COMMENTARY

No customary international law automatically confers nationality to foundlings

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THERE is no customary international law conferring a specific nationality to foundlings. In principle, it is the sovereign right of states 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 are Philippine citizens.

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The right to a nationality was one of the rights pronounced by the UN Declaration of Human Rights (UDHR), 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 8 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.)

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, in 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 Part to both the ICCPR and the Convention on the Rights of the Child. Prior to the latter Convention, the 1961 Convention on the Reduction of Stateless also recognizes that States maintain the right to elaborate the content of their nationality laws but obliges Contracting Parties 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 Congress of the Philippines has the responsibility to pass legislation to protect the rights of foundlings, referring to those whose father and mother are unknown, specially to acquire Philippine citizenship in accordance with our national law, i. e., the Philippine Constitution. This Convention 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 provision expressly granting Filipino citizenship to foundlings, or those whose parents are unknown.

In the case of Senator Grace Poe before the Senate Electoral Tribunal, the media reported that the Petitioner conceded that Senator Poe was a Filipino citizen but questioned whether she is a natural born citizen. A suggestion was made that she is a Filipino citizen by virtue of customary international law but not a natural born citizen because she is not a Filipino by blood (jus sanguinis) but by operation of law (naturalization). On the other hand, as there is no customary international law automatically granting nationality to foundlings, the question arises whether recognition that Senator Poe is a Filipino citizen would imply that she is a Filipino citizen by blood, not having been naturalized. In the end, the issue of whether Senator Poe is a natural born citizen of the Philippines will probably be decided by DNA tests.

The author is Professor-of-Law, Ateneo de Manila University and Pre-Bar Reviewer on International Law, Philippine Christian University.

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16 Comments

  1. Recently Grace Poe stated that being a Filipino is not only because of title on paper but on how you live, honestly and with integrity. Obviously, kumukuha nang simpatiya sa mga mamayan. Another contention on her intentions then… Before becoming a US citizen she would have been a green card holder. If she has every intention of going back to PI, serving her countryman as she declares, she should have stayed as green card holder and maintained her Philippine citizenship. During that time she has no intention of coming back contrary to what she is saying that the Philippines and the millions of filipinos was always in her heart and always thinking of serving.

  2. Christopher Robbins on

    Every person has a unique DNA fingerprint except for identical twins. We all inherit half of our DNA from our biological father and half from our biological mother. DNA testing tries to discover the 50% match between the child’s and the parent’s DNA profiles to prove or disprove the blood relationship. DNA parentage testing is considered to be 100% accurate.

    It follows that siblings of the same mother and father would have identical DNA.

    But what if Grace is a love child with no siblings of the same parents which is the most likely scenario? In fact, the best scenario is that she has the same mother as the DNA donor, but not the same father because it is inconceivable if the donor is a full sibling i.e. same mother and father.

    Therefore, this will result in a DNA match of only 50%, far less than what the SC requires.

    The 1935 Constitution which applies to her case provides that for her to be considered a Natural Born Citizen she must either be

    3) born to a Filipino father, or

    4) born to a Filipino mother, and upon reaching the age of majority, elected Filipino citizenship.

    As Justice Carpio puts it. 3) is Jus Sanguinis, and 4) is Jus Sanguinis plus election.

  3. Thank you Ambassador Bautista for this article. I’ve been raring to read what are relevant international laws applicable to Grace Poe’s case since she and her lawyers have been insisting their presumption of her natural born Filipino citizenship based on international laws. After reading your article, I tend to believe the position taken by Atty. Manuelito Luna (counsel of the petitioner) and Justice Carpio, that even if there are generally accepted principles of international laws, an enabling law is necessary to comply with those principles. The lack of an enabling law is precisely one of the points raised by the petitioner’s counsel to argue the presumption made by the respondent with regards to being natural born Filipino.

  4. Ms. GP and her handlers knew how to create a sentiment that will play vital to the demographics which is in terms of populace is majority POOR FILIPINOS that can be easilty swayed. Go to the provinces and hinterlands and few days before their campaign sorties, play for public viewing without charge old FPJ movies and there you are Ms. GP’s votes. This group of the populace do not care about issues emanating..they don’t even care abour Ms. GP. Whatever, they vote for GP or not will have the same results….lousy Government that never cared to alleviate their kinds, like they were poor during Mambo, poor during Kong Dadong, poor during FM, poor during Cory, poor during the Infidel, poor during GMA, sickening poor with BSA, they will be poor thereafter whoever will be RP Pres..they do not care. As long as the majority of the populace is POOR, simply counted as vote numbers easily to be had, there can be no saintly creature to be named as RP Pres. All in politics is numbers, you have more number of votes than your opponent you win. Sway the POOR on your side and you have more numbers. Ms. GP has the means to sway the POOR to her side, she had FPJ and his old movies. That is all she has as testament ro her sincerity to govern. I am CRINGINGGGGGG…..

  5. Jose A. Oliveros on

    This essay of Amb. Jaime S. Bautista sufficiently and directly answers the contention of former Chief Justice Artemio V. Panganiban in his Philippine Daily Inquirer last Sunday which some newspapers have carried as new items. Just because the one who wrote that article happens to be a former Chief Justice of the Supreme Court does not mean that he is like the Roman Pontiff whose declarations on matters of faith and morals in the Catholic Church are infallible if given ex-cathedra. I am glad that Amb. Bautista wrote this essay which I hope will be picked up and published by the same newspapers that reported on the Panganiban column.

