Death penalty: No opting out

The Philippine Senate recently received advice from a UN monitoring office that it could not, without violating international law, pass a bill that would return the death penalty into the country’s statute books. I have repeatedly pointed this out. 

We became parties to the Second Optional Protocol to the Covenant on Civil and Political Rights. Article 1 of the Protocol cannot be any clearer than it is succinct: No one within the jurisdiction of a State Party to the present Protocol shall be executed. By virtue of the Executive’s ratification and Senate concurrence, the Protocol entered into force for the Philippines.

Of course, statutes can always be amended and repealed by subsequent acts of the legislature of equal rank. But treaties are not the same thing, because they are covenants we enter into with other States and, as in the present case, establish a regime that cannot be left to the unilateral disposition of one of the State-parties.

Treaties (and protocols are essentially treaties) are entered into by the sovereign power of a State to bind itself, in what can be reasonably characterized as auto-limitation of power.  That, social contract theorists have always taught, lies at the heart of any organized society – whether it be a domestic society or a community of nations: auto-limitation of individual autonomy. So there is really no reason for us to be bawling about a derogation of our “sovereignty”, and whining that our “freedom” has been compromised!

The incorporation clause of Article II of our Constitution makes the generally accepted principles of international law part of the law of the land. This is not empty rhetoric. It is a constitutional provision, and it has been held to be one of the self-executing principles found in Article II. One of the accepted principles of international law is that a treaty can be denounced (the “opt-out” mechanism) only when the treaty provides for it, otherwise, there is no way that a State-Party, having acceded to a treaty, can extricate itself from its obligations.  Once more, this quite clearly results in a limitation on what our Legislature may or may not pass – but it is a limitation we took upon ourselves by acceding to the treaty.

In respect to human rights treaties (as well as in the case of other treaties, such as the settlement of territorial boundaries) there are no provisions for treaty-denunciation and it should not be too difficult to see why: Human rights have attained a status both of importance and urgency that they did not have prior to the Second World War. 

It took the egregious violation and the shocking transgression of human rights on a scale that remains shocking to awaken the world to the primacy of human rights. And when States freely take upon themselves the obligations imposed by human rights treaties, then it is the better policy to disallow them from going back on their word.

Of course, the Philippines can strike a cavalier pose and pass a death penalty bill anyway. And under the flow of the municipal law system – the domestic laws of the Philippines – the trial courts will then sentence some persons to death and, after the exhaustion of all post-conviction remedies, the Bureau of Corrections will inflict the awful sentence. 

Interdependent world

We can then congratulate ourselves about having dutifully executed our laws – except for one thing: We remain bound by our international obligations and fortunately, it is a highly interdependent world in which we live, the loud mouths of boastful leaders who claim we do not need the rest of the world notwithstanding!

Should we insist on passing a death penalty law and executing condemned persons under its provisions, we will then be in violation of our international obligation not to execute. This will allow the relevant monitoring Committee to receive reports of our violation and to require comment on the part of the government. If the international community is met with contumacy on our part, it has an arsenal of enforcement mechanisms. Iran heaved a tremendous sigh of relief after sanctions against it were lifted because whether autocrats accept it or not, sanctions can be burdensome, painful and really punishing.

No, it never makes good sense to flaunt our violation of international law. After all, when rapacious neighbors who are armed to the teeth dig into our pie and leave not even the crust to us, we seek relief by invoking our rights under international law. We take umbrage because our rights under international law shall have been violated.  

But we cannot engage in double-speak. If we desire the guarantees and the protection of international law – and the world order it endeavors to establish – then it should not be one of our legislature’s options to doggedly pass a bill that diametrically negates an international duty.  This is no time to play the childish role of neighborhood toughie. This is the time to manfully stand by our word! – Rappler.com

The author is vice president for administration and finance of the Cagayan State University and Dean of the Graduate School of Law at San Beda College.