An Essay on the Incorporation

case in which the very constitutionality of a treaty is under attack and the Supreme

Clause of the Constitution

as a Juridical Enigma
Merlin M. Magallona*
i. Principles of International Law as Philippine Law

* 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.

The Incorporation Clause of the Constitution reads in Section 2, Article II:

The Philippines [] adopts the generally accepted principles of
international law as part of the law of the land. []
It is by this provision that the Constitution incorporates a body of principles
of international law into Philippine law. Since these principles are part of the law of
the land, they are applied in domestic law as Philippine law. Intriguingly enough, if
they assume the status of Philippine law, do they cease to be international law?

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.

3 The generally accepted principles of international law as constitutionally

internalized derive and continue to derive their content from objective international
law. This process, over time, may create changes in the content or character of the
principles on the international plane, causing discrepancy between the same principles
in the two legal systems. Progress in the development of these principles on the
international plane may occur at a pace faster than in Philippine practice of the same
principles. On the international plane, progress is in terms of dynamics of general

The former may be referred to as objective international law and the

latter Philippine practice of international law. Their respective modalities of operation
in each legal system are not interchangeable; failure to observe this distinction
resulting from their interchangeability becomes the crux. In particular, the application

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.

of these principles as national law in the context of international law operating on

the international plane would give rise to an anomaly in judicial reasoning, as
exemplified in the application of pacta sunt servanda.
This principle of general international law mandates that Every treaty in force is binding upon the
parties to it and must be performed by them in good faith.1 The ponencia in Taada vs. Angara2
invokes this principle as part of the law of the land in the Incorporation Clause, a

A peculiar feature of the law of the Incorporation Clause is that it is placed

beyond the competence of national law to change its content nor to repeal it; a
deliberate attempt to amend it in a manner incompatible with objective international
law may alter its status as generally accepted principles of international law and,
hence, may erode away the juridical basis of its status as national law. These

consequences may be said to be the logical implications of the constitutional status

law. In other words, the Incorporation Clause being non-self-executory, there arises

that characterizes the Incorporation Clause principles.

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

Clause is designed by the Constitution as the transformative process by which a

process applies them in the resolution of a legal dispute.

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

II. Problems in Execution of the Incorporation Clause

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

what is constituted as law is deprived of its precondition of legality, namely, the

individual principles of international law in applying them as national law in a number

individual identity of the principles in question, which lends it the necessary element

of cases, in every instance showing that it is interpreting the generally accepted

of enforceability and effectiveness.

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

[G]enerally accepted principles of international law in the Incorporation

other fundamental rights as applied to all human beings, proclaimed by the Universal

Clause is a categorization of international legal principles for the purpose of making

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

which are not generally accepted. This categorization becomes a constitutional

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

principles of international law by itself cannot be intended to be invoked as applicable

law of the land.7

or enforceable law in support of a claim in a legal dispute. But it is the premise or

justification for the status and application of each individualized principle if it is to

As illustrated in these cases, the modality applied in dealing with the

operate as national law, without which such principle will not qualify as part of the

Incorporation Clause is comprised of invoking the category of principles, identifying

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

as established practice, as it does, then the identity of the national-law rules is

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

the individual principles identified in the absence of such category. Categorization

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

6 177 SCRA 668 (1959).

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.

the words of Lord Devlin?

III. Philippine Practice in Supreme Court Decisions

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?

In an obiter in U.S. vs. Guinto8 the Supreme Court contextualizes the

Incorporation Clause in a larger theoretical frame:
Sovereign immunity is one of the generally accepted principles of international
law that we have adopted as part of the law of the land under Article II, Section 2 [of

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.

Even without such affirmation, we would still be bound by the generally

accepted principles under the doctrine of incorporation. Under this doctrine of
incorporation, as accepted by the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition and consequence of its
membership in the society of nations. Upon the admission to such society the state
is automatically obliged to comply with these principles in relation with other states.

While the process of identification as a precondition for defining their nature

as national-law rules may be conveniently passed on as a normal judicial function of
interpretation, there remains the problem of constructive rule-making in which the
act of identifying what is the law is a virtual creation of rules in national law. In the
foregoing context, is the Supreme Court engaging in a judicial or legislative function?

Here, by a make-believe theoretical construction, a monist view is attributed

to the character of the generally accepted principles of international law in the
Incorporation Clause. The purpose of this Clause, according to Guinto, is to make
such principles binding on the Philippines; but in the same breath it asserts this
function is needless because even without the Incorporation Clause under the doctrine

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.

of incorporation the Philippines would still be bound by these principles. In this

mythical world, what appears as customary or general international law of which
the constituent norms are the generally accepted principles appear as an imposition
on States, helpless before the mechanical operation of a process by which the States
are automatically obliged to comply with these principles. Certainly, as thus
imagined, the Incorporation Clause becomes a surplusage and reduces the intent of

May Congress enact a catalogue of principles in implementation of the

the Constitutions framers pertaining to it an idle play of words.

