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)

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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.

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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.

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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

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A democratic biopolitics, anyone?

The notion of biopolitics – democratic or otherwise –often enough proceeds from the assumption that there really is no such thing as a jurally-delimited “public interest” that the state is supposed to pursue; such delimited public interest recognizes that there are a great many human responsibilities/relations/communities/associations that are outside the sphere of the political, and that are ontologically distinct from that occupied by the state.

Leftist/Marxist accounts of the state begin by expressly rejecting any notion of a telos for the political, only to proceed with a critique of the state that implicitly assumes there is such a thing. Dooyeweerd calls this “a state without a state-idea.”

Just consider the deployment of the democratic as a proposed curtailment of biopolitics.

In any case, a jurally delimited notion of the public interest would critique biopolitics as a reductionist, if expansive, sphere of the political (defined as state power). In reformational philosophical terms, the human is not/cannot be defined by any of its relations; the human transcends all of the aspects of reality. The human is only defined by its relation to the Origin.

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Filed under Agamben, Carl Schmitt, COVID-19, legal theory, political theology, Politics, Principled Pluralism, Public Interest, reformational philosophy, State

The recent ILC report on immunity of foreign officials before national courts

The curious case of Omar al-Bashir, recently ousted President of Sudan, has been a sore point to the International Criminal Court at least, until his ouster from power in April last year.  Wanted for a host of crimes cognizable by the ICC, he had eluded arrest warrants, with various  states – and the African Union itself – refusing to enforce them, on the ground that as a head of state, he enjoys immunity from suit and process.

Jordan’s failure to do the same gave rise to a case before the  ICC Appeals Chamber on that very question, and in May last year, just a month after the Sudanese dictator was removed from power by peaceful protests over corruption charges, the Chamber issued a ruling that effectively removed any claim to immunity by foreign leaders with respect to processes conducted by an international criminal tribunal tribunal such as the ICC. Controversially, the Chamber held that under customary international law, no such immunity may be interposed as an objection as far as international criminal tribunals are concerned.

That conclusion sparked something of an uproar in the international criminal law academia. See here, here, and more recently, here.

The International Law Commission has just weighed in on the question in its Eighth report on immunity of State officials from foreign criminal jurisdiction, submitted by Special Rapporteur Concepción Escobar Hernández. Paras. 25-32 of the Report are apropos.

And the ILC essentially supports the conclusion reached by the ICC Appeals Chamber in the al-Bashir case.  As the report puts it, the following summarizes the Chamber’s findings of immunity of foreign officials in relation to international criminal tribunals:

(a) National tribunals and the International Criminal Court are subject to different rules with regard to immunity: while immunity of State officials may be invoked before a foreign criminal court, it cannot be invoked before the Court;
(b) Heads of State enjoy immunity before the national criminal tribunals of a third State, but not before international criminal tribunals.

(c) States parties to the Rome Statute have an obligation to cooperate fully with the International Criminal Court, including by arresting and surrendering persons accused of committing crimes that fall within the jurisdiction of the Court;
(d) The obligation to cooperate is linked to article 27 of the Statute, which creates both vertical effects (jurisdiction of the International Criminal Court) and horizontal effects (jurisdiction of national courts);
(e) In complying with the Court’s request for cooperation, “the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of the Court’s jurisdiction.

The special rapporteur notes it is the last three paragraphs above that “may have some bearing on the present topic, particularly on the very concept of foreign criminal jurisdiction.” 

The Special Rapporteur stresses that indeed her work centers on immunity of foreign officials before national courts, but the Commission may not as well disregard the important work of international criminal tribunals in the fight against impunity, citing the International Court of Justice’s ruling in Arrest Warrant of 11 April 2000 case, which, in her view, “identified such tribunals as an alternative means of avoiding impunity in cases where the criminal courts of a State cannot exercise jurisdiction.”

She continues that “this would allow a case to be referred to an international criminal tribunal as a way of ensuring that the immunity of State officials from foreign criminal jurisdiction is respected and, at the same time, that international criminal responsibility for the commission of certain categories of crimes is clearly established.”

Thus she does not see a conflict in the jurisdiction of foreign courts and international criminal tribunals with respect to foreign officials.  Where I sit, I read her as saying that the complementarity principle enshrined in the Rome Statute would be relevant here specifically for states that are parties to the ICC.  In the case of states that are not parties to the ICC, there is a general obligation to assist international criminal tribunals fulfill their work, under customary international law (albeit she doesn’t expressly refer to it). 

Thus, she recommends a draft Art. 18 in the proposed Articles on immunity of State officials from foreign criminal jurisdiction in this wise:  “The present draft articles are without prejudice to the rules governing the functioning of international criminal tribunals.”

