Alternative Facts of Dialectical Thought (Brandys Redux, No. 2)

0327-06-brandys-kazimierz-1982I first posted about my re-reading of the journals of the late Polish dissident Kazimierz Brandys here.

In this day and age of “alternative facts”, it’s interesting to read an entry in his journals (p. 96-97) about what passed for such in his own time. In 1948, as a young Socialist, he and other Polish writer, the poet Konstanty Galczynski, were invited to Russia to attend a commemoration of the October Revolution.

Arriving in the nick of time to the Bolshoi Theater where the ceremonies were being held, he and his compatriot were shown to their seats as the flashbulbs of cameras burst one after the other; he could very well remember that there were four rows of seats up on the stage, with 12 people on them. Stalin was absent, but for his huge portrait in the backdrop. Molotov was presiding on the podium. Brandys recognized a few Politburo men on the first row — Mikoyan, Boroshilov. On the second row, he could not miss Marshal Budeny’s distinctive black moustache. The third and fourth rows were occupied by less familiar faces, “people wearing dark suits and uniforms.”

He writes on:

I saw it all quite clearly with Molotov standing  at the podium, lit by flashbulbs. He spoke for over an hour, stuttering each time he said Stalin’s name: “St-St-Stalin.” During the entire speech, the stage, the red table, and the four rows of the presidium were before my eyes…after the meeting, we were taken back to our hotel. We ate dinner; then Galcznyski and I fell asleep on the wide double bed. I was up first in the morning, awakened by a rustling sound at the door. Still Sleepy, I jumped out of bed and noticed the edge of a paper that had been slipped under the door. It was a copy of Pravda, redolent of fresh ink.

Most of the front page was taken up by a photo showing the opening of the commemorative meeting: Molotov at the podium, the presidium table with Malenkov in the middle….I scrutinized the photograph. There were only two rows of chairs behind the table; the third and the fourth had vanished, replaced by a uniformly dark background. I was unable to grasp what the photograph was presenting. The truth? A fiction? both? Or was I seeing things?

I finally woke up Galcynzski and handed him the paper. Neither of us knew what to think.

When the two of them returned to Poland, they went to see the poet Adam Wazyk, to seek his counsel. Wazyk had spent the war in Russia; surely he knew more about the Russian mindset than both of the. And so, they handed to them the offending copy of Pravda as the poet sat in the editorial offices of the newspaper Kuznica (The Forge).

The poet’s response:

He looked at me with all the dignity of a Siamese cat and asked me just what I wanted to know and what I did find so surprising. I told him that there had been a third and fourth row, and so why weren’t they in the picture?

“That’s simple,” said Wazyk. “The people in the third and fourth rows still don’t deserve to be seen in an edition of several million copies.”

All right then, I persisted, but that means that the photograph isn’t true.

“Politically it is true,” Wazyk cut me short dryly.

That ended our conversation.

One of my first lessons in dialectical thinking.

In case you forgot, Pravda is the Russian word for truth.

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Filed under Free Expression, Post-Truth, Alternative Facts, Communism, Brandys,, Uncategorized

Kazimierz Brandys Redux, No. 1

0327-06-brandys-kazimierz-1982I’ve taken recently to re-reading the journals of the late Polish dissident writer Kazimierz Brandys (A Warsaw Diary, 1978-1981). 

An entry from October 1978, p. 11-12:

The contemporary world does not belong to the Age of Reason; it is convulsed by a desire for faith. As a layman living outside the church, my epoch ages me. I feel an anachronism in it, sometimes alien, superfluous. Especially since I usually felt distaste for the type of person and the kind of life that express themselves through religion. I was a student when I halted in front of the steps of a rather old temple, asking myself, Should I turn back or enter? I entered. For me socialism was not a confession of dogmatic faith; I went in because it was battling against a barbaric church that was hostile to me — fascism. Socialism’s nineteenth-century past had earned my respect, attracted me to its legends, the lives of it heroes, its ethical tension. And also by its modest liturgy, it’s simple ways. A table, a chair, a speaker, a discussion. And so, I thought I professed no dogmas. Already I had a gospel. It is without irony that I think of this today. And I have no intention of reducing the significance of socialism in my life. And not only in my life. In history, culture. If i had to name the most important phenomena in our era, I would say the Roma Catholic Church, the Reformation, and socialism. I would further add that these constitute the historical trinity that delineates my understanding of Christianity.

