Direct Effect and a Post-Colonial Constitutional Prerogative against ‘Cheap International Law’

Posting here the concluding section of a draft research paper I presented this late January at the ASEAN Law Academy of the National University of Singapore Centre for International Law (please note that given the tentative and unfinished nature of the paper, I am posting this merely for discussion purposes. Nothing in this post may be referenced, cited, or quoted without my permission):

Misunderstood, misinterpreted, misapplied, international law has become a sort of juridical panacea, a universal thesaurus, always at hand for any solution that can be desired in any ticklish litigation. It is even recognized as endowed with aseity.

J. Perfecto, dissenting opinion, Tubb v Reiss

In the 2021 case of Pangilinan v Cayetano, the Philippines Supreme Court expressly recognized for the first time the distinction between objective international law and the Philippine practice of international law and the political function of the Courts when dealing with international legal questions. Pangilinan, a constitutional challenge against President Rodrigo Duterte’s decision to unilaterally rescind Philippine membership in the Rome Statute of the International Criminal Court, affirmed the plenary power of the President to enter into or withdraw from a treaty or international agreement. But in arriving at such a conclusion, it claimed to have done so by employing a view from within Philippine jurisdiction. Questions of consistent application notwithstanding, it so held:

This Court is not an international court. It may only rule on the effect of international law on the domestic sphere. What is within its purview is not the effectivity of laws among states, but the effect of international law on the Constitution and our municipal laws.

Months after these words were written, the Supreme Court handed down a ruling on unprecedented 37 constitutional suits lodged against the new Philippine Anti-Terror Act (ATA) of 2020, Republic Act 11479.

The Philippines’ Kadi Moment?

Relevant to this paper are questions raised by the petitions against the establishment by the law of an Anti-Terrorism Council (ATC). Article 25 of the ATA provided that:

Pursuant to our obligations under United Nations Security Council Resolution (UNSCR) No. 1373, the ATC shall automatically adopt the United Nations Security Council Consolidated List of designated individuals, group of persons, organizations, or associations designated and/or identified as a terrorist, one who finances terrorism, or a terrorist organization or group.

Request for designations by other jurisdictions or supranational jurisdictions may be adopted by the ATC after determination that the proposed designee meets the criteria for designation of UNSCR No. 1373.

The second paragraph of article 25 was but one of only two provisions – of so many put to constitutional challenge by the petitions –in the law that was struck down by the Philippine Supreme Court as unconstitutional, according to media advisory issued by its Public Information Office on December 9 last year.

No further information was released by the Supreme Court on the grounds for the invalidation of the provisions, and the full text of the decision on the consolidated petitions is yet unavailable, until today. Until it is made public, we will not know exactly how the Supreme Court took to heart its own advice in Pangilinan about its role as a domestic court weighing constitutional values against international legal norms.

Elsewhere, the Kadi case has highlighted the tensions that arise between the exercise by the Security Council of its Chapter VII powers and (European) constitutional values, especially in reference to the question of terrorism. Indeed, since the targeted sanctions regime was established by the UN Security Council against terrorism and its supporters and agents, many concerns have been raised about its ‘due process deficiencies.’ And this is despite reforms instituted by the UN in response to the critics, including the establishment of an Office of the Ombudsperson.

Perhaps, the current proceeding against the ATA is not quite the Philippines’ own Kadi moment, as none of the petitions involve alleged actual violations of due process committed pursuant to the implementation of the challenged law.

ASEAN Law’s Rise and Challenge

From the point of view of the Philippine practice of international law, three points may be made on the 11th and 12th modes of direct effect. Firstly, these ASEAN documents exhibiting the 12th mode of direct effect draw their reason for being under earlier ASEAN agreements, either directly drawing from ASEAN treaties or agreements that have undergone the two-step presidential ratification-Senate concurrence procedure, or from documents that came to be by mere presidential ratification and are themselves rooted in other earlier documents.

As in the case of ASEAN documents exhibiting the 11th mode of direct effect, this class of ASEAN agreements are akin to what are considered as executive agreements in Philippine law. Recall that executive agreements in Philippine law have the same binding effect as treaties that require the dualist presidential ratification and senate concurrence have, except that, by virtue of their being drawn from treaties, they no longer require the latter legislative procedure for them to be binding as Philippine law; thus, while they are based on what are essentially dualist devices, they assume quasi-monist tendencies. As such, they could lead to the birth of other quasi-monist agreements that become binding on the Philippines by mere signature of a Philippine representative.

Secondly, in Saguisag v Ochoa, the Philippine Supreme Court, while upholding the status of executive agreements as of the same binding character as treaties, nevertheless held that the former is inferior to the latter.

Executive agreements as such must proceed from an express or implied authorization under the Constitution, statutes, or treaties and do not create new international obligations, otherwise they are considered void from the beginning. Indeed, Saguisag said that treaties are superior to executive agreements: in the case of the former, where legislative imprimatur is required, it is treated on the same status as a statute, so that in case of a conflict, the later law takes precedence over the earlier law, under the principle of lex posterior derogat priori.

However, both treaty and executive agreement ‘are nevertheless subject to the supremacy of the Constitution.’ But more recently in Pangilinan v Cayetano, the Supreme Court reversed the automatic lex posterior rule, holding that statutes, given the process they undergo, are preeminent over international agreements. This stems from a three-part rule the Supreme Court laid down to map out the metes and bounds of the President’s treaty-making powers.

It held thus:

Having passed scrutiny by hundreds of the people’s elected representatives in two separate chambers which are committed-by constitutional dictum-to adopting legislation, statutes enacted by Congress necessarily carry greater democratic weight than an agreement negotiated by a single person. This is true, even if that person is the chief executive who acts with the aid of unelected subalterns, This nuancing between treaties and international agreements, on one hand, and statutes on the other, is an imperative borne by the Philippine’ basic democratic and republican nature that the sovereignty that resides in the people is exercised through elected representatives.

According to Pangilinan, the preeminence of statute over treaty is the basis of the (first) rule that ‘the President enjoys some leeway in withdrawing from agreements which he or she determines to be contrary to the Constitution or statutes.’ Such leeway must be founded on the constitutional doctrine that the Constitution is superior to statutes and international agreements.

Following this, the second rule holds that the President may not unilaterally withdraw from a treaty or international agreement that was entered into pursuant to ‘congressional imprimatur.’ This applies where Congress has expressly authorized the President to enter into a treaty with conditions or limitations as to negotiating prerogatives.’ Thus:

When a treaty was entered into upon Congress’s express will, the president may not unilaterally abrogate that treaty. In such an instance, the president who signed the treaty simply implemented the law enacted by Congress. While the president performed_- his or her function as primary architect of international policy, it was in keeping with a statute. The president had no sole authority, and the treaty negotiations were premised not only upon. his or her own diplomatic powers, but on the specific investiture made by Congress. This means that the president negotiated not entirely out of his or her own volition, but with the express mandate of Congress, and more important, within the parameters that Congress has set.

The third rule provides that ‘the President cannot unilaterally withdraw from international agreements where the Senate concurred and expressly declared that any withdrawal must also be made with its concurrence.’ This happens where the Senate concurred with a treaty or international agreement but expressly indicated ‘a condition that withdrawal from it must likewise be with its concurrence.’ Such condition may be ·embodied in the same resolution in which it expressed its concurrence or in a subsequent resolution.’

So here is the objective international law versus Philippine practice of international law at work: from the point of view of international law, whether the Philippines became a party to an ASEAN document under the Treaty Clause of the 1987 Constitution or via another mode does not matter, for as long as the procedure required by the document itself was followed by the Philippines.

Thus, there is an important distinction that must be made between ASEAN documents that are in the form of treaties and those that are analogous to executive agreements. The former class is superior to the latter, but both do not rise to the same status as the constitution. Thirdly, how do these ASEAN documents exhibiting the 12th mode of direct effect exactly become binding on the Philippines, given that they were signed only by the Philippine Trade and Industry Secretary (at least, in the examples considered)? The answer is the doctrine of political agency, otherwise known as alter ego doctrine in Philippine constitutional law. As explained in the landmark 1939 Philippine case of Villena v Secretary of Interior:

‘[E]ach head of a department is, and must be, the President’s alter ego in the matters of that department where the President is required by law to exercise authority.’ Secretaries of departments, of course, exercise certain powers under the law but the law cannot impair or in any way affect the constitutional power of control and direction of the President. As a matter of executive policy, they may be granted departmental autonomy as to certain matters but this is by mere concession of the executive, in the absence of valid legislation in the particular field. If the President, then, is the authority in the Executive Department, he assumes the corresponding responsibility. The head of a department is a man of his confidence; he controls and directs his acts; he appoints him and can remove him at pleasure; he is the executive, not any of his secretaries. It is therefore logical that he, the President, should be answerable for the acts of administration of the entire Executive Department before his own conscience no less than before that undefined power of public opinion which, in the language of Daniel Webster, is the last repository of popular government. These are the necessary corollaries of the American presidential type of government, and if there is any defect, it is attributable to the system itself. We cannot modify the system unless we modify the Constitution, and we cannot modify the Constitution by any subtle process of judicial interpretation or constitution.

