Riding the Cappelletti Waves: The Philippine Supreme Court and the Sources of International Law

Abstract Mauro Cappelletti’s waves of domestic and transnational constitutionalism have reached Asia where courts exercise constitutional review and engage with international law in the process. Institutional and sociological legal scholars celebrate this as the inexorable global constitutionalization of international law through the liberal structures of judicial review and dialogue. A previous article cast doubt on the inevitability of global constitutionalization in view of material inconsistencies in interactions with international law by Asian courts, even those with rule of law and liberal democratic traditions. The present article on the Philippine Supreme Court sheds light on an underlying cause: arbitrary and contradictory selection and application of secondary rules for identifying international law by its source. The consequent degradation of international law and delegitimization of judicial engagement with it are the makings of the third wave of judicial review that Doreen Lustig and Joseph Weiler warned will reverse the gains of transnational constitutionalism.