Thus, when saying”church”, I am using the word in a broader sense. For me, it includes ideological orders and organized state religions. Today, the universal Catholic Church is carrying out its mission in a world terrorized by new inquisitions and crusades. The churches of anarchism and nationalism are killing people. The churches of the totalitarian states are killing life itself. Both the former and the latter use torture. And both have their believers and unbelievers. Society seems to be conscious of the religious character of contemporary life [emphasis supplied].

————-

Human beings are, in the most fundamental of senses, religious. We are homo adorans. We exhibit, possess, are oriented and answer to, ultimate commitments.

*inset photo by Czeslaw Czplinski

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Aquinas on Tyrants and Tyrannicide

periander_vat2Aquinas’ De regno ad regem Cypiri (Address to the King of Cyprus, circa 13th C.) : interesting to read this short work written by Thomas Aquinas, especially the section on tyrants and tyrannicide, which I find to be a fertile source for contemporary political thought and discussion. A special note to make is that for Aquinas, a monarchy is the best political arrangement, hence the discussion is centered on the king.

Aquinas is reluctant to endorse private ventures to kill a tyrant; at the most, he appears to allow an uprising led by public authority as a last resort (I suppose, to give it a cloak of legality). Calvin follows this line, as do the Dutch Calvinists (for example, getting William of Orange to lead against Spanish tyranny), but I am not sure if Calvin et al acknowledge Aquinas as their source for their position.

Too, one thinks of the failed attempt to assassinate Hitler that was joined by the Lutheran theologian Diectrich Bonhoeffer, which seems to meet Aquinas’ requirement, as it was hatched by a small group that involved military officers and a couple of civil servants, who thus might qualify as public authorities. Yet Aquinas gives sufficient caution against such an adventurism, citing Roman examples when the ouster of a tyrant led to worse tyrannies. (Think of Pol Pot too!)

He also appears to provide a basis for later social contract theories here: ” If to provide itself with a king belongs to the right of a given multitude, it is not unjust that the king be deposed or have his power restricted by that same multitude if, becoming a tyrant, he abuses the royal power. It must not be thought that such a multitude is acting unfaithfully in deposing the tyrant, even though it had previously subjected itself to him in perpetuity, because he himself has deserved that the covenant with his subjects should not be kept, since, in ruling the multitude, he did not act faithfully as the office of a king demands.”

As earlier stated, Calvin and the Dutch Calvinists appear to echo this Thomist idea of revolt led by public authority; The English Puritans also argue that the governed have the right to revolt against unjust leaders. The American revolutionaries who rose up against the British re-state the same idea, by way of the English social contractarians, notably John Locke.

Ideas have legs, indeed? (Also serves to show Ecclessiastes is right — there is nothing new under the sun. Human nature, being what it is, often falls victim to the same weaknesses and bad habits). Hence the relevance of the battle cry — ad fontes!

Finally, Aquinas allows that tyrants may have been allowed by God to rise to power as punishment for the sins of the people. Now we Filipinos should start asking ourselves whether the present darkness is a punishment or a reward.

 

(photo of the Tyrant Periander of Corinth’s  source)

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Itu Aba: An Inside Track

itu_aba_ge1I guess it’s inevitable that the issue of Itu Aba would surface yet again in the wake of the Philippines’ resounding victory in the South China Sea Arbitration. As I noted in that earlier post detailing what we won before the Arbitral Court, the island — occupied by Taiwan — was a sore point between Justice  Francis Jardeleza (and his successor at the Office of the Solicitor General, Prof. Florin Hilbay), and Justice Antonio Carpio. The latter (with Chief Justice Sereno)  even went as far as opposing the former’s appointment to the Supreme Court because of  Jardeleza’s stance when he was Solicitor General. For background, click here and here.

A few days ago, Rappler came out with a piece recalling the Jardeleza-Hilbay tack on their alleged Itu Aba “miscalculation.”

Hilbay, now back at his old professor’s perch at the UP College of Law (funny, Jardeleza, Carpio and Sereno all served as professors at the College at some point in their legal careers), wrote a retort to Rappler’s rap. Rappler duly reported on his retort here.

This morning, I received a text from Prof. Hilbay expressing his reservations about the treatment his written statement had received in the Rappler news item. I  obtained a copy of his statement and am posting it below, for your own benefit and appreciation:

(A PDF file of the statement and the Memorandum mentioned in it may be downloaded here).