In other words, under this doctrine, the signature of the Philippine representative inscribed in the documents are the President’s, analogous to presidential ratification, unless the President subsequently expressly withdraws the authority given to the former to represent the Philippines in the negotiations and signing of the document in question.

By virtue of the President’s silence over the signature of the Philippine representative, the President is deemed to have ratified it (has the effect of a presidential ratification) under the doctrine of qualified political agency.

The rise of ASEAN law and the Philippines’ commitments to the regional body raises questions of public accountability over how the Executive Department discharges its foreign policy prerogatives. Once again, Pangilinan’s claim presents itself over the propriety of granting direct effect to ASEAN legal instruments by domestic courts.

Wanted: A Postcolonial Constitutional Prudence against ‘Cheap International Law’

J. Perfecto’s dissent quoted in part as the epitaph of this concluding section of the essay provides Philippine academics, lawyers, and judges with much food for thought as regards the role courts must play when faced with an international legal question.

Tubb v Greiss involved two American civilian employees of a US Armed Forces unit based in the Philippines accused of pilfering goods from a US Army depot in the City of Manila. They were arrested by US military personnel and put under general court martial proceedings. They challenged their arrest in a habeas corpus petition, claiming that the US military did not have jurisdiction to try them for violations of the Articles of War, given that they were civilians and not part of the American uniformed services.

Denying the petition, the majority opinion held for the US Army, invoking international law as having provided that ‘a foreign army allowed to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place.’

J. Perfecto’s vigorous dissent pointed out that all the international legal authorities cited by the majority opinion are in fact in the two petitioner’s favor, because these authorities were clear that they only applied to soldiers and not to civilians. But more importantly, he argued for a hermeneutic in favor of human rights as recognized in both the Philippine constitution, and even the UN Charter itself.

J. Perfecto said that any erroneous reading of international law justifying the ‘trampling down of the fundamental human rights‘ of petitioners, which ‘are specifically guaranteed in our Constitution and in the constitutions of all democracies and enlightened countries must have been corrected once and for all since June 25, 1945, when the Charter of the United Nations was adopted in San Francisco.’

He noted that the UN Charter itself had pledged, firstly, ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,’ secondly, ‘ to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained,‘ and thirdly, ‘to promote social progress and better standards of life in larger freedom.’ Thus, he wrote:

Anybody will notice that ‘fundamental human rights’ and ‘dignity and worth of the human person’ form part of the supreme concern of the United Nations. Neither the Philippines nor the United States of America can honorably ignore the solemn commitments entered into by them as members of the United Nations. All the agencies of their respective governments, including tribunals and armies, are duty bound to respect, obey, and make effective those commitments.

The preamble of the charter specifically provides, ‘that armed forces shall not be used, save in common interest,’ the latter comprehending the basic purposes of the organization of the United Nations, such as “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.’

There is absolutely no reason why we should be afraid, reluctant, or hesitant in performing our duty to grant petitioners the legal relief to their illegal and unconstitutional deprivation of personal liberty, because our action may displease the army or the government of the United States of America, or because the American army stationed in Manila, may disregard our decision.

He also bristled at what he perceived to be a clear attempt by the American brass who appeared at the court hearings for the petition to intimidate the justices of the Supreme Court:

At the hearing of this case, which took place on March 7, 1947, Atty. Justiniano S. Montano appeared and argued for petitioners and Atty. J. A. Wolfson, for respondent. The latter, accompanied by respondent and two-star generals of the United States Army, garbed in their military uniform, made the statement that this case has been communicated to Washington and that the United States Government is interested in its result. The intimidation implied in the statement compelled counsel for petitioners to make an impassioned protest against the uncalled-for statement and one of the Justices made the statement to the effect that this Court shall not allow any outsider to influence it in deciding this case.

J. Perfecto lamented that no mention has at all made in the Supreme Court’s decision of the incident, and this was ‘notwithstanding the fact that it involves a clear attempt to jeopardize the authority and dignity of this Court.’ But the root of the juridical problem presented by the majority opinion in Tubb, according to J. Perfecto, is ‘cheap international law’ – one that ‘has nowadays become a fashion in judicial and legal circles.’ Thus:

Under the spell of international law, the sense of legal values has suffered and is enduring a moral disturbance, blurring judicial vision. Swayed by the transient infatuation of the new legal fad, the majority allow themselves to be blindfolded by the fulgor of the newly found juridical shibboleth to ignore petitioner’s clamors for the vindication of their constitutional rights, as guaranteed by fundamental law, condemning their earnest prayers for relief to the futility of ‘vox clamantis in diserto.’Such is the glamor of the resounding international law that it was able to drown and obliterate completely the humanitarian and lofty tenets stereotyped in the Constitution by the will of the sovereign people.

For him, this cheap international law – this ‘awry judicial attitude’ –to which aseity has been ascribed stems from a misinterpretation of the Incorporation Clause of the constitution. This clause, according to J. Perfecto, has been erroneously understood to mean that international law has been made part of the constitution as ‘superior to the primary principles and fundamental guarantees expressly enunciated therein.’

Thus, to correct this error, he proposed that the Supreme Court recall the following ‘basic ideas’:

1. That the declaration that the Philippines ‘adopts the generally accepted principles of international law as part of the law of the Nation’ is an enunciation of a general national policy but never intended to lay down specific principles, provisions, or rules superior or even equal to the specific mandates and guarantees in the fundamental law.
2. That ‘the generally accepted principles of international law’ made part of our statute books are not placed in a higher legal hierarchy than any other law that Congress may enact.
3. That said ‘generally accepted principles of international law’ are not fixed and unchangeable but, on the contrary, may undergo development and amplification, amendment and repeal, that is, the same biological rules that govern all laws, including the fundamental one.
4. That the general statement made by the Constitution implies that the principles of international law which should be considered as part of the law of the nation are subject to determination by the agencies of our government, including courts of justice, and once determined they may be amended, enlarged or repealed, exactly as any act of Congress.
5. That those principles are to be gathered from many sources — treaties and conventions, court decisions, laws enacted by legislatures, treatises, magazine articles, historical facts and others — and the majority of them must be sifted from conflicting opinions coming from said sources.
6. That the provisions of the Constitution should always be held supreme and must always prevail over any contrary law without exempting principles of international law, no matter how generally or universally they may be accepted.

The limitations of this paper prevent me from making a full examination of these guidelines that J. Perfecto proposed that the Supreme Court observe when dealing with international legal questions.

But in brief, I offer the following concluding remarks: firstly, these basic ideas cohere with domestic courts unafraid to be a sovereign rule-giver rather than just a rule-taker in international law. Secondly, such rule-giving is understood to spring from a careful (and not a mechanical) examination of a wide array of sources and the Philippines’ best constitutional traditions. Finally, such rule-giving does not limit itself to court decisions but comes from a much broader embrace of state practice: by all agencies of government. This therefore requires of agencies of government charged with implementing international commitments to take their task seriously as one of constitutional importance.

The 2016 South China Sea Arbitral Award Five Years Later

I’m posting here links to a series of articles we have published in the last four months in the opinion pages of the Philippine Daily Inquirer (mostly) in the run up to the 5th anniversary of the 2016 South China Sea Arbitral Award.

This series really started with a conversation I had with a senior colleague, Dr. Melissa Loja, on what we see as a sorry state of public discourse on what the Arbitral Award really meant to national interest.


We thought the dominant narrative has actually failed to bring to the public attention the true import of the Arbitral Award for us. We thus sought to present an alternative analysis of the Arbitral Award. Thus we set out to write a series of short essays tackling key sections of the Arbitral Award and what we believe they meant, in the hope that the essays would open up new vistas on the question and re-direct the monologue we have been hearing in the last five years to a critical public discussion.

Yet I would say this series was really presaged by an earlier piece, written with Professor Prabhakar Singh of the O.P. Jindal Global Law School in India, that was published by the Inquirer in January this year:

Prabhakar Singh and Romel Bagares, ‘China between a Civilization and the State,’ Inquirer January 26, 2021.

I stress that we wrote on the fly, in reaction to the unfolding events. As we went on, we arrived at the conclusion that what we sorely need to make of the most of the gains won by the Philippines in the Arbitral Award is a new baselines law that would name and identify each of the rocks/high tide elevations in the West Philippine Sea we claim as ours, and mark out their baselines for measuring their entitlements to a Territorial Sea and, where appropriate, their Contiguous Zone.

This new series begins with Dr. Loja’s piece on the Julian Felipe Reef question.

1. The Arbitral Award did not declare that the waters of Julian Felipe Reef (JFR) are part of the Philippines’ exclusive economic zone (EEZ). That is not necessarily a bad thing.

