Monthly Archives: June 2014

On the Chinese arbitral snub and new building spree in the West Philippine Sea

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its new slew of building projects on disputed reefs in the area backed by naval presence are “a serious and belligerent violation of” the UN Convention on the Law of the Sea (UNCLOS, outspoken Filipino legal academic told recent international law conference in Tokyo.

Speaking at the 5th Annual Meeting of the Japan Society of International Law at the Chuo University Law School last Sunday, University of the Philippines professor Harry L. Roque Jr. said that China’s refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratly’s constitutes a “serious breach of the UNCLOS since as a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention”.

Roque, who is also Director of the UP Law Center’s Institute of international Legal Studies, said that the international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the “constitution for the seas”.

“By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory,” said Roque.

Debunking the view expressed recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice that states that made declarations when they ratified the UNCLOS, China included, are deemed to have opted out of the dispute settlement procedure of the Convention, Roque noted that China’s subsequent reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures proves that China agreed to be bound by the procedure. “This means that China is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal,” Roque said.

More worrisome, according to Roque, is China’s recent resort to the use of force in bolstering its claim to the disputed territories.

It has been reported recently that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its maritime and naval forces to ward off any opposition.

Roque said these recent Chinese actions are “ill-distinguished conquests of territory through the use of force,” which is prohibited by both the UNCLOS and the UN Charter.

“These construction are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings”, Roque said.

Moreover, China has publicly declared that its actions are an implementation of a new defense maritime policy which envisions “Sea Denial Capability” in the West Philippine Sea by 2020 .

The Philippines is asking the International Tribunal on the Law of the Sea to declare that China’s nine-dash lines is illegal since it is not sanctioned by the UNCLOS.

The Philippine claim also asked the Hague -based arbitral tribunal that four “low-water elevations,” so-called because they are only visible during low tide, and where China has build artificial islands, be declared as part of the continental shelf of the Philippines, and that the waters outside of the 12 nautical miles of Panatag shoal be declared as part of the Philippine Exclusive Economic Zone.

Roque belied China’s claim that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. “Clearly, the three specific prayers of the Philippines involve interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, these are not the subjects of the Philippines claim, Roque added.

The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory. This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim. He likened the Philippine proceeding to that initiated by Mauritius against the United Kingdom. In this case, while it is also pending, the UK has argued that the dispute settlement proceedings of UNCLOS should not apply because the disputed maritime territory are generated by land territory.

The Japanese academic, Prof. NIishimoto Kentaro of Tohoku University, on the other hand, expressed reservations whether the Philippines could prevail in impugning China’s title to all four islands, which the Philippines claimed should form part of the Philippine continental shelf. At least two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan, and thus may not form part of the Philippine continental shelf, according to the Japanese academic.

He supported however the Philippines position on the nine-dash lines arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS. He characterized the Philippines position against the Nine-Dash lines as “very strong”.

Japan is also engaged in its own territorial dispute with China over Senkaku Island.

 

Prof. Roque’s power point presentation at the conference may be found in www.harryroque.com

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The nominalistic state: Bodin, Hobbes, Schmitt

Excerpts from a chapter of my long essay: In the modern era, the marked influence of nominalism in theorizing about sovereignty can be seen in the thought of the controversial leviathanGerman constitutional scholar Carl Schmitt, who, following Bodin, postulated that sovereignty is not a function of the general rule but of the exception; that is, that it is primarily a question of who exercises the power to make exceptions. Thus the famous first sentence in his short but illuminating treatise on political theology: “Sovereign is he who decides on the exception.”[1] For Schmitt, at the heart of the issue of who is the true sovereign is this:

the concrete application, and that means who decides in a situation of conflict what constitutes the public interest of the state, public safety and order, le salut  public, and so on. The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.[2]

Thus, when Schmitt says that the test of the existence of a state of necessity, of an emergency in fact “involves a specifically juristic element,”[3] he means exactly that – there can be no law limiting the discretion of the ruler to decide the point, or to declare who is an enemy of the state and who is not; in other words, the ruler is the law herself.

This indivisibility of the power to decide the exception from the power to decide what is lawful sets itself against the liberal constitutionalism of Schmitt’s day – one can immediately think of the doomed Weimar Republic – which sought to set in place a system of checks and balances in government designed to curtail the arbitrary exercise of power by the ruler.

Schmitt deploys the thought of Bodin and other seventeenth-century natural law scholars against that system, saying that sovereignty cannot tolerate a situation where at times it is the prince that rules and at others, the people (as when the prince must first consult the people before deciding in a situation of extreme urgency). Indeed, in his argument that only the sovereign has the “monopoly to decide,” Schmitt echoes[4] the nominalistic voluntarism of an earlier era founded on a revolutionary theological conception of the Divine Will: All law is “situational law.”