 

21 July 2016 UP College of Law

Response to Ms. Hofileña and Ms. Vitug
By: Prof. Florin T. Hilbay, former Solicitor General (Philippines v. China)

I respond to Ms. Hofileña’s and Ms. Vitug’s Rappler piece accusing me (and Justice Francis Jardeleza) of “miscalculation.”

First. I do not suppose the writers consider themselves experts in the law of the sea, much less official participants with personal knowledge of the West Philippine Sea litigation. I am therefore amused at the accusatorial tone they have taken on previously undisclosed legal strategy which, in fact, resulted in an overwhelming victory. Whether they are adopting the opinion of any person officially or unofficially connected with the case is also not stated. I am therefore left to respond to conclusions based on gossip, even as they were written by people I consider respectable journalists.

Second. In the coming months and years, the nation will have an opportunity to look under the hood of this magnificent legal accomplishment. Thankfully, given the positive legal result, the challenge will be about proper documentation and accurate narration of how this result came about, not about who should be blamed for what. The room is big enough and the pages of history books (or even Facebook) sufficiently spacious to toast the contributions of women and men privileged enough to have had a direct or indirect connection with the case. The bucket can accommodate decent human beings, and there’s no need to reduce oneself into a crab.

Third. Given the magnitude of this case and the multi-layered controversies surrounding it, I consciously adopted a policy of keeping documents and having multiple witnesses. This should eliminate erroneous factual claims and reduce subjective elements in the narration of the history of this case, which I intend to write. I saw myself simultaneously as a participant and an observer. As the former, my goals were to achieve an efficient win, reduce the impact of potential losses, and protect the President. As the latter, I was an excited case biographer.

Fourth. I saw the Itu Aba issue as belonging to the baskets where there was a need to reduce the impact of a potential loss and protect the President. By now, people should be aware that the Itu Aba issue is one where the entire team’s level of confidence was not at its highest. This explains why that feature was not included in our “complaint” in the first place. My discomfort with the treatment of Itu Aba figured prominently in a 2014 Memorandum I sent to Executive Secretary Paquito Ochoa, Jr. and Chief Presidential Legal Counsel (now Justice) Alfredo Benjamin Caguioa. This should be remarkably self- explanatory, and an interesting read.

I invite Ms. Hofileña and Ms. Vitug to reveal any other 2014 “official communication” from me to Malacanan.

Fifth. Ms. Hofileña and Ms. Vitug have a wildly mixed-up sequencing of events, which is to be expected from those who do not have official documents or had no direct and personal knowledge of events. Let me take the cudgels for them on one critical decision- point.

In the hearing on the merits last November 2015, the Tribunal made the Philippines grapple with a hypothetical: what happens if a feature (Itu Aba) were declared an island under UNCLOS (which therefore generates an Exclusive Economic Zone of 200 nautical miles from its coastline)? The original, proposed answer was that the Tribunal would retain jurisdiction to control, by some means, the conduct of the parties “pending agreement on delimitation or joint development arrangements.” I thought this was both novel and strange. This was the first time this theory was broached, and the proposal to softly offer “joint development arrangements” if we lose on the Itu Aba issue was problematic.

Witnesses to the agent’s discussion with foreign counsel, assuming they’re not deliberately forgetful, will remember two important points I repeatedly emphasized—

1) Commit to the wave. I did a short lecture on how surfers are able to catch big waves. Itu Aba is a wave we absolutely needed to catch, and we should not signal to the Tribunal that we think we might lose. We needed to focus our firepower on winning that issue instead of sheepishly offering “joint development arrangements” for when we lose. We should not, therefore, telegraph our punches.

2) Avoid impression of selling out. The Philippines, in this litigation, should not be seen as offering “joint development arrangements” as a second option or a compromise. For myself, I was particularly worried about being seen as inserting a very specific economic incentive as trade-off for losing the Itu Aba question. I told everyone “I will not be the Solicitor General who sold this case to China.”

Those who were in that meeting were former Secretary of Foreign Affairs Albert Del Rosario, Justice Francis Jardeleza, Justice Antonio Carpio, Ambassador Jaime Ledda, Deputy Executive Secretary Menardo Guevarra, and the entire contingent of Foley & Hoag.

