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COMMENTARY
No customary international law automatically confers nationality to foundlings
September 28, 2015 8:00 pm
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.
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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