PHILIPPINE CHRISTIAN UNIVERSITY

COLLEGE OF LAW
Manila

PUBLIC INTERNATIONAL LAW

Critic on:

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x----------------------------- -------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D.
VALDEZ

Submitted to:

ATTY. MARKK L. PERETE

Submitted by:

JANICE F. CABALAG
April 13, 2017
GR No. 221697-700
Mary Grace Natividad Poe-Llamanzares vs COMELEC
Page 2
x---------------------------------------------------------------------------------------------------------------------------------------------x

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

x----------------------------- -------------x

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND
AMADO D. VALDEZ Respondents.

x----------------------------- -------------x

This is one of the controversial cases when the Supreme Court in its
Decision dated March 8, 2016 penned by Justice Jose Perez declared Sen.
Mary Grace Natividad S.Poe-Llamanzares, who is a foundling, is a natural-
born citizen and met the 10-year residency requirement for the presidential
candidates, and is a qualified candidate for President in the May 9
elections.1

Based on this Decision, did the Supreme Court violates rules in

international law in allowing Sen. Poe to run for President?

Is International Law sufficiently protects the right of foundlings to a

nationality?

Is International Law gives foundlings the right to be considered

nationals of the State in which they are found?

Are States have a binding obligation to confer their nationality on

foundlings found in their territory?

Are there breaches in International Law resulting in inadequate

protection and implementation of the right of foundlings to a nationality?

Foundling, defined.

A foundling is a child of unknown parentage found abandoned on the

territory of a State. It must be an infant at the time it was found abandoned.

1
Supreme Court Decision dated March 8, 2016
GR No. 221697-700
Mary Grace Natividad Poe-Llamanzares vs COMELEC
Page 3
x---------------------------------------------------------------------------------------------------------------------------------------------x

A foundling as a deserted or abandoned infant; a child without a

parent or guardian, its relatives being unknown.2

A foundling is an infant that has been abandoned by its parents and

is discovered and cared for by others.3

Nationality and its nature

Nationality is the legal bond connecting a person to a particular State.
It makes a person a national or citizen of that State which creates
reciprocal obligations between the citizen and the State.
Everyone has a right to nationality and that no one shall be arbitrarily
deprived of his nationality nor denied the right to change his nationality.
International Law recognizes the right of each State to determine who its
citizens are, and to establish its own standards for conferring nationality
albeit only for domestic law purposes. 4
It is for each State to determine under its own law who are its
nationals. This law shall be recognized by other States in so far as it is
consistent with international conventions, international custom, and the
principles of law generally recognized with regard to nationality.5
Any question as to whether a person possesses the nationality of a
particular State shall be determined in accordance with the law of that
State.6

The state may confer the nationality upon a person born within its
territory by the application of the principles of jus soli (by place of birth), jus
sanguinis (by right of blood), an through naturalization. In addition, a State
may also consider marriage and adoption as methods of acquiring a
nationality.

The application of jus soli and jus sanguinis may result in an individual
having the nationality of two (2) States, the child possesses dual
citizenship. If a child whose parents State of nationality exclusively
applies jus soli is born in the territory of another State that
exclusively applies jus sanguinis, the child would not be considered
a citizen of either State; hence, a stateless person.7

2
Blacks Law Dictionary
3
Oxford English Dictionary
4
Article 15(1) of the Universal Declaration of Human Rights
5
Article 1 of the Hague Convention
6
Article 2 of the Hague Convention
7
Article 1 of the 1954 Convention Relating to the Statutes of Stateless Persons
GR No. 221697-700
Mary Grace Natividad Poe-Llamanzares vs COMELEC
Page 4
x---------------------------------------------------------------------------------------------------------------------------------------------x

Every stateless person has duties to the country in which he

finds himself, which require in particular that he conform to its laws
and regulations as well as to measures taken for the maintenance
of public order.8

Since nationality is the legal bond between a State and an individual,

there is no binding effect without the consent of the State. Since
nationality is the basis of the reciprocal obligation of allegiance on
the part of the citizen and obligation of protection on the part of the
State, a stateless person is not without obligations to the State in
which he finds himself.

Express consent is required for a State to be bound by the rules that

international conventions or treaties establish, States that do not become
a party to a particular convention or treaty cannot be bound by its terms. 9

A rule conferring nationality upon foundlings, if established pursuant

to an international convention or treaty, is only binding on States that are
parties to the said convention or treaty. Consequently, foundlings found in
States that are not parties to such an international convention may not
compel said States to give them their nationalities.