Elsewhere, I have written about the relevance of the al-Bashir ICC Chamber ruling in regard to the bloody drug war launched by President Rodrigo Roa Duterte.


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Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic

Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic, advanced unedited version – CCPR/C/128/2, April 24, 2020
1. A number of States parties to the International Covenant on Civil and Political Rights have notified in recent weeks the Secretary General of the UN pursuant to article 4 of the Covenant about emergency measures they have taken or are planning to take with a view to curb the spread of the Coronavirus pandemic (COVID-19), in derogation from their Covenant obligations. It has been brought, however, to the attention of the Committee that several other States parties have resorted to emergency measures in response to COVID-19 in a manner seriously affecting the implementation of their obligations under the Covenant, without formally submitting a notification of derogation from the Covenant. The Committee calls on all State parties which have taken emergency measures in connection with the COVID-19 pandemic that derogate from Covenant obligations, to comply without delay with their duty to provide immediate notification to the Secretary General of the UN, if they have not done so yet.
2. The Committee is of the view that in the face of the COVID-19 pandemic, States parties must take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction, and it recognizes that such measures may result in certain circumstances in restrictions on the enjoyment of individual rights guaranteed by the Covenant. Furthermore, the Committee acknowledges that States parties confronting the threat of widespread contagion may resort, on a temporary basis, to exceptional emergency powers and invoke their right of derogation from the Covenant under article 4, provided this is required to protect the life of the nation. Still, the Committee wishes to remind States parties of the requirements and conditions laid down in article 4 of the Covenant and explained in the Committee’s General Comments, most notably in General Comment 29 on States of Emergency (2001), which provides guidance on the following aspects of derogations: (1) official proclamation of a state of emergency; (2) formal notification to the Secretary General of the UN; (3) strict necessity and proportionality of any derogating measure taken; (4) conformity of measures taken with other international obligations; (5) non-discrimination; and (6) the prohibition on derogating from certain non-derogable rights. In particular, States parties must observe the following requirements and conditions when exercising emergency powers in connection with the COVID-19 pandemic:
(a) Where measures derogating from the obligations of States parties under the Covenant are taken, the provisions derogated from and the reasons for the derogation must be communicated immediately to the other States parties through the Secretary-General of the UN. Notifications by States parties need to include full information about the derogating measures taken and a clear explanation of the reasons for taking them, with complete documentation of any laws adopted. Additional notifications are required if the State party subsequently takes further measures under article 4, for instance by extending the duration of a state of emergency. The requirement of immediate notification applies equally to the termination of the derogation. The Committee considers the implementation of the obligation of immediate notification essential for the discharge of its functions, as well for the monitoring of the situation by other States parties and other stakeholders.
(b) Derogating measures can deviate from the obligations set out by the Covenant only to the extent strictly required by the exigencies of the public health situation. Their predominant objective must be the restoration of a state of normalcy, where full respect for the Covenant can again be secured. Derogations must be limited, as much as possible, in respect of their duration, geographical coverage and material scope, and all measures taken, including sanctions imposed in connection with them, must be proportional in nature. Where possible, and with a view of the need to protect the life and health of others, States parties should replace COVID-19-related measures that prohibit activities relevant to the enjoyment of rights under the Covenant with less restrictive measures that allow such activities to take place, while subjecting them to necessary public health requirements such as physical distancing.
(c) States parties should not derogate from Covenant rights or rely on a derogation made when they can attain their public health or other public policy objectives through invoking the possibility to restrict certain rights, such as article 12 (freedom of movement), article 19 (freedom of expression) or article 21(the right to peaceful assembly), in conformity with the provisions for such restrictions set out in the Covenant, or through invoking the possibility of introducing reasonable limitations on certain rights, such as article 9 (right to personal liberty) and article 17 (right to privacy), in accordance with their provisions.
(d) States parties cannot resort to emergency powers or implement derogating measures in a manner that is discriminatory, or which violates other obligations they have undertaken under international law, including under other international human rights treaties from which no derogation is allowed. Nor can States parties deviate from the non-derogable provisions of the Covenant – i.e., article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation), article 15 (the principle of legality in the field of criminal law), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion) – or from other rights which are essential for upholding the non-derogable rights found in the aforementioned provisions and for ensuring respect for the rule of law and the principle of legality even in times of public emergency, including the right of access to court, due process guarantees and the right of victims to obtain an effective remedy.
(e) In addition, States parties cannot derogate from their duty to treat all persons, including persons deprived of their liberty, with humanity and respect for their human dignity, and they must pay special attention to the adequacy of health conditions and health services in places of incarceration, as well as to the rights of individuals in situations of confinement, and to the aggravated threat of domestic violence arising in such situations. Nor can States parties tolerate, even in situations of emergency, the advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence, and they must take steps to ensure that public discourse in connection with the COVID-19 pandemic does not constitute advocacy and incitement against specific marginalized or vulnerable groups, including minorities and foreign nationals.
(f) Freedom of expression, access to information and a civic space where a public debate can be held constitute important safeguards for ensuring that States parties resorting to emergency powers in connection with the COVID-19 pandemic comply with their obligations under the Covenant.

