No Customary International Law Automatically Confers Nationality to Foundlings

Ambassador Jaime S. Bautista

There is no customary international law that confers 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 are Philippine citizens.

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 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, 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.

         In the case before the Senate Electoral Tribunal questioning the qualifications of Senator Poe, the media reported that the Petitioner has conceded that Senator Poe is a Filipino citizen but has questioned whether she is a natural born citizen.  A suggestion was made at the hearing that she is a Filipino citizen by virtue of customary international law but not a natural born citizen because she is not a Filipina 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.

PAFI 2014 REPORT AND NOTICE OF ELECTIONS

 Jaime S. Bautista

The Philippine Ambassadors’ Foundation Inc. (PAFI) will hold its Annual General Meeting to review its activities in 2014 and to elect its Board of Governors for 2015-2017.  PAFI members include Philippine Ambassadors and Foreign Service Officers with the rank of Chief of Mission.  The AGM will be held at the DFA Summit Lounge on Tuesday, 17 March 2015 at 3:00 PM.

In the tradition of the DFA as the country’s first line of defense, PAFI’s Board of Governors and its members examined in 2014 the threats to our external and internal security, as well as the challenges posed by climate change,.

PAFI co-sponsored a forum on the proposed Bangsamoro Basic Law (BBL) with the Philippine Council on Foreign Relations.  The recommendations of the forum were endorsed by   PAFI to President Benigno S. Aquino III at the time that the Palace was examining the constitutionality of the draft BBL submitted by the Peace Panels.   PAFI stressed that, while PAFI supported the peace process, the BBL to be passed by Congress, after consulting all the stakeholders, should be consistent with the Philippine Constitution, and that it should build on the strength of the ARMM (Autonomous Region of Muslim Mindanao) Expanded Organic Law of 2001 (Republic Act 9054).  PAFI expressed the caution that local autonomy involves merely devolution of power and does not allow partition of Philippine territory.

PAFI further recommended to the President that “the Sabah Claim is linked to the issue of the Bangsamoro.  Sabah should be pursued in the context of Philippine sovereignty and territorial integrity and in accordance with the UN Charter.”

Recently, PAFI issued its 7 Points on the Mindanao Peace Process, stressing that the Philippines should regain ownership and leadership of the Mindanao peace process.

On the related issue of the rights of the Lumads and other original indigenous people of Mindanao, PAFI members participated in the forum held at the University of Asia and the Pacific to celebrate International Day of the World’s Indigenous People (IP).  The theme of the forum was “Empowering our Tribal Communities and Indigenous People in the Philippines” which supported the IPs rights to their cultural identity.  PAFI recognizes the IP as stakeholders in the Mindanao peace process.

With respect to the threats posed by China’s nine-dashed-line, China’s occupation of Mischief Reef and other submerged areas at high tide within the Philippines’ Exclusive Economic Zone, and China’s other violations of the maritime rights of the Philippines under the UN Convention of the Law of the Sea, PAFI supported the DFA’s position to submit these issues to arbitration by the International Tribunal of the Law of the Sea (ITLOS) as a peaceful mode of settling these issues.

PAFI likewise expressed support for the Expanded Defense Cooperation Agreement (EDCA) between the Philippines and the United States because EDCA safeguards the urgent security needs of the Philippines in all the areas covered by the Mutual Defense Agreement. These would include the scenario of an armed attack by a foreign country on the Armed Forces of the Philippines.  Therefore, PAFI sees EDCA as helping to preserve peace and stability in the Asia-Pacific region. 

As for the challenges of climate change, the Ambassadors’ Corner presented the outline of a coherent and sustainable fisheries and ocean governance program on an archipelago- wide scale.  Its implementation on a sustained and sustainable basis is important, not only because the Philippines is an archipelago with vast rich maritime resources for our people, but also because the Philippines is located in an area of the world exposed to natural disasters like typhoons, earthquakes and tsunamis. This program would be able to contribute significantly towards social-economic resiliency for the country as well as provide for food security.  The Ambassadors’ Corner also suggested a strategy for disaster risk reduction and prevention program in endangered towns and villages and disseminated climate change adaptation practices of some Asia and Pacific countries.

Finally, PAFI wishes to highlight its successful effort to preserve the historical cultural monument that is the Fujimi landmark of the Philippine Embassy in Tokyo.  PAFI has issued a Resolution to protect, from commercial exploitation, other Philippine historical and cultural monuments abroad, in coordination with the DFA.

The PAFI Board of Governors for 2013-15 is composed of the following: Lauro L. Baja, Jr., Chairman; Jose M. Zaldarriaga, President; Jose V. Romero, Jr., First Vice President; Rosalinda V. Tirona, Second Vice-President; Amado S. Tolentino, Auditor; Willy S. Gaa, Legal Counsel; Clemencio F. Montesa, Public Relations Officer; Estrella A. Berenguel; Jaime J. Yambao; Jose Macario Laurel IV, Immediate Past President; Jaime S. Bautista, Secretary General and Treasurer.

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PHILIPPINE AMBASSADORS’ FOUNDATION (PAFI) STATEMENT ON THE PEACE PROCESS IN MINDANAO

1.   PAFI supports continued good faith negotiations and vigorous efforts for just and lasting peace and sustained development in Mindanao.

2.   The Congress of the Philippines has the paramount duty to ensure that any revised organic law for the region in Muslim Mindanao is in accordance with the Philippine Constitution and will lead to genuine peace and prosperity for the entire nation.

3.   Enhanced autonomy is only devolution of power and does not allow partition of Philippine territory.

4.   The Mamasapano tragedy underscores the urgent need for confidence- building measures, including by the MILF, to gain the trust of the Filipino people in the peace process.

5.   The Congress of the Philippines should continue its consultations with all stakeholders, which should include drawing lessons from the experience of the 2001 Expanded Organic Act for the Autonomous Region in Muslim Mindanao.

6.   The PAFI appeals to the President to exercise due prudence and sensitivity in the peace process in view of the implications for the future peace, integrity, and prosperity, of the Philippines.

7.   The Philippine Government should regain ownership and leadership of the peace process.