Melissa Loja, ‘The SCS Arbitral Award and Julian Felipe Reef,’ Inquirer, April 21, 2021;

2. The elephant in the room in popular discourse about maritime entitlements won by the Philippines before the South China Sea (SCS) Arbitral Tribunal is the status of the Kalayaan Island Group (KIG).

Melissa Loja and Romel Bagares, ‘Should We Now Slay the Elephant in the Room’, Inquirer, May 2, 2021;

3. Presidential spokesperson Harry Roque’s recent statements over Julian Felipe Reef (JFR) evokes an urgent need to take stock of what we won and lost before the South China Sea (SCS) Arbitral Tribunal.

Melissa Loja and Romel Bagares, ‘Arbitral Award: What We Won and Lost’, Inquirer, May 19, 2021;

4. We borrow a famous question asked in 1902 by Vladimir Ilyich Ulyanov in a work of classic Marxist polemics to consider how to make the most out of the gains we won in our South China Sea (SCS) arbitral proceedings against China.

Melissa Loja and Romel Bagares, ‘Ph Arbitral Win: What is To Be Done,’Inquirer, May 29, 2021’;

5. Former chief justice Artemio Panganiban proposes that the justice secretary and the foreign affairs secretary form a team of “international jurisconsults” to strategize how to bring China to the International Court of Justice (ICJ) for the adjudication of our territorial and maritime claims in the West Philippine Sea (WPS).

Francis H. Jardeleza, Melissa Loja, and Romel Bagares, ‘All Options on the Table,’ Inquirer, June 22, 2001;

6. In 1951, the United States convened the San Francisco Peace Conference to discuss the fate of the Spratlys Islands. The Philippines, led by Carlos P. Romulo, took part in the conference but his delegation did not register a claim, unlike Vietnam or even China, and notwithstanding the exclusion of the Chinese from the conference.

Melissa Loja and Romel Bagares, ‘The Great Re-Set in the Spratlys Dispute,’ Inquirer, July 12, 2021, and

7. The 501-page 2016 South China Sea (SCS) Arbitral Award does not mention the Murillo Map at all. There are two reasons for this.

Melissa Loja and Romel Bagares, ‘Framing the Murillo Map Properly’ Inquirer,July 24, 2021.

8. Without naming names, University of the Philippines College of Law Associate Professor Jay Batongbacal recently posted insinuations on Facebook that an alternative analysis on the best way to move the discussion on Philippine interests in the West Philippine Sea boosts “Chinese misinformation.”

Francis H. Jardeleza, Melissa Loja, and Romel Bagares, ‘Against Legal Scholarship by Labeling‘, Philippine Star, July 29, 2021.

9. The West Philippine Sea (WPS) baselines law that we propose was initially opposed by Justice Antonio T. Carpio on the grounds that the rising seas will soon take over the disputed features in the WPS and render the proposed law useless, and that a presidential proclamation suffices. (added August 10, 2021, with further edits on the introductory paragraphs of this blogpost. This was written and submitted just days after a July 21 column by Justice Carpio. This also suffices as a response to a subsequent commentary by J. Carpio published on July 29. )

Francis H. Jardeleza, Melissa Loja, and Romel Bagares, ‘PH Realities Beyond the Arbitral Award,‘ Inquirer, August 10, 2021.

10. Like an urgent message from Middle-earth’s Rivendell to the Fellowship of the Ring, a note verbale (NV) concerning the Spratlys dispute issued unexpectedly out of New Zealand’s (NZ) Permanent Mission to the United Nations on Aug. 3.

Francis H. Jardeleza, Melissa Loja, and Romel Bagares, ‘Middle-earth’s Missive on the Spratlys,’ Inquirer, August 27, 2021. (updated August 28, 2021)

11. Recently, three Chinese coast guard vessels blocked two Philippine Navy (PN) ships en route to resupply soldiers stationed on BRP Sierra Madre, a state vessel beached on Ayungin Shoal. In the 2016 South China Sea arbitration, the Philippines complained about similar activities by China in the shoal. The Arbitral Tribunal held that the shoal is a low-tide elevation (LTE); as such, it is not the territory of any state (paragraph 309), but it accrues to the Philippines as part of the latter’s exclusive economic zone (paragraphs 646-647). Unfortunately, the tribunal characterized the activities of China in the shoal as military in nature and, therefore, excluded from its jurisdiction by the United Nations Convention on the Law of the Sea (Unclos) (paragraph 1161). What then is our legal recourse against continuing Chinese military activities in the shoal? May we sue China in the International Court of Justice (ICJ)?

Melissa Loja and Romel Bagares, ‘Suing China for peace, yet again, Inquirer, December 5, 2021.

12. The House of Representatives recently approved the maritime zones bill on third reading. It is a necessary and important proposed legislation for it embeds the Arbitral Award in the 2016 South China Sea (SCS) Arbitration in the Philippine domestic legal system. Section 10 declares that the Philippines shall exercise its sovereign rights in the exclusive economic zone (EEZ) and continental shelf (CS), including in the West Philippines Sea (WPS), in accordance with the Arbitral Award. No government may brush off the award. Courts may now interpret and apply it.
However, the bill deliberately left out unpalatable parts of the Arbitral Award.

Melissa Loja and Romel Bagares, ‘Warts and All,’ Inquirer, December 21, 2021 (updated on the same date)

The long march through the halls of a “democratic” legislature?

Samuel Moyn has a new thought-provoking (if counter-intuitive – at least for liberal ears) piece on the “juristocracy” that the New Deal Left had built and is now apparently turning against itself.

His point is that liberals should forget it, and instead draw the battle lines away from courts into democratic politics itself (perhaps, his shorthand for control of the legislature?)

Of course, the underlying theory here is of the legislature as the representative of the people, it being an assembly of elected officials.

So he writes:

In the academy, we need less preparation for constitutional politics and more for democratic engagement. Finishing schools for elites whose graduates, in the New Deal, once set themselves the goal of serving the people’s legislature have become anterooms to the judiciary, whispering in the ear of a judge as a clerk the highest initial reward, and ascent to the Supreme Court (now totally controlled by justices who studied at either Harvard or Yale law schools) the ultimate prize.

More training for democratic practice among citizens would also counter the prestige of “constitutional theory” among scholars. That activity rose over the timespan of progressive defeat under juristocracy, but spiked in the 1980s and 1990s, as kind of a cheerleading section intended to buck up liberal spirits in an age of slow-motion political collapse. To read its main works is to find a lot of longing for a lost past or yearning for an unavailable future—pining for Earl Warren’s Court, or the New Deal, or a legendary period of “republican” virtue, syncopated with vague hopes for a future when friendly judges will rule.

This is to a large degree, a recognition that court battles are always ideological battles, fueled by differing visions of the common good, of the ideal social and political ordering:

We will always have judges. Any interpretation of law is a form of rule, and there is no way—contrary to what many of the founders believed—of disentangling “judgment” and “will.” It is for that reason that democrats from Jeremy Bentham (or even Thomas Hobbes before him) through our time have attacked interpretations of judicial power that conceal the ideological choices that saying “what the law is” inevitably involves. No wonder, then, that democratic theorists have long insisted on restraining judges, even while acknowledging that their activity necessarily involves some interpretive freedom to use and abuse. There are disputes to settle under rules, laws to apply to new fact patterns, and overreaching executives to contain.

And what is very telling in Moyn’s account is the liberal’s un-inhibited expression of law as religion, with its own pantheon of saints, and its own set of creeds, its avowals of secularity notwithstanding:

Lately the enthusiasm for judicial empowerment has taken the form of unseemly heroine worship, with Ruth Bader Ginsburg and Sonia Sotomayor elevated to the status of secular saints. It is a kind of juristocratic feminism among legal elites to match the reigning neoliberal one among the professional class in general.
But instead of merely reviling judges on the other side of the ideological divide while worshiping one’s own, in a pantheon of angels and demons, any serious democrat should reject the religion of the judiciary itself. Other liberals trying to get through a dark night are clinging to the hope that, cajoled by strategic genius Elena Kagan, John Roberts might tack to the center in a few crucial cases. The truth is that the prospect of a “centrist” coalition is more of an anxious fantasy than a political opportunity. Even if it works, it is a distinct improvement on full-scale reaction at the Supreme Court in the same way that a chronic disease is better than a terminal diagnosis.”

It is in democratic politics where the ideological battles are best fought, where Democrats must seek to reclaim the allegiance of the hearts and minds of the broad masses of the American electorate. You convince them that the Democrat’s idea of political ordering is the best possible outcome there could be, and before long, even the Court will take the hint and will be led by it.

The problem really is that set of first principles from which judges divine the meaning of the Constitution — these principles direct the court’s understanding of such foundational concepts as due process, the common good, and even public morality.