Under the International Law, the right of a foundling to a

nationality can be based on international conventions or on
international customs, both of which are considered to be sources
of International Law. 10

States are required to adopt every appropriate measure to ensure

that every child has a nationality when he is born. In this connection, no
discrimination with regard to the acquisition of nationality should be
admissible under internal law as between legitimate children and children
born out of wedlock or of stateless parents or based on the nationality
status of one or both of the parents. The measures adopted to ensure that
children have a nationality should always be referred to in reports by States
parties.11

A child whose parents are both unknown shall have the nationality
of the country of birth. If the childs parentage is established, its nationality
shall be determined by the rules applicable in cases where the parentage
8
Art. 2 of the 1954 Convention Relation to the Statutes of Stateless Persons
9
North Sea Continental Shelf Case
10
Article 38 (1)of the Statute of the International Court of Justice
11
General Comments No. 17
GR No. 221697-700
Mary Grace Natividad Poe-Llamanzares vs COMELEC
Page 5
x---------------------------------------------------------------------------------------------------------------------------------------------x

is known.12 A foundling is presumed to have been born on the territory of

the State in which it was found.

Where the nationality of a State is not acquired automatically by

reason of birth on its territory, a child born on the territory of that State of
parents having no nationality, or of unknown nationality, may obtain the
nationality of the said State. The law of that State shall determine the
conditions governing the acquisition of its nationality in such cases.13

The Charter of the United Nations acknowledges the existence of

customary international law through Article 38(1)(b) of the ICJ Statute,
which is incorporated into the Charter by Article 92 thereof.

The Court, whose function is to decide in accordance with

International Law such disputes as are submitted to it, shall apply
international custom, as evidence of a general practice accepted as law.14

A rule of customary international Law requires the presence of a State

practice (usus) and the belief that such practice is obligatory as a matter of
law or juridical necessity (opinio juris sive necesitatis). 15 It is an obligation
that a State assumes within the context of the Convention, and not arising
from a belief that it is rendered obligatory by the existence of a rule of
customary international law requiring it.

Some States give their nationality to foundlings found in their territory

but there is no indication that such practice is done out of legal obligation.

The right to nationality is a fundamental human right.16 The

application on foundlings is still a prerogative and discretion of the State. A
State has the exclusive prerogative to determine who its citizens are, which
may be limited only by international obligations that the State itself has
assumed in International Law.

The Philippines had not entered into any international treaty

recognizing and applying the presumption of parentage of foundlings;
neither is it so provided in the 1935 Constitution. References to
international law in the deliberations of the 1934 Constitutional Convention
- without an actual ratified treaty or a provision expressing this principle -
cannot be considered binding upon the sovereign Filipino people who

12
Article 14 of the 1930 Hague Convention
13
Article 15 of the 1930 Hague Convention
14
UN, Charter of the United Nations
15
Article 38(1)(b) of the ICJ Statute
16
UN Declaration on Human Rights
GR No. 221697-700
Mary Grace Natividad Poe-Llamanzares vs COMELEC
Page 6
x---------------------------------------------------------------------------------------------------------------------------------------------x

ratified the 1935 Constitution. The ratification of the provisions of the 1935
Constitution is a sovereign act of the Filipino people. Even if this
presumption were to be considered a generally accepted principle of
international law, it cannot be applied in the Philippines as it contradicts
the jus sanguinis principle of the 1935 Constitution, as well as the
distinction the 1935 Constitution made between children born of Filipino
fathers and of Filipina mothers.

The legal supporters of Sen. Poe- Llamanzares were kept on

mentioning Article 2 of the 1961 UN Convention on Statelessness 17 as
their defense that the Senator is a natural-born Filipino. However, the
Philippines is not bound by the said Convention because the latter is not a
party to it.

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 did not ratify
the Convention, its entry into force never took place or materialized.

Even if the Philippines had ratified the Convention, the Philippine

Constitution is sovereign overall and supersedes the Convention.

Furthermore, the Philippine Constitutions18 does not contain any

specific provision granting Filipino citizenship to foundlings.

17
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.

18
The 1935, 1973 and 1987 Philippine Constitutions