The sovereign produces and guarantees the situation in its totality. He has the monopoly over this last decision. Therein resides the           essence of the state’s sovereignty, which must be juridically defined correctly, not as the monopoly to coerce or to rule, but as a monopoly to decide. The exception reveals most clearly the essence of the state’s authority. The decision parts here from the legal norm, and (to formulate it paradoxically) authority proves that to produce law it need not be based on law.[5]

Thus Schmitt cites Hobbes in his formulation of sovereignty as pure and unbridled “political decisionism”: autoritas, non veritas facit legem.[6] Indeed, it was Schmitt who postulated that

[a]ll significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development – in which       they were transferred from theology to the theory of the state, whereby, for             example, the omnipotent God became the omnipotent law-giver – but also because of their systemic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is        analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed into the last centuries.[7]

 The omnipotent God become the omnipotent law-giver. It was, in Schmitt’s terms, a turn from the theological to the secular, but one that Milbank would say, was actually occasioned by the nominalistic turn in theological thinking itself, beginning with the Middle Ages, in the voluntaristic thought systems of Scotus and Ocham.

In an insightful and important piece exploring the theological roots of the concept of sovereignty Govert Buijs revises Schmitt’s original secularization thesis, saying that while indeed, the justification used for the political order shifted from the theological to the secular, sovereignty itself was not a “secularised” theological concept or rather “there seems to be a kind of back and forth between theological and political experiences.” [8]

The over-all result may well be a secularized political order, but while this secularization is in some respects theologically grounded, in other respects it is an unintended consequence of certain theological insights, and in still other respects a result of a quite purposive process of secularization. Implicitly following Milbank’s own intellectual trajectory, Buijs outlines how as a concept sovereignty was deployed to carry out the secularization of the political sphere.Buijs’ “archeology of sovereignty” uncovers the following “layers of meaning”:

The first element concerns unifying a realm and organising it into one political entity. The second element is the presence of one subject, one representative centre of power, one agent, who has his/her place vis-à-vis this entity, for example to issue laws. The third element of the concept of sovereignty concerns its voluntaristic overtones. Sovereignty is mostly couched in terms of a will, of an almost personal character. The fourth element is the territorial limitation. Compared to older symbolisms like the Sumerian King List…the modern notion of sovereignty seems rather awkward: the highest power, but only in a limited territory. It is somewhat like calling a person “world famous” in his own village.[9]

Here, again, nominalism identified with the theological thought of Scotus and Ockham has had three important implications on the spread of secularization in Western society.[10] The first is that nominalism led to a voluntarist conception of law and government, where both, formerly regarded as a reflection of divine reason, now came to be considered as matters based solely on an essentially arbitrary decision (quia voluntas est voluntas).[11]

This voluntarist element is fully present in the systems of Bodin and Hobbes, says Buijs. The consequences of the nominalistic outlook is especially “weighty”[12] in the author of the Leviathan, whose universe seems to be characterized entirely as a clash of wills now given absolute freedom.

This freedom expressed in unfettered will, Buijs notes, was previously unthinkable, inasmuch as the universe before them was conceived of as a closed rational order.[13] Second, there is now no avenue for appeal beyond the lawgiver. In Bodin,[14] this is especially prominent. While the human lawgiver is still bound by the laws of nature and divine law, he has become the only available standard, inasmuch as God has been turned into an inscrutable higher being to whom there can be no access. While nominalism made possible the criticism of the established order, it can only do so without an available higher standard to measure the existing order.[15] Hence:

The potentia absoluta does not provide for a standard to measure the actual order. He who has the power at the same time has the ius non appelandi. Hobbes, a self-proclaimed nominalist, articulated this in the very concise formula auctoritas, non veritas facit legem. So doubt about the existing order is the only thing left without there being a basis for this doubt in the (inner) experience of a superior order.[16]

The third consequence of nominalism is the rise of contractualism. While the theological version of nominalism still held to the covenant as an all-encompassing ontological category, its appropriation by Hobbes et al., called for its radical transformation involving the contract as a substitute.[17] While in the Judeo-Christian covenant, trust is the basis, in contract, fear of the consequences is the primary motivation. “So the contract symbol is the nominalist covenant washed in late-medieval and early modern fear. It is the mutually agreed ceasefire between otherwise inscrutable wills.”[18]

Buijs quotes Hobbes thus: “Fear and I were twins.”[19]

The sovereign exercises his rule “in the name of…(something higher)…” However, the distance between the sovereign and this higher authority is virtually abandoned, for no one else has access to this higher authority in order to “check” the claims of the lawgiver. God has become inscrutable, legibus solutus; He hides in the darkness of his potentia absoluta. He cannot be appealed to – and the same applies to the sovereign.[20]

