Is the Philippines an outlaw nation? According to one expert that would be the case if the Philippines decided to reinstate the death penalty.
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| https://www.philstar.com/headlines/2022/08/23/2204575/lawmaker-no-stopping-death-penalty-revival-even-if-philippines-barred-doing-so |
A lawmaker is once again pushing for the revival of death penalty even if the country is barred by an international agreement from reintroducing capital punishment.
The Philippines is a party to the Second Optional Protocol to the International Covenant on Civil and Political Rights which explicitly prohibits state parties from carrying out executions within their jurisdictions.
This, however, is not deterring lawmakers like Rep. Robert Ace Barbers (Surigao del Norte) from pushing for the reimposition of the death penalty for heinous crimes, with him saying that the will of the majority trumps any mandate imposed by international organizations.
“If there is a strong sentiment that the Philippines would want a restoration of death penalty for the capital crimes or the heinous crimes committed, then no international organization can stop us from implementing such,” Barbers said Tuesday in a news conference.
He added that he will stand by the democratic process and whatever the majority approves.
International law expert William Schabas said in a 2019 speech that reviving death penalty would mean that the Philippines will no longer be able to enter future international treaties as it would earn a global reputation as a country unable to abide by its word.
The last time that the Philippines exited an international agreement was when former President Rodrigo Duterte withdrew the country from the Rome Statute which established the International Criminal Court after its prosecutor initiated a preliminary examination into the alleged crimes against humanity that occurred during the course of the “drug war.”
But unlike the Rome Statute, the ICCPR and its Second Optional Protocol do not have withdrawal clauses, effectively binding the Philippines not to carry out executions permanently.
If the Philippines goes ahead with its death penalty measure, it would be the first country after North Korea to openly challenge a global treaty and would be known worldwide as an international outlaw, Schabas said.
Because the Philippines is a party to the Second Optional Protocol to the International Covenant on Civil and Political Rights the Philippines is prohibited from carrying out the death penalty.
What is the International Covenant on Civil and Political Rights?
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits states parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. It was adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966 and entered into force 23 March 1976 after its thirty-fifth ratification or accession. As of June 2022, the Covenant has 173 parties and six more signatories without ratification, most notably the People's Republic of China and Cuba; North Korea is the only state that has tried to withdraw.
https://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights
The Philippines signed the treaty in 1966, it was ratified in 1986, and finally entered into force in 1987.
The Second Optional Protocol is an optional subsidiary agreement of the ICCPR.
The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, is a subsidiary agreement to the International Covenant on Civil and Political Rights. It was created on 15 December 1989 and entered into force on 11 July 1991. As of April 2022, the Optional Protocol has 90 state parties. The most recent country to ratify was Kazakhstan, on 24 March 2022.
The Optional Protocol commits its members to the abolition of the death penalty within their borders, though Article 2.1 allows parties to make a reservation allowing execution "in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime" (Brazil, Chile, El Salvador). Cyprus, Malta and Spain initially made such reservations, and subsequently withdrew them. Azerbaijan and Greece still retain this reservation on their implementation of the protocol, despite both having banned the death penalty in all circumstances. (Greece has also ratified Protocol no.13 of the European Convention on Human Rights, which abolishes capital punishment for all crimes).
The Philippines signed this agreement in 2006 and it was ratified in 2007.
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| https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4 |
The thing about this agreement, which was optional, is that there is no mechanism for withdrawal. Article 6 of this treaty says the following:
1. The provisions of the present Protocol shall apply as additional provisions to the Covenant.
2. Without prejudice to the possibility of a reservation under article 2 of the present Protocol, the right guaranteed in article 1, paragraph 1, of the present Protocol shall not be subject to any derogation under article 4 of the Covenant.
According to the Commission on Human Rights that means there is no way out of this agreement.
If the Philippines insists in withdrawing from the Second Optional Protocol, the VCLT will be effectuated and the State will confer on each member of the international community rights erga omnes that is towards all other States. It will face a similar situation as that of North Korea, in which States did not consent to the latter’s withdrawal. Even if the Philippines can theoretically withdraw despite the absence of an exit, it still is accountable to the ICCPR, given that the death penalty is a form of torture. Simply put, the Philippines will violate international law and its own domestic law if it wishes to denounce or attempt to withdraw from ICCPR and the Second Optional Protocol to reinstate death penalty.
The ramification of reintroducing capital punishment in the country, and the relevant scheme of the State to reintroduce it despite its international commitments will hurt the whole State community. The Commission and Dr. Ward argue that the reintroduction of capital punishment will considerably impact the standing of the Philippines in the international community, its work within the United Nations (UN), and its economic relations with trade partners,
The reintroduction of the death penalty in any form in the Philippines will expose the Philippines to international ridicule and criticism as it breaches numerous rules of international law, including rules that it expressly and freely accepted in the free exercise of its sovereignty. Breach of international law by the Philippines in this context will undermine treaty commitments entered into by the Philippines. It will no longer be a respected member of the community of States.
Not only is there no exit clause but the Philippines did not raise the issue.
Like North Korea, the Philippines is bound by the Covenant when it ratified the treaty on 23 October 1986. It did not make any reservations against any provisions of the Covenant, including the no exit clause and even recognized the competence of the Human Rights Committee,
The Philippine Government, in accordance with article 41 of the said Covenant, recognizes the competence of the Human Rights Committee set up in the aforesaid Covenant, to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant.
In the same vein, the Philippines did not make any reservations when it ratified the Second Optional Protocol on 27 November 2007, and has since then supported and co-sponsored UN General Assembly resolutions on moratorium on the use of the death penalty.
The conclusion should be rather evident. The Philippines entered into a treaty with no exist clause, they raised no objections about the lack of such a clause, therefore this treaty is binding. To exit it all on their own by reimposing the death penalty would expose the Philippines to ridicule and the nation would no longer be a respected member of the international community because such an act would show the whole world that the Philippines does not respect international treaties. The Philippines would be no different from North Korea who withdrew from this treaty despite there being no exit clause.
What then becomes of the Hague Ruling? It would rightly be tossed away as just a piece of paper and the Philippines would have no legal claim to the WPS. Why should that ruling be respected if the Philippines cannot respect the treaty abolishing the death penalty?
These kind of issues seem to be beyond the purview of Filipino legislators seeking to reimpose the death penalty. They forget that the Philippines, although a sovereign nation, is a part of the international community and has committed itself to following the rules of that order like it or not.
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