  6. Beyond the natural-born Filipino issue of Mrs. Llamanzares, is the question of SOLID loyalty to the Republic of the Philippines for the protection and defense of its Consititution. Also, what does she bring to the table to show that she is ready to govern 100 million or so Filipinos, after a two-year stint in the Senate and her stint in a board, by virtue of a presidential appointment? Does anyone feel ‘comfortable’
    to have a Philippine president who is married to an American citizen and whose children are all American citizens?

    Folks, this is not a movie; this is “REAL”! .

  7. I have extended my unsolicited advice to Ms. Grace Poe many times that she should give up her quest for the highest position and remain where she is now. But her ambition will eventually be her downfall.

  8. if the DNA test ( assuming) proves that GP is a filipino,, but later she denounce her citizenship when she pledge allegiance to the US and acquire US citizenship is she not a naturalized US citizen? then for convenience and opportunity given to her she ” RE-ACQUIRED” her Filipino citizenship by process and regained her Filipino citizenship…… then it is only correct to say that GP by virtue of re-acquiring her Filipino citizenship is now a naturalized Filifino citizen and not a natural born citizen which our constitution bar from running to the highest office and senator?

    • Your logic escapes me. If she was a natural-born Filipino by virtue of her successful DNA testing, but lost it when she became an American citizen and eventually reacquires it, why would she be a naturalized Filipino if she was considered a natural-born before she lost her Philippine citizenship. Re-acquisition means recovering what you lost. Therefore, she would simply reacquire her being a natural-born Filipino.

  9. Agree about the establishing paternal lineage by principle of Jus Sanguinis because that is the provision of our Philippines Constitution. Even in the absence of a statute for status of citizenship, the jus sanguinis still must apply because that is what is stipulated. Hierarchy of law puts Philippines Constitution supreme above international law. With this DNA testing, Llamanzares’ camp cannot just simply say that she has positive DNA test since that is rendered useless in as fas as proving their cause. What really matters is that they can prove that her DNA matched to that of the sample of whoever bloodline source/relative they took the blood from. Therefore, they need to reveal WHO is that sample they compared Llamanzares’ DNA sample to. Consequently, that would necessitate divulging to “whom” did they get the source from. After all, it is the bloodline we are trying to prove her.

    • Jose A. Oliveros on

      Under the rules promulgated by the Supreme Court on DNA evidence, a biological sample from the supposed father or mother, as the case may be; and another from the child claiming to be the offspring by the supported father or mother should be secured and the procedure for securing those samples and ensuring that they have not been tampered with or their integrity compromise are also provided for. And only a 99.99% match or higher will conclusive prove that a child is really the offspring of the supposed father or mother. In the case of Grace Poe-Llamanzares, her lawyers announced that the results of her DNA test would be forthcoming in the coming weeks without announcing who provided the sample, why he or she was chosen to provide the sample, who take the sample, etc. etc. So how can we trust the accuracy of the DNA test on her.

    • maybe her DNA sample came from herself and Voila! it’s 99.99% a match. she wouldn’t really tell the public where she got the sample from because according to her, it’s a secret.

  10. Wonderful commentary, Prof. Quiambao.
    Why are other Filipino lawyers proclaiming–against your more solid, correct and also SC Justice Carpio’s reading of the laws–that Grace Poe is a citizen and a natural-born one of the Philippines?
    Answer: Because they are bent on imposing on our Republic the Rule of Lawlessness tat their masters the Rich and Powerful foriegners who control our politics and our economy.

  11. Thank you for this article as you named the relevant Declaration, Convention, Covenant, etc. to the citizenship case of Mrs. Grace Poe 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. Poe Llmanzares who write opinion columns for the Philippine Daily Inquirer (for example, former SC Chief Justice Artemio Panganiban and UE law professor Mr. Oscar Franklin Tan) 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 Covention is non-enfroceable 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. As things now stand after two SET hearings, and based on the 1935 Philippine Constitution which applies to her case, Grace Poe Llamanzares is not a natural-born Filipino. The burden of proof is on her. That is why she has now subjected herself to a DNA test – a test which she refused earlier on grounds that “mga katotohanan and sinasabi ko”. Before the SET hearings commenced, she thought that her mere say-so that she is a natural-born Filipino would suffice and be accepted automatically by the public at large. “Akala niya makakalusot siya” because she is so popular (always number one in the questionable SWS surveys), and a powerful and influential cabal is behind her. Fortunately, a concerned citizen Mr. Rizalito David stepped forward to challenge her claim, and now, her eliigibility to sit as a senator in the Senate is in jeopardy. The mythology that has been created for her and by her appears to be unravelling. A DNA test is ultimately an admission that “jus sanguinis” or blood relationship will determine her natural-born status..

    • pakilinaw po ” jus sanguinis” bilang prinsipyo ng pagkamamamayan batay sa ating saligang batas …… ibig po bang sabihin kahit ni- renounce na ni GP ang pakaFilipino nya noong manumpa siya bilang mamamayan ng amerika Filipino pa rin siya? noong bumalik siya sa Pilipinas at muling manumpa bilang mamamayan ” di po ba isa na lamang siyang ” naturalized Filipino? dahil sa dumaan siya nang proseso para makuha ang pagiging Filipino…… Ano ang relasyon at bigat ng DNA test gayong malinaw pa sa sikat ng araw na kaya siya muling naging Filipino ay ni-RE ACQUIRE ” LAMANG NYA ITO?