Buijs’ account provides a philosophical explanation to Koskenniemi’s “pre-history” of international law, which challenges the standard account that puts the birth of modern international law in 1870 as a mere continuation of earlier efforts by the first thinkers and practicioners of the craft, “namely, to bind European sovereigns to a universal rule of law”[21] by developing a new idea of statehood opposed to the absolutist raison d’etat.[22]

In this prehistory, read at a commemorative colloquium on the Italian thinker Alberico Gentili, Koskenniemi continues the reconstructionist historical project inaugurated by his book The Gentle Civilizer; in fact, in this essay, the Finnish scholar argues, following a detailed study of French and German writers who theorized on the limits of the power of the Sovereign Prince or King, that contrary to standard histories,

[N]o continuous tradition of international legal thought existed from early modernity – Gentili, Vitoria, Grotius, Pufendorf, Vattel, however one wants to date the moment of inception – to the 20th century. What we read in standard histories, is a myth. Nineteenth international lawyers imagined a history to what they were doing because that was the habit of a historical age. What we have, instead, is a literature on the government of modern states that occasionally deals with the external aspects of government – war, treaties and diplomacy.

`But these are not understood as a “legal system” somewhere outside statehood, with the point and purpose of limiting the negative effects of State policy. Instead, they are part of a functional notion of territorial rule the point of which varied over [time] from “conservation” of the realm to the “perfection” of its people. The “functional” notion of sovereign power implied the presence of epistemic limits to State policy that provided ample room for debates about wise policy. But it did not presuppose (but rather rejected) the existence of an international normative order from which those principles could be deduced.[23]

Hence, Koskenniemi could also write that for the great German natural lawyer of the period, Samuel Pufendorf, the sovereign is simultaneously free of the law and bound by it at the same time. For Pufendorf, writes Koskenniemi, positive law as decreed by humans are but rules of the supreme sovereignty concerning the very things that subjects are bound to observe as matters of the welfare of the state. Meanwhile, the sovereign is also answerable to natural law, to promote the good of the people by creating the social conditions that make it possible for individual pursuits to be realized – a duty that is inherent to the meaning of sovereignty.[24] Koskenniemi explains further thus:

For Pudendorf and the whole system of reason of state, positive law cannot possibly constrain the ruler in his pursuit of salus populi. It is part of the definition of positive law to be an assessment by the sovereign of what is needed to bring it about. The potential danger of princely arbitrariness is met by Pufendorf through the distinction he makes between the prince’s private and his public will, and the way he reads the latter as normative because representative of the (enlightened) will of the population. This allows the social collectivity to emerge as the State at the centre of analysis, as the manifestation of sociality in political life.[25]

As Pufendorf has written, “it seems most suitable to define the state as a composite moral person whose will, a single strand woven out of many people’s pacts, is considered the will of all, so that it can use the strength and the faculties of individuals for common peace and security.”[26] Read from the lens of Buijs’ account of nominalism, this pre-history of international law simply meant this: whatever limits early thinkers placed upon the power of the Sovereign were what natural and divine law called for; yet it appeared that it was up to the Sovereign to say what these limits were.

Hence the Finnish scholar can validly argue that the French raison d’etat thinkers, far from arguing against the legal, actually believed that the Sovereign Prince was bound by it; except that the legal was identified with the Sovereign Prince, as expressed in Bodin’s firm belief that the ruler rises above custom and the fundamental laws of the realm, which he considered to be a higher constitutional principle. [27]

The Sovereign Prince was subject to one else but to the demands of his office and above all to God (and therefore to both divine and natural law, both of which are anyway emanations of the Divine, according to the theologies of the day). True, no else was above the Sovereign except God; but since God had become inscrutable, it was up to the Sovereign to say exactly what God demanded of the ruler. In other words, justice is what the Sovereign thought it was.

With the shift to a supposedly scientific, neutral and objective (but ultimately stoic) natural law that subsequent thinkers espoused, the notion of state sovereignty would become effectively “naturalized” and yes, “secularized.”

In fact, by the time of Louis XIV, Koskenniemi argues, jurists, “reaffirmed the divine right in a way that did away with their ability to articulate limits to Royal authority. Even as they followed Bodin by limiting absolute authority by reference to its function – the sovereign’s duty was to God and to his office – they rejected any institutional oversight as incompatible with it.”[28] This line of thought would serve as the foundation to legal ideas that put up the State as a distinct political entity, and the notion of “State interest” as an “overruling political ratio – a confessionally neutral justification for governmental action, connoting the interest of the system of territorial government itself.”[29]

 

(photo inset: the original graphic to Thomas Hobbes’ famous political treatise, The Leviathan) __________________________________

[1] Carl Schmitt, Political Theology: Four Chapters on Sovereignty 5(George Schwab, ed. 2006).