In the aftermath of that meeting, foreign counsel strengthened (even more) the arguments on Itu Aba, dropped “joint development,” and recast the Philippines’ post-loss scenario to not make it appear we were not confident about winning Itu Aba.

At the conclusion of the hearings, Paul Reichler and Bernard Oxman (who delivered the wonderfully powerful speech for that hypothetical) thanked and congratulated me for my intervention. On my flight back home to Manila, I emailed Prof. Oxman: “I am serious when I tell you that your speech on the third day will probably be remembered as one of the most important speeches on the South China Sea disputes, and I’ll surely remind everyone of that fact.”

I think we won the Itu Aba issue because everyone from the Philippine side and the foreign counsel’s side was professional enough to realize that our occasional disagreements in this case could lead, rather thankfully, to compromises over our strongly held opinions. Fortunately, the brew was sufficient to convince the Tribunal that our arguments on the various submissions were correct.

Moving forward, I think the wise attitude here is to celebrate the victory, not malign anybody’s contribution. Justice Jardeleza, always fond of quoting JFK, would usually remind me that victory has a thousand fathers, but defeat is an orphan.

I couldn’t care less if this victory had a million parents.

-30-

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Filed under International Law, ITLOS, Nine-Dash Line Claim, PCA, Philippines, South China Sea, Uncategorized, UNCLOS

The Philippines’ Right to Self-Determination and the South China Sea Question

ONE WAY to frame the Philippine claim in regard to areas in the South China Sea is from the right to self-determination for its own people as to the use of natural resources that are rightfully theirs. As held in the East Timor case, such right is peremptory and invokes erga omnes omnium (universal) obligations. This is from the point of view of state responsibility reinforcing erga omnes partes (treaty) obligations.

Thus, under the law on state responsibility, states not party to the dispute in question have an obligation to respect the territorial integrity and sovereign rights of the Philippines; they are legally bound to refuse to recognize the Chinese Nine-Dash Line as lawful, and to refrain from recognizing or entering into any agreements with China for the unlawful exploitation of natural resources in the Philippine EEZ and the Continental Shelf.

There is also the positive duty on the part of all states to cooperate to put a stop to such unlawful acts. Even non-parties to the UNCLOS are bound by such an obligation, it being (jus cogens) peremptory in nature.

The Philippines’ entitlement to the fruits of such a right has already been confirmed and upheld by the landmark judgment of the Permanent Court of Arbitration in the South China Sea Arbitration case.

 Lawyer Joel Butuyan, in his Philippine Daily Inquirer column and Justice Antonio Carpio in his public statements have already pointed to the possibility of suing third parties conniving with China in exploiting resources within Philippine EEZ and the Continental shelf within the UNCLOS regime. 

The law on state responsibility solidifies the Philippine claim against such a situation through the legal effects of the right to self-determination. This is general international law complementary to the Law of the Sea regime.

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Filed under China, International Law, ITLOS, Nine-Dash Line Claim, Scarborough Shoal, UNCLOS

The Philippines’ Nicaraguan moment

By Romel Regalado Bagares*

 

PCAAnd so the Philippines has just had its Nicaraguan moment as it clinched a unanimous decision in most of its 15 arbitral claims against Chinese “Nine-Dash Line” expansionism in the South China Sea.

The Permanent Court of Arbitration, in a landmark ruling released July 12 on the case In the Matter of the South China Sea Arbitration (it’s formal name, also referred to here as the Philippine Case), invalidated China’s claims over pretty much of the maritime areas in the region.

The Arbitral Court also clarified in favor of the Philippines the status of many features in the contested Spratly islands and Scarborough Shoal with both scientific and legal criteria, in relation to a resource-rich Exclusive Economic Zone (EEZ) and Continental Shelf.

The win recalls an earlier and similar David versus Goliath seminal ruling by an international tribunal, the case filed by Nicaragua against the United States in 1984, which was decided by the International Court of Justice in 1986. Here, the United States was sued by Nicaragua before the World Court over the former’s promotion of Low Intensity Conflict and direct military action in its territory through the mining of its harbors. The ICJ ruled in Nicaragua’s favor against its giant legal opponent.