The fragmentation of modern life inevitably opens judicial processes to internecine if unending warfare based on conflicting views of ultimate commitments.

But just what is a democratic politics via the legislature that Samuel Moyn argues for if it only means the rule of the majority, without recognizing the same ideological premises that will animate such a shape of politics?

Contrary to Rawls, a thin account of politics founded on the assumed primacy of right rather than the good is mere postponement of the inevitable.

Throwback: Remarks made at a University of Malaya forum on the Lahad Datu, Sabah incident (2013)

On March 22, 2013, the University of Malaya hosted a forum on the Sabah question in the wake of the Lahad Datu incident, in which around 200 followers of the Sultan of Sulu launched an attack, purportedly to enforce the old Sultanate’s ownership of portions of what used to be called North Borneo.

I, and Prof. Julkipli M. Wadi of the Islamic Studies program of the University of the Philippines Asian Center, were the Philippine representatives in the conference, in which senior Malaysian scholars who prepared the historical case for Malaysia’s successful prosecution of the 2002 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) before the International Court of Justice (ICJ) were our main interlocutors.

The Philippines intervened in that case, seeing how its outcome may affect its own claim over Sabah, an oil-rich region that, with Sarawak, make up for 60 percent of Malaysia’s petroleum production. While the ICJ rejected the Philippine intervention, it stated that it recognizes that there is such a Philippine claim.

I recalled this forum after the exchange of diplomatic notes in the last few weeks between the Philippines and Malaysia over Sabah. This has to do with submissions made by Malaysia to the UN on its claim for an extended continental shelf, which are anchored on baselines marked out along Sabah’s coasts, as well as on the Philippines’ Spratly Islands claim, which intersect at some points with Malaysia’s own.

History indeed remains such a powerful force in the trajectories of nations and peoples. It cannot be denied; it must be properly addressed. Yet, as can be expected, such a complex issue cannot be adequately covered by a discussion of only a couple of hours. In that forum I decided to limit my discussion to only three points, the first two being on the strongest arguments Malaysia may have to assert its sovereignty over Sabah, and the last one, on the Lahad Datu incident proper.

Even so, I hope that my remarks here (a slightly edited version of what was delivered), while being an abbreviated take on nearly a century and a half of historical contestations, somehow serve to illuminate important points on the continuing territorial contestation.

…..

We are especially honored to be sitting at the same table with very accomplished senior Malaysian academics, Professors Mohamad Abu Bakar and D.S. Ranjit Singh. That they have agreed to dialogue on this all-too important topic  with us more junior scholars on the Philippine side speak  volumes about their humility and magnanimity. For that we are grateful.

This is very much needed, as  a highly emotional topic such as this is bound to a lot of  misunderstanding. For starters there is widespread belief that the Philippine claim embraces the entirety of Sabah. It does not, but only about a third of what is now Sabah.

Given the limited time available and the broad range of topics that may fall within the ambit of the present discussion,  I will deal only  with a  focused resume of  important legal questions relevant to our present discussion, in the hope that these may serve as a springboard for a fruitful and enlightening discussion this morning.

Indeed what we have seen in Lahad Datu  is the powerful resurgence of historical memory at a time when the discourse of a modernizing or a modern state has seemed all too pervasive. In that sense, history may overshadow the legal aspect to the dispute. Nevertheless, we must discuss the legal side, for a fuller view of things.

First,  I will deal with what I consider to be the most salient of the international legal issues attendant to the territorial dispute between the Philippines and Malaysia over a portion of North Borneo.

The second, I will then discuss key points of the claims to historic title by the Philippines that is not often given the attention they deserve. 

Finally, I will then deal with the way Malaysian authorities have  tackled the Sultanate of Sulu’s so-called Royal Security Force.

My first point: What the Philippines must effectively address in its claims to historic title over Sabah is the claim  by Malaysia to the right to self-determination, which is a jus cogen norm subject of  erga omnes obligations.

In his separate opinion to the Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ in 2002, ad hoc judge Thomas Franck had this to say, in his rejection of the Philippine intervention:

Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self- determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.”

This is strong language, with the tenor of definitiveness. Of course, it should not be forgotten that this is the opinion of the Malaysian-nominated judge to the ICJ in this case. Yet, while it is not part of the majority opinion, in many ways it reflects contemporary thinking in international law on the weight of historical claims over the exercise of self-determination. The ICJ’s pronouncements in Barcelona Traction,  East Timor and Wall Opinion cases have indeed acknowledged the binding nature of this by now well-recognized principle of self-determination. 

The question for the Philippines, however, is whether the factual characterization by Judge Franck of the exercise by the people of North Borneo of this right  is borne by historical reality.

First, from the very beginning, the Philippines committed itself to welcome the creation of the new state of Malaysia subject to the final outcome of its claim over Sabah. This is clearly supported by the following:

It is important to note that these are not mere unilateral declarations but are tripartite and bilateral documents that are binding upon the signatories. In the case of the Joint Statement, they all agreed that the Philippines will continue to pursue it claim even after the inclusion of Sabah in the Malaysian Federation. In the case of the 1966 joint Communique, Malaysia without a doubt, by its consent to it, forfeited any advantage it might have acquired through the UN ascertainment of 1963.                                                                                            

This leads me to the next point under this section.

1. The Report and Recommendations  of the Conference of Foreign Ministers of the Federation of Malaya, the Republic of Indonesia and the Republic of the Philippines to their respective Heads of Government, dated 1 June 963.  What is important in this document, especially Para. 12, states that both Malaysia and Indonesia recognized the Philippine position that it had a right to pursue its claim according to international law and the peaceful settlement of disputes and all three agreed  that the inclusion of North Borneo in the federation would not prejudice  either the claim or any right arising from it.
2. The Manila Accord of 31 July 1963, signed by President Macapagal, President Sukarno and Prime Minister Tunku Abdul Rahman, adopted in toto the report of the Foreign Ministers earlier referred to.
3. The Joint Statement of  5 August 1963 by the Three Heads of Government, especially its para. 8, which referred to the Manila Accord, and reiterated their joint view that they agreed to seek a just and expeditious solution to the dispute between the British government and the Philippines over Sabah through negotiations, conciliation, arbitration or judicial settlement, or other peaceful means of resolving the issue. In addition, they affirmed that they take cognizance of the Philippine claim to Sabah “after the establishment of the Federation of Malaysia as provided under para. 12 of the Manila Accord, that is, the inclusion of Sabah in the Federation of Malaysia does not prejudice either the claim or any right thereunder.”
4. In 1966, when relations between them normalized, Malaysia and the Philippines, in a joint Communique of 3 June 1966, “agreed to abide by the Manila Accord of 31 July 1963 and with the Joint Statement accompanying it, for the peaceful settlement of the Philippine claim to Sabah.” they further agreed that to the need to sit together to clarify the claim and reach a satisfactory resolution to the issue.
5. And then, following the proclamation of the creation of the Federation of Malaysia on 16 September 1963, Manila and Kuala Lumpur engaged in  a series of exchanges of Joint Communiques, aides memoirs, Notes Verbale or diplomatic notes, all expressing the sense that both parties have remained committed to the terms of the Manila Accord of 1962. These exchanges ran from 1964 to 1968. 

From the very beginning, the Philippines has demanded that any referendum in Sabah on the question of its inclusion in the Malaysian Federation be authentic and bona fide, and under circumstances that ensured  the free and enlightened expression of  the Sabahan’s will.

But the so-called Sabah referendum was anything but a representative referendum.  It’s subject matter was actually only the election of local officials. The question of whether the people of Sabah wished to remain with Malaysia or to join the Philippines was not at all asked in the ballots issued to voters.

Moreover, much to the embarrassment of UN officials, Malaysia announced the date of the creation of the federation even before the results of the  so-called referendum could be released, as if it had already been predetermined.

In the wake of the Lahad Datu incident, the Malaysian government made the claim that two-thirds of the people of Sabah agreed to be part of Malaysia in 1962.

Sabah opposition leaders like Jeffrey Kitingan  however dispute this, arguing that what actually took place was a referendum of less than four percent of the people. If at all, Kitingan’s statement confirms the Philippines’ position from the very beginning.

Moreover, he also argues that all the relevant parties, including the Sabahans, should find a peaceful solution to the dispute under the ambit of  the United Kingdom and the United Nations. 

In any case, today’s adamant refusal by Malaysian authorities to consider a joint submission with the Philippines on the Sabah question to an international tribunal is a complete turnaround from its previous position on the matter. 

They cannot however, deny documents to which Malaysia was a willing party and that are binding under international law.

Allow me now to discuss my second point. In the Sipadan and Ligitan case, the ICJ denied the Philippine bid to be allowed to intervene, saying it did not show any specific legal interest in the dispute. 

However, what proved important to the Philippines is the declaration by the ICJ that it recognizes the existence of the Philippine position on Sabah.

