For nearly a decade of Philippine foreign policy, the Arroyo government’s foremost failure lay in ensuring meaningful compliance with preventive and/or remedial duties under international law conventions and customs. They failed to prevent torture, extrajudicial killings, and enforced disappearances of journalists, lawyers, political activists and dissidents, or provide mechanisms for victim redress. They also failed to ensure that the domestic policy and regulatory environment would be predictably consistent with the Philippines’ international investment and trade obligations, as seen from the protracted domestic litigation and international arbitration of claims over the NAIA-3 Terminal, and more recently, the WTO lawsuit initiated by the United States and the European Union regarding preferential tax rates that have long favored the few dominant local monopolists in the Philippine alcohol market. They failed to meaningfully prevent or punish corruption, which the Philippines had long been committed to doing under the UN Convention Against Corruption. They did not succeed in preventing, stopping, or punishing serious breaches of the laws of armed conflict (such as child soldier enlistment, targeted killings of civilians and destruction of civilian properties, and other egregious violations of Common Article 3 to the Geneva Conventions). Despite the 1987 Constitution’s express renunciation of war as an instrument of national policy, the Arroyo government committed Filipino troops to an aggressive war in Iraq. Finally, despite assuming international obligations in conventions on labor migration, human trafficking, child welfare and the protection of women, the Arroyo government’s enforcement record remained sparse.
Desierto
A principled foreign policy for the new Aquino administration must therefore show both constituents at home and fellow States abroad that the Philippines will stand for credible and committed compliance with our extensive international legal obligations, especially on international human rights and international humanitarian law; the use of force; international trade, investment, and development law; and the new and continued regional obligations under the new ASEAN Charter. The 1987 Constitution stresses the Philippines’ deep commitment to international law—we “adopt the generally accepted principles of international law as part of the law of the land” while expressly incorporating many international legal norms in our constitutional text. We cannot afford to sweepingly conclude, but selectively enforce, international agreements and commitments.
I suggest the following specific reforms for the first 100 days:
1. Provide credible legal protections for Filipinos at home and abroad
Since the Philippines is the third largest source of migrant labor, the new Aquino government must immediately commit to increase and expand legal assistance and immigration consultation opportunities for our OFWs throughout the world. We have to provide meaningful institutional protection and legal representation for the workers who sustain our national economy, and who are constrained to work under unfamiliar foreign employment, criminal, and civil laws.
For Filipinos at home, the Aquino government has to commit more resources to enable our investigators to detect, and our prosecutors to competently and aggressively litigate, crimes under international humanitarian law, human rights law, and environmental laws. The legislature has already passed RA 9851 (the 2009 “Crimes Against International Humanitarian Law, Genocide, and other Crimes Against Humanity Act”), while the Supreme Court under Chief Justice Puno’s leadership has already promulgated the rules on habeas data and the writ of amparo while establishing specialized tribunals to try extrajudicial killings and enforced disappearances, as well as specific environmental courts. The Executive Branch has to complete the task and make sure that our law enforcement officers and prosecutors are well-trained to identify and implement international law norms, as well as to utilize the procedural remedies and institutional avenues now made available.
2. Commit to ongoing agency audit at the Executive Branch for international law compliance
Unlike the House or Senate Committees on Foreign Relations and their technical staff, government agencies under the Executive Branch thinly (if at all) conduct internal review of agency policies in light of international legal commitments in various conventions. The Aquino government must ensure that administrative agency actions, operational strategies, and decisions are fully consistent with Philippine treaty obligations. Pending reform or revision of the Revised Administrative Code towards more independent agency discretion in treaty implementation, the President must be able to monitor, coordinate, and supervise administrative agencies’ compliance with Philippine obligations. This can be accomplished by designating IL-compliance boards or offices within many critical government agencies that frequently engage our commitments under international law, such as in government procurement contracts (which usually have an international financing component), international investment contracts, trade and socio-economic policies. Many developing States have already commenced integrating international law compliance within public administrative networks, which can also help generate external deterrence against corruption.
3. Establish an ASEAN ‘Harmonization’ Board or Commission
Article 52(1) of the ASEAN Charter continued the validity of over forty years’ worth of treaties, instruments, and agreements signed by ASEAN Member States when ASEAN was still a regional cooperation. ASEAN’s transition into a discrete Charter-based organization spells many harmonization challenges. We have committed to give binding legal effect to ASEAN treaties, instruments, and agreements within our jurisdiction, but to date, our efforts at governmental implementation (either through direct executive action, administrative action, or legislative enactment) are sporadic. We can expect more ASEAN legislation in the near future from the evolving ASEAN institutions, making it urgent to harmonize domestic executive policies with this copious body of regional commitments in trade, investment, environment, transport, energy, communications, agriculture etc.
Long-term foreign policy, such as achieving a peaceful settlement of claims in Mindanao, ratifying the Rome Statute, territorial sovereignty claims, certainly require a comprehensive separate discussion. For the first 100 days, the new Aquino government must remember that voters in May 2010 have spoken in favor of a reinvigorated democracy and genuine social development. We cannot begin to realize this without the moral courage and conviction to stand by our commitments to the rule of law at home and abroad.
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The author is a law reform specialist at the UP Institute of International Legal Studies and a professorial lecturer at the UP College of Law. Her email address is diane.desierto@yale.edu.
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