Key wins for the Philippines

For the most part, the PCA’s definitive clarifications agreed with the Philippine position; but where it did not, the country still came away the winner. Thus, the following important takeaways from the Arbitral Award:

  • Historic rights to living and non-living resources in the South China Sea are incompatible with the maritime entitlements provided in the 1982 UN Convention on the Law of the Sea, insofar as these fall within the Exclusive Economic Zone (EEZ) of other States in the region. What is doubly significant is that the Arbitral Tribunal also found evidence that consistent with the language of the UNCLOS itself, the Chinese understanding and practice of historic rights as to the Nine-Dash Line does not pertain to historic title to land or maritime areas, which would amount to a claim of full sovereignty, but only to “historic rights short of title.” As the UNCLOS superseded any historic rights, or other sovereign rights or jurisdiction, in excess of the limits it imposes, the Nine-Dash Line claim cannot survive the treaty’s maritime regimes. In this way, the Arbitral Court also made short shrift of Chinese arguments that the issues brought before it by the Philippines were among those it had made reservations about as far as the application of the Annex VII compulsory dispute settlement mechanism of the UNCLOS is concerned. It bears stressing also that the Arbitral Court deals only with the application and interpretation of the provisions of the UNCLOS and is not competent to adjudicate issues of ownership of disputed islands.
  •  Mischief Reef (Panganiban Reef) and Second Thomas Shoal (our Ayungin Shoal where we have grounded the BRP Sierra Madre as our forlorn if rutted outpost) –these being low-tide elevations as we had argued– are part of the Philippines’ Exclusive Economic Zone and Continental Shelf. China cannot prevent the Philippines from exercising its sovereign rights over waters and features found within its EEZ.
  • Mischief Reef being part of the Philippines’ EEZ and Continental Shelf, China has no business reclaiming it and building artificial islands over it. Moreover, no amount of construction by China can transform low-tide elevations or rocks into full-blown natural islands able to generate all the maritime entitlements under UNCLOS.
  • The other features in the Spratlys, namely Fiery Cross Reef, Johnson Reef, McKeenan Reef, and Gaven Reef (North) were held to be rocks unable to independently sustain human habitation or economic life and entitled only to a 12-nautical mile territorial sea. Meanwhile, Hughes Reef, Gaven Reef (South) and Subi Reef were held to be low-tide elevations not capable of appropriation by China. Thus, both sets of reefs do not and cannot generate any EEZ for China.
  • Scarborough (Panatag) Shoal is no more than a group of rocks jutting out of the water at high tide, able only to generate a 12-nautical mile territorial sea. However, the Arbitral Court said that the area is subject to traditional or artisanal fishing rights for fishermen from the Philippines, China (and Taiwan) and Vietnam. This is without prejudice to some future determination of who owns the Shoal, a question not within the competence of the Arbitral Court to decide. China violated these traditional fishing rights when it barred Filipino fishermen from the Shoal.
  • In a bit of a surprise (may be not, given the scientific side to it), the Arbitral Court ruled that none of the high-tide features in the Spratlys –including our Pag-asa (Thitu) island in the Kalayaan island group — can sustain human habituation or economic life on their own in their natural condition. The Taiwan-occupied Itu Aba itself, at one point considered a “game changer” in the proceedings and a contentious issue between Associate Justice Francis Jardeleza and Associate Justice Antonio Carpio – two members of the Philippine legal team – is technically a rock. Thus, none of the islands can generate anything beyond a 12-nautical mile territorial sea.
  • Following this, none of the features that mattered for the Philippines, whether low-tide elevations or high-tide formations, can generate maritime entitlements in favor of China or that would immediately require a delimitation of boundaries, which situation would be beyond the Arbitral Court’s jurisdiction. 
  • The Court rejected the Chinese position that the Spratlys is one archipelago generating as a whole its own territorial sea, contiguous zone, continental shelf and EEZ. This may prove to be an important factor if and when the question of who owns which island in the island chain is actually submitted to another international arbitration proceeding, this time, under principles of general international law. It bears noting that in its 2009 Baselines Law – seen by critics as the country’s waiver of its historic claims to title under the 1898 Treaty of Paris – the Philippines also treated the islands in the Spratlys under its control as belonging to a regime of islands under Art. 121 of the UNCLOS.
  • The Arbitral Court held that Chinese incursions in the Reed Bank area (Recto Bank for the Philippines, where oil exploration rights had been granted by the Philippine government) violate the Philippines’ sovereign rights over its Continental Shelf.
  • Under the UNCLOS and relevant treaties, there is an obligation on the part of states to protect the marine environment from degradation as well as to ensure safe marine navigation. The PCA found that the Chinese government tolerated and protected Chinese fishing vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other features in the Spratly Islands. At various times, China was found to have also engaged in unsafe marine navigation vis-à-vis Philippine ships, thus violating relevant treaties to which it was a party stipulating best navigational practices. It also held that China has engaged in irreversibly destructive island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef. These acts and omissions violated China’s obligations under UNCLOS to protect the marine environment.