This was the very first time the Philippines was able to articulate its claim to Sabah before an international tribunal, although the Court ruled that its claim was not at issue in the proceedings. What exactly is this claim by the Philippines?

As we argued in the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)ours “is a territorial claim on a portion of Sabah which properly belongs to the Philippines on the basis of a sound title jure gentium and which Malaysia is improperly occupying on the basis of a faulty title which had been transferred to it by a prior faulty title holder.” Indeed, the Philippines is not claiming all of Sabah or contesting its political legitimacy. We are simply claiming a piece of territory in North Borneo on the basis of a clear chain of title.

At its heart is the claim that the1878 contract entered into between the Sultan of Sulu and the prospectors Dent and Overbeck is one of lease and not of transfer of sovereignty. 

This lease contract was later passed on by the prospectors to the British North Borneo Company (BNBC), which in turn,  sold its rights under the contract to the British Crown. As in international law, sovereignty can only be ceded to sovereign entities or to individuals acting for any sovereign entity Overbeck and Dent did not have the power to pass on to BNBC sovereignty over the properties of the Sultanate of Sulu over portions of North Borneo, they being neither sovereign entities nor individuals acting for any sovereign entity. 

In fact, in  1903, the BNBC would sign with the Sultanate of Sulu a confirmatory Deed to the original terms of the 1878 lease.

From 1878 to just before the1946 Cession, the British Crown has always recognized the 1878 contract as no more than a lease.  The British Foreign Minister, Lord Granville,  assuring the Spaniards that the BNBC is not acquiring dominion and sovereignty in North Borneo, stated thus:

The Crown assumes no dominion or sovereignty over the territories occupied by the company nor does it purport to grant to the Company any powers of government thereover; it merely confers upon the persons associated the status and incidents of a body corporate and recognize the grants of territory and the powers of government made and delegated by the Sultan in whom the sovereignty remains vested.

The British Foreign Minister would go on to say the BNBC was merely an administrator. To the same effect,  the Prime Minister, Mr. William Gladstone, in the debates in the House of Commons,  gave an important speech. 

Thus Malaysia acquired no more than a derivative title from the British crown, which could not be any better than what the BNBC acquired from Overbeck and Dent.

And Malaysia’s continuing payment of pajak to the heirs of the Sultan of Sulu, on the basis of the 1939 probate  of the will of Sultan Jamalul Kiram by North Borneo Chief Justice Macaskie, in the amount of 5, 300 dollars annually, further affirm the Philippine position.

The Chief Justice, in his decision dated18 December 1939, thus said:

     It is abundantly plain that the successors in Sovereignty of the Sultan of Sulu are the Government of the Philippine islands, but Mr. De Leon contends that the decision of the Philippine courts in the administration suit relating to the late Sultan’s estate precludes that government from asserting any claim to the cession monies. In my view, this is correct. The Philippine government allowed Sultan Jamalul Kiram to enjoy cession monies as a private person sine 1915; they have made no claim on his death and by a judgment  of a Philippine court recognized the right of the private heirs of the Sultan to receive the cession monies. (based on the Maxwell-Gibson translation of 1878)

Justice Macaskie here has two aspects of the question in mind. First, he recognizes that there are rights to sovereignty which now pertain to the Government of the Philippines and there are proprietary rights that accrue to the heirs of the Sultan of Sulu.

This distinction may provide an alternative that could be most beneficial to all concerned.  Of course, there is also the  option of the Philippine government waiving the sovereignty  question, but pursuing its right to reparations over the loss of territory in a process that, from its perspective, was inequitable, even legally anomalous. Given the limitations of this forum, I’m afraid these options will require further elaboration best reserved for another occasion.

My third point : on the current situation in Lahad Datu, the question of the arrested members of the RSF and Filipinos caught in the cross-fire in Sabah

Please allow me to take this opportunity to bring to your attention international legal obligations that Malaysia and the  Philippines need to observe in dealing with the Lahad Datu incident.

According to the Swiss arbitrator Max Huber in the Las Palmas case, one state’s  sovereignty over its territory comes with the concomitant obligations towards the rights of other States: 

Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian. 

In other words, the fact that one has sovereign claims over a piece of territory does not entitle it to wanton ill-treatment of foreigners found within that territory, even assuming for the sake of argument that these foreigners are alleged to have committed acts inimical to the interests of the state. Thus Malaysia has obligations under international law to accord the 200 or so followers of the Sultan of Sulu with the rights protections.

Thus,  I view with much trepidation the refusal by Malaysian authorities to allow Philippine consular officials to exercise their duty to provide consular protection to arrested members of the Royal Sultanate Security Force under the terms of Art. 36 of the Vienna Convention on Consular and Diplomatic Protection. 

In both the La Grand and Avena Cases, the ICJ has laid down the positive duty of states to accord consular privileges to sending states whose nationals have run into trouble in the jurisdiction of the receiving states.  The right of a state to claim rights for its nationals abroad is referred to as “diplomatic protection”. Here, the duty of the state is to ensure that states treat their nationals abroad in a manner that complies with human standards recognized under the International Covenant on Civil and Political rights, among others documents.

Thus, it is to the interest of both the Philippines and Malaysia that the rights of the Sultan of Sulu’s followers arrested in Sabah are assured and accorded rights guaranteed under international law.

Thank you.


Postscript:

The full legal claim by the Philippines over Sabah (North Borneo) has been declared by its agent, Professor Merlin M. Magallona, in its intervention in the Sipadan and Ligitan case. Click here for the transcript of the oral proceedings before the ICJ, where Professor Magallona details for the ICJ’s appreciation the Philippine claim,

Is Vietnam now ready to do “a Philippines” against China?

By Romel Regalado Bagares*

There are unmistakable signs that Vietnam may have already reached the point of no return in its maritime dispute with China.  

One such sign is Vietnam’s recent nomination of four arbitrators – including that of Professor Robert C. Beckman, a noted Law of the Sea expert based at the National University of Singapore, under Annex VII of the UN Convention on the Law of the Sea.

That section of the multi-party treaty outlines the default  compulsory mode for arbitrating questions of interpretation and application of the UNCLOS or relevant treaties where the parties have not agreed beforehand on any mechanism to resolve such disputes.

Last month, on July 27, a  Vietnamese news outlet reported the names of three other nominees, all Vietnamese  UNCLOS experts:  Professor Nguyen Hong Thao of the Diplomatic Academy of Vietnam and a  member of United Nations International Law Commission, Dr. Nguyen Thi Lan Anh,  former Vice Chair of  the Vietnamese National Border Committee and an associate professor at the  Diplomatic Academy of Vietnam, and Dr. Nguyen Dang Thang, the Director of the Vietnamese National Border Committee and a member of the Permanent Court of Arbitration.

Last August 8, the think-tank Professor Beckman had founded, the NUS-Centre for International Law,  announced that the Embassy of Vietnam in Singapore earlier  formally presented  to him his nomination by the Ministry of Foreign Affairs of Vietnam as an Annex VII arbitrator.

“[T]his is the first time in history that Vietnam has nominated a foreign national to this important position,” said the CIL statement issued two days after the event, citing the Vietnamese ambassador to Singapore, Tao Thi Thanh Huong. “This proves not only the recognition of the knowledge and experience of the nominee but also his impartiality to and support of the peaceful resolution of disputes based on international law.”

In fact,  Vietnam had submitted its list of nominated arbitrators to the UN Secretary General much earlier, on May 15 this year. 

Under Annex VII rules, only one of its four nominees  may serve as an arbitrator in a  proceeding initiated by Vietnam.  

An arbitral tribunal created under Annex VII has five members. The state that instituted the proceedings is allowed to nominate one arbitrator  from its list of nominees. The respondent state, within 30 days of receiving notice of the proceeding, may also nominate its own arbitrator. The other three arbitrators are to be chosen from nationals of third states by agreement between the parties to the dispute, unless they otherwise agree. 

It is likely Vietnam will appoint Professor Beckman to such an arbitral tribunal, given his high standing as an expert. It also remains to be seen whether in such a new proceeding, China will deviate from the strategy it had taken in the Philippine arbitral case. 

As it had done before, it is expected to reject a new arbitral proceeding, and instead  insist on bilateral negotiations. 

In November last year, a top Vietnamese diplomat announced that his country is now seriously considering to follow Manila’s earlier lead to bring China to arbitral court over repeated Chinese intrusions in Vietnam’s Vanguard Bank, an oil-rich section of its EEZ.

The Philippines’ 2013 arbitral case against China over the latter’s expansive Nine Dash Line-claim was also founded on Annex VII. 

The Philippines however only nominated an arbitrator after it had already filed a notice to China that it was hauling the latter to arbitral court. With China’s decision not to participate  in the arbitral proceeding, it was the ITLOS President who appointed the other members of the arbitral tribunal.

