If so, do
they take effect in the absence of their identity and substantive content?
If the individualized rules or principles derive the date of effectivity from the
the Constitution].
promulgation of the Supreme Court decision in which they are identified as national
law under the Incorporation Clause, it may appear that their nature as operative
rules comes into existence only after the fact, i.e., after the situation they are intended
to govern has taken place. Necessarily, in effect, they are made to govern such a
situation by the retroactive application of the Courts decision, in contravention of
the fundamental principle of legality.
At any rate, in the last 60 years, less than 50 principles have been declared by the
Supreme Court as within the scope of the Incorporation Clause. Mostly, however,
they are covered by obiter dicta; invariably, there is no showing that they are made to
correspond to the substantive content of general international law on the international
plane.
The real world may instead be reflected in the perspective of the Permanent
Court of International Justice as expressed in the Lotus Case (PCIJ, Series A, No. 10,
now cross the Rubicon that divides the judicial and the legislative powers, to borrow
International law governs the relations between States. The rules of law binding
upon States therefore emanate from their own free will as in conventions or by
usages generally accepted as expressing principles of law and established in order to
entities, thus striking a difference from their status in the international order in
which they govern the legal relations of States and other persons of international
law.
international law are binding on the Philippines without this affirmation in the
Incorporation Clause. However, this pronouncement is made on the assumption
that the object and purpose of the Clause is to make this body of principles binding
doctrine of incorporation that the principles in question become national law, but by
from general international law as a State, as a person in the international legal order.
They are obligations that pertain to objective international law as it operates on the
bound by its own national law derived from such principles; rather, it is the Philippines
international plane. In this light, the rights and duties of the Philippines are created
that makes its law binding on persons within its jurisdiction. What is binding on the
and are governed by international law. In general, they are binding on subjects of
international law.
This may have been the context of the binding character of the principles of
international law into Philippines law, insofar as they are identified in their
the Supreme Court deals with what it describes as interregnum, the period after
the abrogation of the 1973 Constitution by the people power revolution and before
rights and duties binding on subjects of Philippine law. The transmutation of these
the installation of the 1987 Constitution, during which violations of human rights
were allegedly committed. During the interregnum, says Republic, a person could
not invoke any exclusionary right [in evidence] under a Bill of Rights because there
was neither a constitution nor a Bill of Rights during the interregnum. Nor was
they derive their operative validity from the Constitution by virtue of the proclamation
in the Incorporation Clause that they are constituted as national law. This marks a
radical departure from their legal status in the international sphere as constituent
We hold that the Bill of Rights under the 1976 Constitution was not operative
norms of objective international law in which they hold supremacy over the
during the interregnum. However, we rule that the protection accorded to individuals
under the Covenant and the Declaration remained in effect during the interregnum.11
law, and therefore they derive rights and obligations from objective international
human right violations must also necessarily be subjects of international law and
explains that:
they are parties to the dispute in which they are charged of having breached obligations
created under international law. Logically, the court must have assumed the function
international law, and that Filipinos as human beings are proper subjects of
international law laid down in the Covenant. The fact is the [people power]
Its judgment certainly has no bearing at all in the context of objective international
law in which it assumes no validity. It remains integral to national law which defines
the courts jurisdiction. Its judgment binds no one in the international sphere; its
validity in domestic jurisdiction because the Philippine legal system requires these
responsibility for the States good faith compliance with its treaty
law. It applies the Declaration, or its constituent rights, (a) as customary international
law and (b) not in the interest of Filipinos as citizens but as human beings, by these
two factors signifying that Republic is applying objective international law on the
It must be underscored that what Republic means in reference to the legal status
international plane, not as Philippine law the first phenomenon of its kind in
of Filipinos is that they are beneficiaries in human rights treaties which are concluded
Philippine jurisprudence.
by States as subjects of international law. It is true that individual natural persons may
become subjects or persons of international law but only under conventional
It is not clear how the protection under the Covenant would apply. In invoking
international law, i.e., by treaty concluded by States, which define their rights and
it, Republic may be understood to mean that protection becomes operational on account
of breach of obligations under the Covenant. But under the Covenant the relevant
personality.
affected by internal changes in the Government even as such changes bring about a
continuity of the State in terms of its rights and obligations under international law
14 Ibid., at 213.
15 Supra, note 6.
power.
16 In both cases, the principles embodied in international conventions which are already binding on
the Philippines as State Party
Agustin vs. Edu13 relates itself to the Incorporation Clause in the following manner:
It cannot be disputed then that this Declaration of Principle found
in the Constitution possesses relevance: The Philippines [] adopts the
generally accepted principles of international law as part of the law of the
land [. . .T]he 1968 Vienna Convention on Road Signs and Signals is
impressed with such a character.14
are subsequently subsumed under the Incorporation Clause by which again they become part of
Philippine law. International conventions which are already binding on the Philippines as State Party
are subsequently subsumed under the Incorporation Clause.
Philippine practice in this sense has the effect of importing treaty norms to the
regime of Incorporation Clause principles, unmindful of the nature of these principles
as customary or general international law, in contrast to the binding character of
conventional or treaty norms as limited to the parties to it.
sense in referring to the Vienna Convention in its entirety as impressed with the
character of generally accepted principles of international law. The nature and
form of this category of principles defies reference to the entire international
convention.
Clause of the Constitution? Agustin may have, in effect, made the Convention
accepted as law. They preclude rules which are binding only on a few or a small
number of States. It is suggested that it is by reason of the binding character of
these principles on all States that provides a decisive rationale to their status under
the Incorporation Clause.
1. Out of the whole corpus of general international law, the Vienna Convention
rules concerning the basic rights of the human person, including protection from
on the Law of Treaties creates the category of peremptory norms (jus cogens) which
has acquired supremacy over treaties concluded in conflict with such norms. They
have become the standard of validity of treaties. Article 53 of this Convention
3. Obligations of Member States under the Charter of the United Nations are
defines peremptory norms and describes their binding character with respect to
treaties, thus:
In the event of a conflict between the obligations of the Members of the United
A treaty is void if at the time of its conclusion, it conflicts with a peremptory
Nations under the present Charter and their obligations under any other international
norm of general international law. For the purposes of the present Convention, a
These obligations under the UN Charter are derived from the principles which
which are:
(a) sovereign equality of States;
(b) the duty to fulfil in good faith the obligations assumed by them in
(d) prohibition against the threat or use of force against the territorial integrity
norm is applied beyond the law of treaties. Under the law of State responsibility,
excused.17
(e) Universal respect for, and observation of, human rights and fundamental
freedoms with distinction as to race, sex, language or religion.20
2. Principles or norms that embody erga omnes obligations are said to prevail
over those which bind one State in relation to another State. In the Barcelona Traction
17 See Article 26 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts
prepared by the International Law Commission.
outlawing of acts of aggression, and of genocide, as also from the principles and
Clause. It may serve to provide a guideline by which this category of national law
(b) The principle that states shall settle their international disputes by peaceful
means in such a manner that international peace and security and justice
(c) The principle concerning the duty not to intervene in matters under the
the enigma that is the Incorporation Clause which declares that something is
(e) The duty of States to cooperate with one another in accordance with the
Charter.