The Philippines’ Nicaraguan Moment

What the Nicaragua case (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) had done for the international law on the use of force and the threat of force, the Philippine Case has just did for the Law of the Sea in many key areas. It established definitive rules on such areas as the legal status of historic rights in relation to the maritime entitlements under the UN Convention on the Law of the Sea, artificial and natural islands, low-tide elevations, responsibility for environmental damage, safety in marine navigation, and traditional fishing grounds as against the EEZ.

The Arbitral Award is yet the most comprehensive in scope since the International Tribunal on the Law of the Sea began hearing procedures under a compulsory dispute settlement mechanism of ANNEX VII of the treaty, which took effect in 1994.
The five-member arbitral tribunal was convened in 2013, comprised of some of the world’s leading subject-matter authorities. Presided over by Judge Thomas A. Mensah of Ghana, a former President of the International Tribunal for the Law of the Sea in Hamburg, Germany, it included three of the sitting judges on that court, namely Judge Jean-Pierre Cot (France), Judge Rüdiger Wolfrum (Germany) and Judge Stanislaw Pawlak (Poland), and Professor Alfred H. A. Soons, the former director of the Netherlands Institute for the Law of the Sea.

Uncanny parallels and ironies

The uncanny parallels and ironies in the two leading cases are a-plenty, although they concern by and large different areas of international law.

Not to be missed is the fact that Foley Hoag, the Philippines’ lead counsel in the South China Sea Arbitration is the same American law firm that won for Nicaragua respect in the world stage in its legal battle against the United States at the height of the Cold War. Both cases involved a behemoth in world politics – the United States in the 1986 case, China in the 2016 case.

The first case was filed over American intervention in a country that had turned communist and had repudiated ties with a former patron; the second case involved a communist state’s Post-Cold War ambitious and creeping occupation of a wide expanse of maritime territories encompassing some of the world’s busiest sea lanes.

In the Nicaragua Case, although the United States participated in the Jurisdictional Phase, it disengaged from the proceeding as it went to the Merits. In the South China Sea Arbitration, China formally stayed away from the proceedings from Day One, calling it illegal (but informally put forward its position to the Arbitral Court, including writing individually its members as well as publicizing a position paper it had commissioned to rebut the Philippine case).

In both cases, the Courts ruled on the most important questions that it had jurisdiction to hear the controversy brought before it, and decided in favor of the party that filed the suit. The United States in the first case and China in the second case would refuse to recognize the court judgment.

Yet in the Philippine Case, the United States vigorously supported its long-time ally and former colony in its campaign to invalidate China’s expansive Nine Dash-Line claims. This, even if it is not a party to the UNCLOS.

The Nicaragua Case would go on to be an important precedent for many other international law cases, reshaping fundamental ways in which the international community now understands the use of force and the threat of force as a means of settling international disputes under the UN Charter. Some scholars also credit the ICJ’s ruling in the de-escalation of many insurgency-related conflicts in the Latin American region.

In the South China Sea dispute, the US had called on China to follow a rules-based regime in settling the maritime conflict, when three decades earlier, it was not willing to abide by the binding nature of the ICJ’s judgment in the Nicaragua Case.

In fact, in the Philippine Case, the Permanent Court of Arbitration itself would cite the Nicaragua Case favorably in establishing why it had jurisdiction to hear the case, yes, even despite the non-participation in the proceedings of interested parties other than China.

On that question as well as on where and when a party is defaulting, the Arbitral Award is a masterful study of why international law cannot be allowed to be held hostage by the refusal of a state – a superpower at that in this case – to participate in a proceeding that concerns communal interests.

The independence of international tribunals is immensely important in the legitimacy of their rulings. The South China Sea Arbitration, as does the Nicaragua Case, shows that international law – contrary to what the Marxist theorists have put forward in the past, can be divorced from the politics of naked power.

It is likely that scholars and international tribunals would mine the Arbitral Award’s nearly 500-page carefully argued ruling on the Merits as a bible of sorts on the UNCLOS for many years to come.