ITLOS in Singapore

Vietnam’s move to nominate its own arbitrators also came on the heels of a model agreement signed by Singapore and the International Tribunal on the Law of the Sea (ITLOS) last June 11 recognizing the city-state as an alternative seat for the tribunal.

State parties in the region may now litigate disputes under the UNCLOS in ITLOS proceedings conducted in Singapore, if they so choose.

It is decidedly  a much cheaper option for Vietnam than the tribunal’s official seat in Hamburg, Germany, or other tribunals in Europe. In the case of the Philippines, its arbitral case was litigated  in The Hague under the supervision of the ITLOS. 

China had refused to participate in the landmark Philippine arbitral case –  only the eighth such proceeding under Annex VII, which took effect in 1994.  The 2016 arbitral ruling handed down by the arbitral tribunal through the PCA in that case is yet the most comprehensive in scope since the ITLOS began hearing procedures under the  compulsory dispute settlement mechanism of ANNEX VII.

It established definitive rules on such areas as the legal status of historic rights in relation the maritime entitlements under the, artificial and natural islands, high tide features and low-tide elevations, responsibility for environmental damage, safety in marine navigation, and traditional fishing grounds as against the EEZ.

Indonesia, along with Vietnam, Malaysia, Japan, and Thailand, had each sent a diplomatic observer to the arbitral proceedings at The Hague. Except for Thailand, all of them have a running maritime dispute with China. Too,  Vietnam had as well filed a brief with the PCA supporting Manila’s case against China.

Seismic effect of a Vietnamese arbitral case

But in the last four years since the PCA handed down the ruling, the Chinese government has been banking on a game of smoke and mirrors, trying to project to the world that the arbitral ruling and the arbitral court that handed it down were anything but legitimate. 

It has combined this with a virtual military occupation of maritime features that, according to the PCA’s 2016 ruling, are unable to support human habitation or economic life and thus, fall within the Philippines’ Exclusive Economic Zone.

For this  reason, even without Chinese participation, a  Vietnamese arbitral case invoking key holdings of the PCA on the Philippine arbitral case will have a seismic effect sure to be felt not just in the ASEAN region but well beyond.

Trang Pham, a lecturer at the Vietnam National University,  was quoted in an August 22 report by the South China Morning Post as saying that all that needs to be done is a “political decision” by Vietnamese leaders to take its maritime dispute with China to arbitration.

Pham noted that the Vietnamese have already completed all necessary steps that are a prelude  to arbitration, from publicly airing its views to submitting a note verbale to the UN Secretary General on the question.

Indeed, since December last year, Vietnam –  along with the two other biggest economies in ASEAN, namely Malaysia and Indonesia – have fired a flurry of diplomatic missives to the UN protesting Chinese incursions into their own maritime territories. 

They either explicitly cited the  UNCLOS ruling in the Philippine arbitral case that invalidated the Chinese Nine Dash Line-claim, or used its key holdings.

The Vietnamese stance today is a far cry from the stance it had taken in 2011, when it signed an agreement with China to resort to negotiations and friendly consultations as means to resolve maritime disputes.

The Chinese constructivist gambit fails

These diplomatic maneuvers, all from what international law calls “specially-affected states”  also indicate that China’s “constructivist” gambit against established maritime rules has utterly failed. 

A Chinese scholar interviewed for the same South China Morning Post report appears to have acknowledged this. “What is certain is that among Asean countries, those that have territorial sovereignty and maritime delimitation disputes with China are constantly invoking arbitration awards to deny China’s claims to the South China Sea,” said Dr. Ding Duo of the National Institute for South China Sea Studies in Hainan.

He was quick to warn that claimant states in the ASEAN should not allow themselves to be used as pawns in the renewed struggle for regional influence between China and the United States. 

“There’s clearly a change in attitude, due in part I think to China being increasingly viewed as a threat to the rules-based order set out in Unclos”, the South China Morning Post report  also quoted Professor Beckman as saying, “[and] because it is asserting rights in particular to the ocean resources that belong to its neighbours.” 

However it mentioned neither Professor Beckman’s appointment as an arbitrator, nor those of the three other Vietnamese experts. The international lawyer  and senior American academic – whom the Hongkong-based newspaper calls “the region’s most eminent ocean law scholar” – is professor emeritus and head of the NUS Faculty of Law’s Ocean Law and Policy Program. 

Professor Beckman will have his hands full with a Vietnamese arbitral proceeding against China, as is not without its own challenges.  

This has to do, according to one expert, with the particulars of the dispute between Vietnam and China, which may not be on all fours with the one litigated by the Philippines. For starters, there are potential overlaps of claims to a continental shelf and an EEZ between China and Vietnam, which may serve to preclude an Annex VII arbitration. There too, are certain Vietnamese-drawn baselines that – it is claimed – do not conform with UNCLOS standards. 

Vietnam may however choose to tailor the question only  to the Vanguard Bank standoff, where China’s claim is founded on its Nine Dash Line-claim. In such a situation, the primary holding in the Philippine arbitral case reverberates: such a claim, being one for historic rights, is incompatible with a coastal state’s maritime entitlements under the UNCLOS. 

In fact,  the Vietnam Society of International Law (VSIL) had written the Chinese Society of International Law (CSIL) in October last year,  invoking the Philippine precedent for Vietnam’s oil- and gas-drilling operations in the Bank, according to a March 18 article this year  by Dr. Ding, the Chinese scholar, also for the South China Morning Post. In the same letter, the Vietnamese international law scholars intimated Hanoi’s intention to follow Manila’s tack by bringing the question to an arbitral proceeding.

Whatever the eventual shape the Vietnamese arbitral claim may take, Vietnam’s nomination of Annex VII arbitrators for its side of the case takes it a step closer to arbitration against China. 

*Romel Regalado Bagares, a graduate of the University of the Philippines College of Law and the Vrije Universiteit Amsterdam, teaches public international law at the Lyceum of the Philippines University College of Law. He is also a trustee of the Philippine Society of International Law.

This article first appeared on Verafiles on August 24, 2020.

Getting a 5.0 in a class on public international law back in the day

I recently made a backup copy of a recording I made two years ago of a brief conversation with Dean Merlin M. Magallona on how he developed his approach to teaching the Philippine practice of international law.

He said in 1995, he first realized something was wrong with how international law is taught in the Philippines when he was gathering materials for his first book dedicated solely to teaching international law.

He said international law as practiced in the Philippines is not international law in the objective international plane (vague echoes of Kelsenian language there, although his method is hardly one!).

Then he recalled being a student in the public international law class taught by Dean Vicente G. Sinco, back in the early 50s.

Back then, Dean Magallona said, students went to class in elaborate Barong Tagalog or a suit, and woe to you if you dressed less than what the dress code stipulated.

Dean Sinco would open the class by asking “do you know where I just came from?”

(Aside from being a full professor of law, also served as a presidential adviser. He would also sit as a member of the Monetary Board. He taught at Malcolm Hall from 1925-1955, and became UP President in 1958).

Dean Sinco would then open the recitation for the day by shuffling a set of cards, each of which bore a question pertinent to the assigned readings for the day. Students picked a card from the set, and they were to answer the question the deck dealt them.

Dean Sinco would bellow to the hapless student unable to answer the question: “Do you know my name? That is the grade you will get from me today!”

xxxx


Dean Magallona’s short book referred to here was later expanded to become The Fundamentals of International Law, published in 2005. These books are arranged in catechetical style (Q and A), and I hazard that today, these remain two of the best printed pedagogical tools there are on international law in the Philippines.


One of Dean Sinco’s innovations as UP president was his introduction of the ‘end-to-end approach’, in which students were taught a few subjects at a time, devoting longer periods each day until the whole course was covered and final examinations were given, before another set of subjects were taken. (I encountered a version of this in grad school in Amsterdam in 2006-2007).

This did not sit well with his UP constituents.

But Dean Sinco’s lasting legacy bequeathed to generations of UP students was the General Education Program, which he had initiated. The GE Program was a cornerstone of UP education for decades, on the vision of a sound liberal arts foundation for all disciplines.

He was a proud Sillimanian (BA, 1917; LLB, 1921; LLM, 1925;UP).

He was also a member of the Philippine delegation to the drafting of the UN Charter, and served as a rapporteur of Commission No. 1 of that body, which was assigned to draft the general provisions of the charter of the UN.

I’d love to get my hands on his papers, if they were collected at all, on this key period of his academic and legal career!

PS: I did not have the pleasure (or terror!) of being a student in Dean Magallona’s class in public international law. Instead, I had him as my legal history professor, under which I had my very first recitation in law school!

