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III.

THE AMENDMENT OF THE FAMILY CODE ALLOWING SAME SEX MARRIAGE IS


IN ACCORDANCE WITH INTERNATIONAL LAW

A. Pacta Sunt Servanda

Pacta sunt servanda is a fundamental maxim of international law that


requires the parties to keep their agreement in good faith. It bears pointing out that
the pacta sunt servanda rule has become part of the law of the land through the
incorporation clause found under Section 2, Article II of the 1987 Philippine
Constitution, which states that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all
nations."1

The time-honored international principle of pacta sunt servanda demands


the performance in good faith of treaty obligations on the part of the states that
enter into the agreement. Every treaty in force is binding upon the parties, and
obligations under the treaty must be performed by them in good faith. 2 More
importantly, treaties have the force and effect of law in this jurisdiction.3

B. International Covenant on Civil and Political Rights (ICCPR)

One of the treaties which the Philippines is a signatory is the International


Covenant on Civil and Political Rights (ICCPR). Said treaty is adopted by the
United Nations General Assembly on 16 December 1966, and in force from 23
March 1976. It commits its 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.

On 23 October 1986, the Philippines ratified the International Covenant on


Civil and Political Rights. As a signatory to the Covenant, the Philippines is
obligated under international law and the 1987 Constitution to protect the inherent
dignity and human rights of all its citizens.4

Principle of equality

The principle of equality requires that any formal relationship recognition


available under law to opposite-sex couples should also be available to same-sex
couples. This includes civil marriage.

1
Secretary of Justice v. Hon. Lantion, 379 Phil. 165, 212 (2000)
2
Vienna Convention on the Law on Treaties (1969), Art. 26.
3
Luna v. Court of Appeals, G.R. No. 100374-75, 27 November 1992, 216 SCRA 107, 111-112.
4
MVRS Publications, Inc v. Islamic Da'wah Council Of The Philippines, Inc., G.R. No. 135306, 28 January
2003
Equality is a key human rights principle. It is set out in article 26 of the
ICCPR, which states that all people are equal before the law and are entitled
without any discrimination to the equal protection of the law. Article 2 of the
ICCPR requires State Parties to ensure all individuals are to enjoy the rights set
out in the ICCPR without discrimination. Article 26 is broader than article 2(1)
because it is a stand-alone right which forbids discrimination in any law and in
any field regulated by public authorities, even if those laws do not relate to a right
specifically mentioned in the ICCPR.

The right to equality before the law guarantees equality with regard to the
enforcement of the law. The right to the equal protection of the law without
discrimination is directed at the legislature and requires State Parties to prohibit
discrimination and take action to protect against discrimination.

Article 26 of the ICCPR does not specifically mention sexual orientation or


sexuality in the prohibited grounds of discrimination. However, the phrase other
status has been interpreted to include sexual orientation. The United Nations
Human Rights Committee (Human Rights Committee) has emphasized the
obligation on all parties to the ICCPR to provide effective protection against
discrimination based on sexual orientation.

https://www.humanrights.gov.au/lesbian-gay-bisexual-trans-and-intersex-
equality-0

Interpretation of the right to marry in relation to its preamble

In interpreting the right to marry, and whether its scope could extend to
same-sex couples, it is important to take note of the preamble of the ICCPR and
the maxim of non-discrimination which is enunciated both as a stand-alone human
right and as part of the right to marry. The preamble provides that the purpose of
the ICCPR is to recognize the inherent dignity and ... the equal and inalienable
rights of all members of the human family.

https://sydney.edu.au/law/slr/slr_36/slr36_4/SLRv36n4GerberTaySifris.pdf

B. Universal Declaration Of Human Rights (UDHR)

The Universal Declaration of Human Rights (UDHR) is a declaration


adopted by the United Nations General Assembly on 10 December 1948 at the
Palais de Chaillot, Paris. The Declaration arose directly from the experience of the
Second World War and represents the first global expression of what many people
believe to be the rights to which all human beings are inherently entitled.5

The Right to Marriage

5 "The Universal Declaration of Human Rights". un.org.


Article XVI of the Universal Declaration of Human Rights (UDHR) states,
Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution

The right to marry is a protected right as may be met in the provisions of the
Universal Declaration of Human Rights6. This treaty is binding upon the Philippines
under the Constitution as provided in Section 2, Article II. This right, furthermore,
was enunciated in an American case, Loving v. Virginia which held:

(F)reedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men Marriage
is one of the basic civil rights of man, fundamental to our very existence and
survival7

It is settled that the right to marry is one of the fundamental rights of an


individual as provided under the Universal Declaration of Human Rights and
Convention for the Protection of Human Rights and Fundamental Freedom. And
on these foregoing provisions, nobody shall be deprived of this right as guaranteed
by no less than the Constitution.

Furthermore, since the UDHR guarantees all men and women the right to
marry, and does not explicitly provide that sexual orientation is an exception to the
right, states that do not allow two men or two women to marry are acting in contrast
to the Declarations language and intention.

Nondiscrimination

Article II of the UDHR states [e]veryone is entitled to all the rights and
freedoms set forth in this Declaration, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. In addition to arguably qualifying as both sex and
other opinion, sexual orientation is implicitly included among the factors listed in
the UDHR, because of the provisions intentions; Although the Universal
Declaration of Human Rights and the other principal human rights instruments
drafted by the United Nations do not explicitly mention sexual orientation or same-
sex marriage, they have created a comprehensive body of human rights law that
protects all people (Green, 2010).

6 G.A. res. 217A (III), U.N. Doc A/810, 71, Art. 16 (1) (1948): Men and women of full age, without
any limitation due to race, nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriages, during marriage and at its dissolution.
7 Loving v. Virginia, 388 U.S. 1, 12 (1967).

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