The way forward?

The ICJ’s first female judge, Prof. Rosalyn Higgins, defines international law as a “normative process of authoritative decision-making.” By this definition, the Arbitral Award is already a big step towards legal stability in the South China Sea, removing once and for all the ambiguities that had attended the Chinese Nine-Dash Line claim since it was first advanced in the late 1940s.

By its very nature, the UNCLOS itself was designed to define in clear terms what maritime entitlements accrue to a coastal state, and the PCA, in the South China Sea Arbitration, has just made clear Chinese maritime claims cannot exceed what is available to it under the multilateral treaty.

As former University of the Philippines professor Harry Roque, now a legislator, argued, “the Court’s decision in this arbitral case will be its own enforcement mechanism.”

Roque, who taught international law for many years, said that a declaration by an impartial tribunal of the illegality of an act of a state in this case “has inescapable profound implications on what kind of values the international community wants to govern the way relations between and among states are conducted.”

Vociferous Chinese opposition to the Arbitral Award has evoked in Chinese constituencies memories of egregious past historical humiliations during colonial times. It has even kicked up the specter of a proxy war in which the real power behind the arbitration is the United States – the same country that refused the ICJ’s ruling in the Nicaragua Case thirty years ago. (The fact that the American law firm that gave a resounding defeat to the US in the Nicaragua Case is the same law firm that litigated the South China Sea Arbitration on behalf of the Philippines somehow blunts the charge).

Yet, on many levels, the Philippines in the South China Sea Arbitration may be better situated than Nicaragua was when it won the ICJ ruling in 1986.

For one, many countries other than the United States have, from the beginning, supported the Philippine cause, including those considered as “specially affected states” in international law.

Too, major European powers that supported the American veto against the ICJ’s Nicaragua Case ruling have expressed support for the Philippine arbitral case against China (as in the case of France and the United Kingdom). Indeed, many big players in the European Union have urged China to act according to international rules.

To a big extent, this is because other than territorial or maritime concerns, the South China Sea region straddles an area with enormous economic potential that goes beyond its actual geophysical reaches; it practically implicates the global economic order, as a third of the world’s shipping pass through the region.

There is also the fact that the Arbitral Award has far-reaching consequences – a “domino effect” – even if refused acceptance by China; this is because it without doubt also benefits other claimant states – again, members of the ASEAN – who reject Chinese claims that encroach on the maritime regimes they also claim for their own under the UNCLOS. The Arbitral body’s decisive demolition of the Nine-Dash Line claim has that effect.

Moreover, with a judgment embodying definitive rulings on what before were unclear problem areas as far as the features found in the South China Sea is concerned, the Arbitral Award presents a logical and legal basis for a proposed Code of Conduct among claimant countries belonging to the Association of Southeast Asian Nations.

Perhaps, at no other time than this has it become opportune for the ASEAN to deal collectively with the elephant in the room that is China. While it is true that China is a major trading partner for many of them, the regional body cannot ignore any instability in the region sparked by the increasingly intransigent Chinese coming at a time when the association is moving towards greater economic integration.

And at least with respect to the Scarborough Shoal, there is room for compromise, or the development of a common code for traditional fishing, as pointed to by the PCA in its Arbitral Award. This may also present a door of opportunity to engage non-state actors – civil society groups from all sides of the dispute – who had been sidelined by the realist politics that had taken over the public discourse over the South China Sea maritime conflict. Far too often, state-to-state confrontations leave out the very people who are the first to be affected by such conflict.

Paradoxically, it also gives the Philippines greater constitutional flexibility. The 1987 Constitution expressly allocates the resources in the country’s EEZ for the exclusive use of its citizens. It is however silent where resources in traditional fishing grounds are concerned.

In any case, its 2009 Baselines Law had carved out a regime of islands out of Scarborough Shoal; it is a designation that does not necessarily conflict with the Arbitral Award stating that the Shoal is but an outcrop of rocks, or an island complex unable to sustain human life or economic activity, not to mention that the Philippine Supreme Court had also already rejected a constitutional challenge to the new Baselines Law.

Thus, President Rodrigo Roa Duterte may very well be correct in his basic stance of renewed diplomatic ties with China –but only if he negotiates from the unprecedented position of moral and legal strength the PCA’s Arbitral Award has just given to us.