Böckenförde on Our Lady of Guadalupe

Exactly my thoughts on Our Lady of Guadalupe v Morrisey-Beru (US Supreme Court, 2020):

“As the new ethical liberalism fails to take conscience seriously, it also risks undermining the claims of community. It is at least arguable that the central idea of liberalism is not even the free individual, but the community of persons committed to the collective pursuit of truth, goodness, and beauty, free from the coercive orders of politics and law. This idea reaches back behind the second more individualistic wave of liberalism, associated with the Enlightenment and the values of the French Revolution, to what Böckenförde—and others such as Harold Berman and Larry Siedentop—identified as the first step towards the liberal secular state in the 11th century Gregorian reforms and the emergence of the Church as a competing authority to kingly rule But it is also present in 19th century struggles to disentangle church from state both to purify the former and to confine the latter. Böckenförde would go even further and argue that it is the unavoidably contestable nature of the boundary between “church” and “state” and its consequent fluidity, subject to perpetual negotiation under the influence of the concrete and practical implications of the “Christian message of salvation,” which is an important guarantor of the liberal society. The focus here is not on individual identity and diversity, but on a diversity of distinctive communities and institutions. In short, a better reading of the liberal tradition is pluralist rather than merely individualist, not least because a liberal pluralism of institutions can guard against the destruction of a free civil society in the name of a homogenizing defense of the individual against competing communities of conviction.”

-Julian Rivers, Counter-Extremism, Fundamental Values and the Betrayal of Liberal Democratic Constitutionalism, Special Issue, “Böckenförde Beyond Germany,” German Law Journal (2019)

The limits of Stare Decisis

Here’s Adrian Vermeule critiquing the US Supreme Court’s decision in June Medical Services, or to be precise, the judicial philosophy of Chief Justice Roberts, who provided the swing vote to the majority decision.

Now if I were a Philippine Supreme Court justice, what would be my approach to resolving contentious constitutional questions?

I’d say stare decisis is good and holds, until we have a better, and deeper and deepened insight into the law and the constitution; but then again, such insight is always founded on certain first principles, and in my case, such first principles are best rooted in the recognition of societal pluriformity (the juridical delimitation of public justice and the common good, and the recognition of differentiated responsibility and distinctive integrity of different societal spheres) — really our best defense against totalitarian systems of the Left and of the Right.

So on Vermeule’s approach, I’d say it is really just a procedural delay of the inevitable, albeit to be fair, he is certainly just looking at the notion of precedent defended by Chief Justice Roberts here. His approach calls for a “thick” appreciation of precedent, and not a “thin” one where one case is already held to be determinative of established precedent.

Reading between the lines of Duterte’s VFA half a turnaround

By Romel Regalado Bagares

Was all of President Duterte’s  kicking and cursing about the Visiting Forces Agreement (VFA) in February – to borrow from the Bard –really just all bluster, “told by an idiot/ full of sound and fury,/Signifying nothing”?

The question arose after President Duterte suspended for the time being an earlier notice he had sent to the Trump administration that  the Philippines was terminating the country’s VFA with the United States.

Foreign Affairs Secretary Teodoro Locsin Jr announced late Tuesday night the stay on the abrogation of the treaty via a tweet – well, at least, for the next six months.

But the clue lies in the conditional nature of the not-quite complete reversal of policy: per Locsin, the suspension of the process of abrogation took effect on June 1, and  “shall continue for 6 months” and may even be extended for an equivalent period.

Under article 9 of the VFA, the notice of termination was to become effective “180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.”

But the big conditional points to a pending purchase by the Philippines of  six advanced combat helicopters, which had already been cleared by the US State Department but is being opposed by Philippine and American human rights groups.

The purchase, with a price tag ranging from US $450 million to US $1.5 billion, depending on the helicopter make and model  that will eventually be sold, still needs US congressional approval.

And that’s the reason why Mr. Duterte is being segurista. He doesn’t want to fully commit yet to the restoration of the VFA, because he’s leery of what the US Congress will do when the proposed sale is formally presented to it for approval. 

 “The Philippines is considering either the AH-1Z or the AH-64E to modernize its attack helicopter capabilities,” a note on the website of the US Defense Security Cooperation Agency (DSCA) states, as quoted by Defense News. “The proposed sale will assist the Philippines in developing and maintaining strong self-defense, counterterrorism, and critical infrastructure protection capabilities.”

The DSCA is a US Department of National Defense unit dealing with security cooperation with American allies. 

To begin with, the approval by the US State Department should not have happened, given the very reason  for Mr.  Duterte’s decision to end the VFA – yet another cautionary example of American regional realpolitik.  They like to wear the human rights hat when it suits them, but they could just as quickly ditch it in the name of US national interest.

In late January this year,  Mr.  Duterte explored in anger over the reported cancellation by the US of the American visa issued to a key ally in his deadly drug war, Senator  Rogelio “Bato” Dela Rosa, because of the role he played as chief implementor of Oplan Tokhang when the latter was chief of the Philippine National Police (PNP).

What really angered  Mr. Duterte was that the visa cancellation was apparently the consequence of the Asia Reassurance Initiative Act (ARIA), signed by US President Donald Trump in December 2018.

ARIA advances a “Free and Open Indo-Pacific” policy based on national security interest of the United States to promote “human rights and respect for democratic values in the Indo-Pacific region.” The law specifically references the Philippines over “disturbing reports of extrajudicial killings.”

It complements the older Magnitsky Act, a law authorizing the US government to sanction those who it sees as human rights offenders by freezing their assets, and banning them from entering the U.S. 

ARIA authorizes the American president to impose “targeted financial penalties and visa ban sanctions, in accordance with applicable law and other relevant authorities, on any individual or entity that–(1) violates human rights or religious freedoms; or (2) engages in censorship activities.”

It specifically provides that the US government may not provide counter-narcotics assistance to the PNP unless the Philippines adopts a strategy “consistent with international human rights standards, including investigating and prosecuting individuals who are credibly alleged to have ordered, committed, or covered up extrajudicial killings and other gross violations of human rights in the conduct of counternarcotics operations.”

ARIA is also tied to the US Asia pivot to contain China’s growing influence in the Asian region, as it authorizes US forces to “conduct, as part of its global Freedom of Navigation Program, regular freedom of navigation, and overflight operations in the Indo-Pacific region, in accordance with applicable international law; and (2) to promote genuine multilateral negotiations to peacefully resolve maritime disputes in the South China Sea, in accordance with applicable international law.”

This makes Mr. Duterte, who has brought the Philippines closer to China more than any other Filipino leader, a prime target of US sanctions under ARIA.

This also explains Mr. Duterte’s decision to go after the VFA, despite protestations from the Philippine defense establishment. 

As they say, there’s an opportunity in every crisis.

For the Americans, the hefty price tag  that the pending sale of defense articles comes with is only icing on the cake, if it pushes through. After all, it will be the single biggest sale of brand new US defense materiel to the Philippines in recent memory.  More than that, it is a chance to re-establish ties with the Philippine military establishment, and even to re-commit the latter into the US regional agenda.

For Mr. Duterte, it’s an opportunity to placate a restive military unhappy with his pro-China policy direction on the South China Sea. It’s also face-saving for him (look, Trump blinked!), even if in reality, he actually fell for the trap laid down by the Americans for Mr. Duterte when they pushed the ARIA button to get him back to talking with them. 

For the military, it is only too happy to take any chance it gets to upgrade its puny  capabilities (yes, it’s true plenty of them do care about the defense of our national patrimony). Yet  it also highlights for its own constituency the key role the military continues to play under the Duterte administration – for or against.

What we don’t know is if a successful sale will mean Senator Dela Rosa will get back his US Visa. Maybe not.

—————-

This was earlier published by Vera Files and news.abs-cbn.com on June 4, 2020.

Unpopular opinion: the State of Exception and the True Sovereign in Grotius

Herman Dooyeweerd, on the antinomy between the primacy of the will and natural law in Hugo Grotius

‘Characteristic of the humanist theory of natural law since Grotius is that, on the one hand, it took the element of the will in positive law and carried it through to the strictest consequences imaginable, while on the other hand it juxtaposed a rigid mathematically deduced system of natural law as an unbreakable code of immutable rules. Natural law was there to serve as the brake on the arbitrariness of absolutistic political authority. Pacta sunt servanda, the inviolability of contracts initially proclaimed as the natural-law basis for the binding character of positive law, had turned out to lead directly to sanctioning royal absolutism. Over this royal absolutism, as we saw earlier, fell the dark shadow of raison d’état. In any consistent elaboration of these two unresolved and basically antithetical principles, the inherent antinomy between human- ist natural law and humanist raison d’état could only be felt with increasing severity. 

