Mandatory ROTC, ibasura!

 When the Philippines signed the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, it undertook to comply with the following under Article 2 thereof: 


 1. The minimum age for voluntary recruitment into the Armed Forces of the Philippines is 18 years, ๐—ฒ๐˜…๐—ฐ๐—ฒ๐—ฝ๐˜ ๐—ณ๐—ผ๐—ฟ ๐˜๐—ฟ๐—ฎ๐—ถ๐—ป๐—ถ๐—ป๐—ด ๐—ฝ๐˜‚๐—ฟ๐—ฝ๐—ผ๐˜€๐—ฒ๐˜€ whose duration shall have the students/cadets/trainees attain the majority age at the completion date. (emphasis supplied) 


It is submitted that this "declaration" insofar as it purports to clarify Article 2 is in reality a reservation of the law. Note that the word used, "except," basically admits that ROTC graduates, as part of the Reserve Force under RA 7077, ๐—ฎ๐—ฟ๐—ฒ in fact part of the armed forces as mentioned in Convention. The ICJ (in I.C.J., Advisory Opinion, 1951 I.C.J. 15) succintly put it in this way: "in a multilateral treaty, as long as the reservation does not defeat the purpose of the treaty, a reservation is permitted." 


Thus, the Philippines' reservation, defeating as it does the purpose of the Convention, which is to prevent the forced drafting of children ito the armed forces, is invalid for defeating the purpose of the treaty. It cannot be argued that because the reservation provides that the ROTC members have already reached the age of majority by the time of their completion of the program means that recruitment in reality started at the age of majority, since it is in fact the ๐—ฎ๐—ฐ๐˜ of recruitment, consummated at the time that the minor is inducted into the ROTC (and not during their completion of it), which constitutes "compulsory recruitment" under the Protocol. 


But what about the power of the Congress to overturn this treaty if it passes the ROTC law? 

In Gonzales v. Hechanova,  it was stated that "our Constitution authorizes the nullification of a treaty (...) when it runs counter to an act of Congress.” 


In Ichong v. Hernandez, the reason for this rule was stated: "the treaty is always subject to qualification or amendment by a subsequent law and the same may never curtail or restrict the police power of the state which is inherent and could not be disposed through a treaty." 


If Congress passes an ROTC law, being incompatible with the Optional Protocol, the former may be given effect as opposed to the latter applying the "dualist" perspective of international law (as upheld by the Supreme Court in the above-mentioned cases): "in case of conflict, court would apply the national law or at least that is for the national system to decide which rule should be followed." 


However, the better argument, and one that gives effect to the Optional Protocol, is as follows: 


One of the schools of thought  is the statement in the The Nereide (13 U.S. 388): "The Court is bound by the law of nations, which is part of the law of the land." Under Art. 26 of the Vienna Convention on the Law of Treaties (VCLT), which the Philippines is a signatory to, mind: "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." Art. II, Sec. 2 of our Constitution also states that: "The Philippines (...) adopts the generally accepted principles of international law as part of the law of the land." 


Moreover, an international custom becomes binding (and is superior to a treaty) if it is a a practice which has grown up between states and has come to be accepted as binding by the mere fact of persistent usage over a long period of time. (Bayan Muna v. Romulo) However, (I admit that) it remains to be threshed out in the Courts whether the Optional Protocol has received the status of an international custom. 


Of course, if it goes to court, the Supreme Court may decide to instead harmonize the two laws (as it did in Co Kim Chan v Valdez Tan Keh) and raise the minimum mandatory ROTC age to 18.


Still, on policy grounds, mandatory ROTC is burdensome, worthless, and teaches only the false nationalism peddled by the reactionary armed forces and the imperialists. Rep. Brosas of GABRIELA partylists has it completely right - how can we "instill nationalism" when every day, we Filipinos see an AFP servile to the interests of the United States through the VFA and EDCA? 


Context and other links: 

https://www.facebook.com/elepsPH/posts/pfbid021bqS27pRKs8ihCo8R6L96SSP6AcQr8h2iFgedu41Z1eaqD2w5uQxq2uPGWqZa2Qvl 

https://www.youtube.com/watch?v=TnKCJuyuLoU 

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