* Mr. Bagares has a law degree from the University of the Philippines and serves as Executive Director of the Manila-based Center for International Law, an NGO dedicated to the promotion of the Rule of Law in the ASEAN region through binding international legal norms. He also teaches public international law at the Lyceum Philippines University College of Law.

 

This essay first appeared in a slightly different form at Verafiles.org.

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Filed under Bajo De Masinloc, China, International Law, ITLOS, Nine-Dash Line Claim, PCA, Philippines, Scarborough Shoal, UNCLOS

On the new Japan-South Korean agreement on the Comfort Women

 

Malayalolas

by Harry Roque and Romel Regalado Bagares, counsel for the Malaya Lolas

Why is Japan settling the Comfort Women issue only with South Korea and not  with the Philippines or any other country whose citizens fell victim to the rapacious Japanese Imperial Army?

Are Filipinas raped and ravaged by the Japanese Imperial Army during World War II any less human than their South Korean counterparts?

And  what is our government doing about the case of the Filipino Comfort Women whose claims against Japan have remained pending?

We raise these questions in the wake of recent reports that the Japanese and South Korean governments have finally reached an agreement to settle the 70-year old issue of the South Korean comfort women – or, in the case of the latter, girls and women forced to have sex with Japanese soldiers from the 1930s until the end of World War WII.

According to the agreement the Japanese government will offer a one-time final apology and to pay 1 billion yen ($8.3m) to provide care for victims through a foundation.

While we would like to see details of this agreement  show an official acknowledgment of responsibility by Japan – because precisely, the previous apologies issued by Japan do not appear to be on behalf of the  State but were cast as if there was no official policy implemented to forcefully conscript Asian women as sex slaves – news of this agreement only makes the insult against Filipinas who suffered the same fate sharper and deeper.

It also underlines the Aquino government’s continuing refusal to abide by its obligation under international law to provide an effective remedy against its own citizens who had been brutalized by the Japanese Imperial Army during World War II.

The Filipino Comfort Women are dying one by one. Each day that they are ignored by their own government, any hope of official acknowledgment and reparations grows dimmer as the shadows of old age and mortality cast a dark pall on their faces.

They should not be used as pawns by states in the geopolitical controversies of the day,  as we fear is happening in regard to the Filipino comfort women. What we mean is that victims of horrendous human rights violations should not be used by our government as a leverage in its talk with Japan for support against China over the West Philippine Sea controversy.

Today, we hear of reports of more official Japanese government aid to the Philippines in the form of patrol boats to the Philippine Coast Guard and soft loans worth hundreds of millions of dollars for various infrastructure projects.

But these official aid initiatives will not erase Japanese official responsibility over the sexual slavery its own soldiers have subjected many Filipinas when they invaded the Philippines 70 years ago.

Background to the Malaya Lolas case

In 2004, the Center for International Law (Centerlaw) filed a petition in behalf of 70 plus members of the Malaya Lolas group, who survived the Mapanique, Tarlac siege by the Japanese Imperial Army during World War II. In the petition, the Malaya Lolas charged that they were victims of systematic rape and sexual slavery committed by the Japanese, and they asked the High Court to compel the Philippine government to espouse their claims against Japan. On April 28, 2010, the Philippine Supreme Court dismissed the petition.
The Supreme Court’s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism, it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War II have no further legal remedies.

A Motion for Reconsideration and a Supplemental Motion for Reconsideration were subsequently filed by the Centerlaw on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court’s ruling, penned by Justice Mariano Del Castillo, “made it appear that these sources support the assailed judgment’s arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition’s claims.”

On March 27, 2013, Centerlaw filed a manifestation asking the Supreme Court (SC) to consider a 2011 decision by the Constitutional Court of Korea on the issue of Korean Comfort Women in resolving the controversial Malaya Lolas case. This was noted by the Court in a resolution issued on April 11, 2013.

Centerlaw also filed a Motion for Leave to File Petition for Intervention on behalf of the European Commission on Human Rights (ECCHR). The Motion was denied by the Supreme Court stating that intervention can no longer be had once the case has been submitted for resolution.

In August 5, 2014, the Supreme Court denied the Motion for Reconsideration and Supplemental Motion for Reconsideration filed by Centerlaw on behalf of the Malaya Lolas.

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Filed under Comfort Women, Impunity, International Court of Justice, International Law, Malaya Lolas, Sovereign Immunity, State, War Crimes