This conflict is doubly tragic in Grotius, since his entire work was intended as a passionate protest against the doctrine that utility or interest is the only criterion of law. His entire construction of a system of unbreak- able, eternal natural law and of a system of unbreakable rules of interna- tional law, based on natural law and the tacit agreement of civilized peo- ples, was to oppose that doctrine. Yet he reinstated the very principle of utility for positive law. “Utility has occasioned the making of positive law; for the social contract or the communal subjection to some authority, of which we spoke just now, took place originally for the sake of a certain advantage.”1 

Given all that we have shown thus far, we need not elaborate why this is not the Aristotelian-Thomist doctrine that every creature by nature seeks its own good, its perfection. How can a rigid system of natural law as set forth by Grotius peaceably coexist with such a utilitarian conception of 

Even though Grotius, as we noted, looked at natural law in its institu- tional character, yet he totally failed to place positive law itself on the firm footing of legal institutions. Positive law and natural law have no other point of contact in Grotius than in the principle of the inviolability of con- tracts, a principle that is constantly undermined by the principle of the will. For the rest, Grotius is content to view natural law as an external limit, not as an intrinsic principle of positive law. The inner antinomies of the entire humanist system, not surprisingly, soon come to light. 

The first concession which for the sake of the raison d’état of positive law restricts the area of natural law is that natural-law liberty is unreserv- edly sacrificed to the principle of the will. Positive law can forbid what- ever is permitted by natural law or allow it only under certain circum- stances. Only what natural law strictly enjoins or prohibits constitutes a boundary, a limit for the arbitrariness of the lawgiver. 

More dangerous is the second concession Grotius must make to raison d’état. He writes that even if positive law does not violate the imperative rules of natural law, it can nullify them by suspending the conditions un- der which alone natural law holds. As an example of such a suspension of natural law by positive law he refers to the act of the creditor who forgives a debt, thus relieving the debtor of his natural-law duty to honor his con- tract. Such a waiver may have been provided for by some prior “arbitrary” rule of positive law.1 Grotius adamantly rejects the charge that in this way he delivers up natural law to the arbitrariness of positive law. 

But, we may ask, when we draw out the consequences of his train of thought does it not lead directly to putting all natural law on hold, owing to the principle of the will in his contract theory? Of course one can hardly object to the case of the creditor who waives a debt; a noble ethical motive may well be the reason for such a remission. But when the naked, brute principle of the will, removed by Grotius from every ground of morality or equity, may even be mobilized, by analogy, against strict natural law, then the whole code of natural-law rules can indeed be reduced to scrap paper. 

Do consider that Grotius takes pacta sunt servanda in such a formal sense that even a promise immorally motivated (for instance, the promise ted, and also, in general, that a promise does not require a cause.1 

In his treatment of the natural-law rules of the law of war, Grotius him- self provides us with a sample of the elasticity of the principle of the will even within the area of strict natural law. According to natural law, a state that engages in warfare without being able to point to a legal ground for its declaration of war commits an unjust act deserving of punishment. Inter- national law, however, denies a party the right to punish its opponent for acts of war. That does not justify such acts of war, but the nations have mutually decided, and are obligated by a tacit agreement of wills, to cede the rights they would otherwise have had on grounds of the unjust charac- ter of those acts.2 

When we recall how Grotius started out by declaring that punishment for actions committed in violation of strict natural law was itself a rule of strict natural law, then this example is enough to show how in this train of thought the principle of the will undermines strict natural law. 

Finally, Grotius makes a third concession to the doctrine of raison d’état, and here the modern meaning of the concept of the “public good” in humanist legal theory is unmistakably evident. In treating of the legal force of a sovereign’s promises, contracts, and oaths, Grotius introduces his famous distinction between actions which the king does as king and actions which he does as a private individual. What the king does as king must be considered actions of state. Since the laws of the state do not hold for such actions because the state cannot bind itself to its own laws, the same goes for the laws which the king has decreed. For example, with re- gard to contracts, promises, and oaths entered into by the king as king, restitutio in integrum is not possible since that is a privilege of a private individual based exclusively on positive law. In line with Grotius’ entire train of thought, the above is of course true only of the absolute sovereign, not of the ruler whose sovereignty is restricted by laws. 

Whatever the king does as a private individual must be viewed, not as an act of state, but as an act by one of the private citizens, and hence done with the intention to adhere to the normal rule of law. The king himself may determine whether he wishes his action to be viewed as an act of state or as a private act. The determination of his intention must take the cir- cumstances into account. If the act was intended as an act of state, then he enjoys dispensation ipso jure from positive law and the validity of the of a reward to a hired killer) must be kept once the crime has been commit- ted, and also, in general, that a promise does not require a cause.1 

In his treatment of the natural-law rules of the law of war, Grotius him- self provides us with a sample of the elasticity of the principle of the will even within the area of strict natural law. According to natural law, a state that engages in warfare without being able to point to a legal ground for its declaration of war commits an unjust act deserving of punishment. Inter- national law, however, denies a party the right to punish its opponent for acts of war. That does not justify such acts of war, but the nations have mutually decided, and are obligated by a tacit agreement of wills, to cede the rights they would otherwise have had on grounds of the unjust charac- ter of those acts.2 

When we recall how Grotius started out by declaring that punishment for actions committed in violation of strict natural law was itself a rule of strict natural law, then this example is enough to show how in this train of thought the principle of the will undermines strict natural law. 

Finally, Grotius makes a third concession to the doctrine of raison d’état, and here the modern meaning of the concept of the “public good” in humanist legal theory is unmistakably evident. In treating of the legal force of a sovereign’s promises, contracts, and oaths, Grotius introduces his famous distinction between actions which the king does as king and actions which he does as a private individual. What the king does as king must be considered actions of state. Since the laws of the state do not hold for such actions because the state cannot bind itself to its own laws, the same goes for the laws which the king has decreed. For example, with re- gard to contracts, promises, and oaths entered into by the king as king, restitutio in integrum is not possible since that is a privilege of a private individual based exclusively on positive law. In line with Grotius’ entire train of thought, the above is of course true only of the absolute sovereign, not of the ruler whose sovereignty is restricted by laws. 

Whatever the king does as a private individual must be viewed, not as an act of state, but as an act by one of the private citizens, and hence done with the intention to adhere to the normal rule of law. The king himself may determine whether he wishes his action to be viewed as an act of state or as a private act. The determination of his intention must take the cir- cumstances into account. If the act was intended as an act of state, then he enjoys dispensation ipso jure from positive law and the validity of the contract must simply be judged according to the rules of strict natural law. In that case, too, the creditor has a claim against the king, but only to de- clare his right, not to bring an action in a court of law, since a subject can- not compel his sovereign.1 

All this seems to strictly favor the natural-law rule of the inviolability of contracts, and accordingly Grotius engaged in polemics with Bodin, whose conception he considered to be too elastic in this regard. But even this principle of natural law, which Grotius otherwise insists upon quite part from all higher considerations of justice and equity, in the end suffers shipwreck on the rocks of the merciless logic of raison d’état.2 Immedi- ately following the above expositions, Grotius gives us this telling warn- ing:

One must of course consider that even when the subjects have acquired a right, the king can deprive them of it in one of two ways, either as a penalty or by virtue of his supreme ownership (dominium eminens), on condition of course that he make use of this latter right only when the interest of the state demands it, and that, if possible, the subject who suf- fers loss in consequence be indemnified from the public treasury. 

And if this is the case for other matters, then it must also be considered valid for “rights which the subject acquires by way of contract or prom- ise.” For good measure Grotius adds that it makes no sense to distin- guish between rights obtained by virtue of natural law and those ac- quired exclusively on grounds of positive law. “For the power of the sovereign extends equally over both kinds of rights, and the latter can no more be denied without cause than the former.”3 

And then follows a much more limited formulation of the natural-law rule of mine and thine than that presented in the Prolegomena. For natural law itself, Grotius observes, requires that one not be deprived of one’s property, or any other right lawfully acquired, without cause. In other words, even pacta sunt servanda is a rule whose validity for the state in the end depends entirely on raison d’état. Predictably, within the framework of the humanist doctrine of absolute authority it is the sovereign alone who decides what is required by raison d’état in any given case. Yet again Grotius impresses upon his readers that against one’s sovereign, even though he act in obvious conflict with natu- ral law in applying raison d’état, one can never make any instrument of law stick. The sovereign judges each of his subjects but he himself is judged by no one.1 When one considers, moreover, that Grotius is far from identifying the interest of the state with the welfare of the subjects (wit- ness his view of patrimonial states), then the tragic result of the inner antinomy in his humanist system of natural law appears to be that natural law, developed in such detail, stands powerless before the principle of rai- son d’état which respects no restrictions by natural law.

This antinomy is inescapable and irresolvable, since on the one hand humanist natural law as an isolated individualistic principle was cut loose from the coherence of all law-spheres in the Christian law-idea, while on the other hand the humanistically conceived raison d’état is not steeped in natural law but instead inundates the whole of life, washing over and sweeping away all sovereign limits of law. 

Only the truly Calvinist principle of sphere-sovereignty is able to ground “raison d’état,” in its only rightful sense, in natural law itself, as well as to restrict the absolutism of the “public good” in keeping with the divine boundaries of the other sovereign spheres of law.’

 in The Struggle for a Christian Politics (The Collected Works of Herman Dooyeweerd, Series B, Vol. 17, trans. 2012, Paideia Press) 232-236