Incorporation Clause, as alternative to incorporation as a judicial act? It seems so

extraordinary that what appears as a non-self-executory provision of the Constitution

The real world may instead be reflected in the perspective of the Permanent

is subjected to execution by judicial function. Is it time that the process should

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

1927, p. 18), as follows:

International law governs the relations between States. The rules of law binding

Constitution itself and statutory law.

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

2. The application of these principles as national law pertains to subjects or

regulate the relations between those co-existing independent communities with a

persons of Philippine law, comprising of individual natural persons and juridical

view to the achievement of common aims.

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

It is true, as indicated in Guinto, that generally accepted principles of

law.

international law are binding on the Philippines without this affirmation in the
Incorporation Clause. However, this pronouncement is made on the assumption

From this standpoint, it is inaccurate to assert, as does Taada vs Angara,9 that

that the object and purpose of the Clause is to make this body of principles binding

[b]y the doctrine of incorporation, the country is bound by the generally-accepted

on the Philippines which may be a misconception.

principles of international law which are considered to be automatically part of our

laws, referring to the Incorporation Clause. In the first place, it is not by the

Independent of its Constitution, the Philippines is bound by obligations arising

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.

the proclamation of the Constitution. Secondly, it is not the Philippines that is

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

Philippines as a State are such principles operating as objective international law,

international law.

not as its own national law.

This may have been the context of the binding character of the principles of

It is not at all out of context to refer to problems in regard to the application

international envisaged by Guinto. As a departure from this vantage point, the

of objective international law within Philippine jurisdiction, as contrasted to the

purpose of the Incorporation Clause is to internalize the principles of general

operation of principles under the Incorporation Clause. In Republic vs. Sandiganbayan,10

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

individualized nature. It is as national law that in domestic jurisdiction they create

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

principles into Philippine law gives way to the following consequences:

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

1. In Philippine jurisdiction, these principles are subordinated to the

was neither a constitution nor a Bill of Rights during the interregnum. Nor was

Constitution; their operation is subject to constitutional and legal standards. Indeed,

there an Incorporation Clause.

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

Hence, Republic arrives at the following conclusion:

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

Consider the absurdity Republic has created. A domestic court established by

9 272 SCRA 18, at 66 (1997).

a national constitution administering justice on violation of human rights upon the

10 407 SCRA 10 (2003).

petition of individual natural persons as subjects of international law, not national

11 407 SCRA 10, at 51 (2003).

law, and therefore they derive rights and obligations from objective international

Significantly, in applying the Universal Declaration of Human Rights and the

law operating on the international plane as customary law. The perpetrators of

International Covenant on Civil and Political Rights, as affirmed above, Republic

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

[T]he Court considers the Declaration as part of customary

of an international tribunal, but in truth it is an institution of national jurisdiction.

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

revolutionary government did not repudiate the Covenant or the

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

Declaration in the same way it repudiated the 1973 Constitution. As the

application of principles of customary or general international law is of dubious

de jure government, the revolutionary government could not escape

validity in domestic jurisdiction because the Philippine legal system requires these

responsibility for the States good faith compliance with its treaty

principles to be internalized as national law as a sine qua non for application.

obligations under international law.12

12 407 SCRA 10, at 58 (2003). Emphasis added.
Absent the Incorporation Clause, Republic could not have applied human rights

VOLUME 35 NUMBER 1 (AUGUST 2010) 2 5

protection as national law derived from generally-accepted principles of international

An Essay on the Incorporation Clause

law. It applies the Declaration, or its constituent rights, (a) as customary international

of the Constitution as a Juridical Enigma

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

obligations. It is only by this process that they become bearers of international

of breach of obligations under the Covenant. But under the Covenant the relevant

personality.

approach may consist in the invocation of State responsibility. Necessarily, this is to

be addressed to the State Party who committed the internationally wrongful act.

In reference to the continued binding character of the Covenant during the

Republic fails to recognize this problem.

interregnum, it would be less problematic if the distinction between State and

Government is kept in mind. The State as a person in international law is not

affected by internal changes in the Government even as such changes bring about a

Relations in Reyes vs. Bagatsing.16 In both cases, the principles embodied in

revision of fundamental law or restructuring of its institutions. The identity and

13 88 SCRA 195 (1979).

continuity of the State in terms of its rights and obligations under international law

14 Ibid., at 213.

is maintained despite revolutionary changes, such as those brought about by people

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.

One is likely to be bemused, if not amused, at the implication in Agustin that

road signs and signals have become principles of law. Be that as it may, it makes no

IV. Incorporation Clause and the Hierarchy of Norms in International Law

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.