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Filed under Human Rights, ICCPR, International Law, Public Interest, Uncategorized

On Law and History beyond Historicism

It is a trivial truth that legal history is not economic history or art history.

For ontological historicism, however, there is an immediate problem: what criterion would permit the distinction of these several domains of investigation? Whatever way you look at it, the criterion itself can never be just historical. Without a concept of law, one cannot practice legal history. Although that concept, in its subjective theoretical character, will have a history of its own, nevertheless as law concept it inevitably tries to grasp in theory the constant modal structure which guarantees the juridical character of legal phenomena.

Anyone who thinks that the legal historian has constantly to adapt his concept of law to the different popular opinions about law, which arise in the various periods he studies, has not yet understood much of the problem we are examining. In the first place, the concept of law is an articulated scientific concept that depends on theoretical analysis of the different modal aspects of society. Popular conceptions of what is just and unjust are not theoretical concepts about the juridical nature of legal life. Even if it were the case that a given legal system had originated from popular convictions, this could not in any way be true of the modal structure of the law itself.

Besides in the second place reference to different popular standards of what is just and unjust, presupposes the legal historian has a concept of law that he could not have derived from those popular conceptions. Only with the help of his law concept can the legal historian distinguish the legal opinions of a people at a given time from their economic, moral or credal convictions, because in the relatively problematic popular consciousness they are never theoretically differentiated from legal convictions.

– From Law and History, Herman Dooyeweerd

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A common good constitutionalism?

Here’s a libertarian originalist response to Adrian Vermeule’s catholic integralist common good constitutionalism, which may be summarized in the following lines of the essay –
“That’s why a constitution in a pluralist society should be limited to provisions that gain a supermajoritarian consensus. Vermeule’s essay should remind left-liberals that abandoning originalism permits judges to impose policies they will hate, should the ‘wrong’ judges get in power.”

I for one do not believe in a theory-less constitutional interpretation;the constitution is a battleground of ideas of the ideal political ordering on many levels.  The very question of what constitutes the common good invites a clash of perspectives.

Our constitution itself is an interesting mishmash of liberal, social, and Christian ideas of constitutional ordering.

Yet it is true that more often than not, theory only goes to the foreground in the big order questions (the “construction zone” referred to in the essay); otherwise, constitutional interpretation is run-of-the-mill textual reading in the “zone of interpretation”– and this doesn’t mean theory is not involved in the deliberations. It is, but only in the background (though I won’t consider the issue of whether the President can make midnight appointments a simple textual exercise).

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Filed under Common Good, Constitution, Constitutionalism, Free Expression, Freedom of Religion, Legal History, legal theory, martial law, Philippines, political theology, Politics, Principled Pluralism, Public Interest, Uncategorized

Suing China before the ICJ over COVID-19

Peter Tzeng of Foley & Hoag (the law firm behind our victory against China in the SCS arbitration) writes this excellent thought piece on suing China before the International Court of Justice.

We all know China’s usual stance on international litigation” : stay away from it, when it goes against your interest. And because state-to-state litigation in international law is pretty much a mirror of its largely consent-based system, the challenge is to find exceptional grounds against the general rule.

Here Tzeng discusses possible grounds for compulsory jurisdiction within the World Health Organization Charter, notably Article 75, which provides: “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice. He links here too an opinion piece I wrote on the question last March 22 for the Philippine Daily Inquirer, pointing to China’s abject failure to provide timely notification on the outbreak under the World Health Organization International Health Regulations (2005).

I would add a “catch-all” (and admittedly novel) argument to his proposal, under the law of state responsibility: that given the scale and effects of this pandemic — nearly all 193 countries affected, so far — perhaps an argument can be made from general international law that China has no choice but to arbitrate (cf Art. 42 of the ARSIWA).

The safety, security and health of the world is a fundamental and common interest of nations that a breach in IHR (2005) obligations triggers compulsory jurisdiction.

After all, its intentional and willing breach of such obligations under Art. 6 and 7, given the nature of the contagion, resulted in mass deaths around the world, and counting, not to mention massive disruptions in the economic, social, political, and religious life of billions around the world.

I will expound on this approach in another post.

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Filed under China, COVID-19, International Court of Justice, International Law, South China Sea, State, State Responsibility, Uncategorized, WHO