An inquiry into the hierarchy of norms in international law is intended to

explore categories of law by way of determining some criteria for priority in the
application of generally accepted principles of international law. To begin with,
how is this phraseology to be interpreted?

By its nature as a source of law, the binding character of this Convention

is restricted to its States Parties, in contrast to generally accepted principles of
international law which are binding on all States. Agustin may even be taken to imply
that the entire Convention becomes national law by virtue of the Incorporation
Clause. But previous to Agustin, is it correct to suppose that the Convention been
already transformal into valid and effective domestic law on account of the Treaty

It is submitted that this phraseology is to be understood as the general rules

of customary law or general international law, considered to be binding on all States.
In the Lotus Case, cited above, the Permanent Court of International Justice describes
this category as expressed by usages generally accepted as expressing principles
of law. The principles are within the scope of Article 38(1)(b) of the Statute of the

Clause of the Constitution? Agustin may have, in effect, made the Convention

International Court of Justice in referring to international custom as general practice

Philippine law twice.

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

This seems to be true with respect to the right to return to

ones country under the International Covenant on Civil and Political Rights in
Marcos vs. Manglapus15, and to the special duty of the receiving State to protect the
diplomatic premises of the sending State under the Vienna Convention on Diplomatic

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

slavery and racial discrimination.19

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

covered by the supremacy clause of Article 103. It provides:

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

agreements, their obligations under the present Charter shall prevail.

peremptory norm of general international law is a norm accepted and recognized by

the international community of States as a whole from which no derogation is

These obligations under the UN Charter are derived from the principles which

permitted and which can be modified only by a subsequent norm of general

are binding on Member States as well as on the UN Organization itself, among

international law having the same character.

which are:
(a) sovereign equality of States;

It is provided in Article 64 of the Convention that the emergence of a new

(b) the duty to fulfil in good faith the obligations assumed by them in

peremptory norm is a ground for termination of treaties.

accordance with the present Charter;

(c) the duty to settle international disputes in a peaceful manner; and

The imperative character of obligations arising from a peremptory or jus cogens

(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,

or political independence of any state, or in any manner inconsistent with

wrongfulness of an act in breach of these obligations is not in any way precluded or

the Purposes of the United Nations.

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.

Case, the ICJ declares:

[.A]n essential distinction should be drawn between the obligations
of a State towards the international community as a whole, and those
arising vis--vis another State . [. . .] By their very nature the former are the
concern of all States. In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection: they are
obligations erga omnes.18

In the Declaration on Principles of International Law Concerning Friendly

Relations and Cooperation Among States in Accordance with the Charter of the
United nations, adopted by the UN General in Resolution 2625 (XXV) on 24 October
1970, the Member States in consensus accept and recognize that the following
constitute basic principles of international law:
(a) The principle that States shall refrain in their international relations from

In contemporary international law, erga omnes obligations are derived from

the threat or use of force against the territorial integrity or political

outlawing of acts of aggression, and of genocide, as also from the principles and

independence of any state, or in any other manner inconsistent with the

purposes of the United Nations.

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

establishes its correspondence with relevant principles of general international law

means in such a manner that international peace and security and justice

in terms of their substantive content, in the face of failure in Philippine practice to

are not endangered.

inquire into such correspondence, leading to arbitrary or whimsical assumption as

(c) The principle concerning the duty not to intervene in matters under the

to what might be the substantive content of the Incorporation Clause principles as

domestic jurisdiction of any state, in accordance with the Charter.

determined by objective international law. It is an attempt to contribute to resolving

(d) The principle of equal rights and self-determination.

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

constituted as law, without telling us what it is in operational identity: In one corner,

Charter.

the Constitution hides a law that is non-law in public knowledge.

The principles catalogued above have been recognized by the international

community as a whole as general international law. They embody obligations which
every State owes to the international community. Hence, these obligations are
properly regarded as erga omnes. Inevitably, by the nature of jus cogens norms they
embody erga omnes obligations. Even as all erga omnes obligations may not be in the
nature of jus cogens norms, jus cogens norms necessarily embody erga omens obligations.
The juridical character of the jus cogens norms as well as of erga omnes obligations is
deemed to be established by the international community as a whole.
What may appear as in the theory of actio popularis is the formulation of the
international Law Commission under its Draft Articles referred to above. Draft
Article 33 defines the scope of the obligation of the responsible State as including
those owed to the international community as a whole. A State injured by an
internationally wrongful act, under Draft Article 42, is entitled to invoke the
responsibility of another State on account of such act if the obligation breached is
owed to the international community as a whole. It becomes an internationally
wrongful act not only against one State but injurious to the interest of the international
community as a whole.
V. Concluding Note
The presentation in this essay is addressed to the problem as to the more
concrete identification of what are generally accepted principles of international
law which are constitutionally proclaimed as Philippine law under the Incorporation