[2]Id. at 6.

[3]Schmitt, supra note 299 at 13.

[4] In fact, we can say Koskenniemi’s discussion of the pre-history of international law echoes the assertion by Schmitt that “ the seventeenth –century authors of natural law understood the question of sovereignty to mean the question of the decision on the exception.” Id., at 9. See IV Koskenniemi, Prehistory, infra note 319.

[5] Schmitt, supra note 299 at 13.

[6] Id. at 33

[7] Schmitt, supra note 299 at 36. That is, what is lawful is decided by the one who has the authority (the power ) and not by the one who possesses the truth (the lawful sovereign). On this point, see the essay of the independent Islamic scholar S. Parvez Manzoor at http://www.algonet.se/~pmanzoor/CarlSchmitt.htm <last visited Aug. 27, 2008).

[8] Govert Buijs, “Que les Latin appellen maiestatem”: An Exploration into the Theological Background of the Concept of Sovereigntyin Sovereignty in Transition 235 (Neil Walker, ed. 2003) [hereinafter, I Buijs, Concept of Sovereignty]. But Derrida follows Schmitt’s formulation. He says: It was in the beginning, a religious concept, that is, God, the Almighty, is sovereign…So here you have a concept which is in principle secularized, but for which the secularization means the inheritance of theological memory. It is a theological phantasm or concept. When for instance Carl Schmitt says that all the political concepts, all the concepts of the political, in the Western society are theological concepts secularized, that is what he means: that our culture lives on secularized sacred concepts, secularized theological concepts. Jacques Derrida, A Discussion with Jacques Derrida, 5 Theory and Event 49, (2001), quoted in Peter Fitzpatrick, “Gods Would Be Needed…”: American Empire and the Rule of (International) Law, 16 LJIL 434-435, (2003)

[9] I Buijs, Concept of Sovereignty, supra note 299 at 236-237.

[10]Id. at 235.

[11] Id. at 251.

[12] Id.

[13]Id. at 248, citing Louis Dupre, Passage to Modernity: An Essay in the Hermeneutics of Nature and Culture (1993).

[14] As Van Creveld says of Bodin’s intellectual project: “In a world where God is no longer capable of providing a consensual basis for political life, Bodin wanted to endow the sovereign with His qualities and put him in His place, at any rate on earth and as pertained to a certain well-defined territory.” Martin Van Creveld, The Rise and Decline of the State 177 (1999), quoted in I Buijs, Concept of Sovereignty, supra note 299at 232.

[15] I Buijs, Concept of Sovereignty, supra note 299at 252.

[16]Id.

[17]Id.

[18] Hence, the international legal order of states could then be described in nominalistic terms as the state of nature characterized by a certain agonistics – or struggle – between and among the wills of monadic individual states. This is a constant theme in realist accounts of international relations.

[19] Id.

[20] Id.

[21]IV Marti Koskenniemi, International Law and Raison D’Etat: Rethinking the Prehistory of International Law 1 (March 2008) [hereinafter, IV Koskenniemi, Prehistory].

[22] Id.

[23]IV Koskenniemi, Prehistory, supra note 319 at 2.

[24] Id. at 25

[25]IV Koskenniemi, Prehistory, supra note 319 at 2.

[26] Id, quoting Punfendorf DJN Bk VII Ch 6 § 2.

[27] Id. at 5.

[28] Id. at 8. Koskenniemi cites the period’s most prominent natural lawyer, Jean Domat (1625-1695), who held that all human beings, including the King, was bound by certain universally valid principles of divine and natural law, yet also believed that this in no way conflicted with the view that the French King was absolutely superior to any secular authority. Id. at 9.

[29] IV Koskenniemi, Prehistory, supra note 319 at 5.

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International Law and its Postcolonial Discontents and Possibilities: Lessons from Magallona v. Ermita

 

ImageReactor’s comments  to the 10th MetroBank Professorial Chair Lecture, “Internationalization of Philippine Territory: The Question of Boundaries,”  by Dean Merlin M. Magallona, Chair, Philippine Judicial Academy International and Human Rights Law Department,  Nov, 13, 2013,  Malcolm Hall, UP College of Law, under the auspices of the  PHILJA and the Supreme Court of the Philippines (not for publication or citation without permission from the author)

By Atty. Romel Regalado Bagares

I begin my discussion of Dean Magallona’s lecture with a disclosure: I had the misfortune of having my very first recitation in my very first day in my very first class in my very first year in law school under him. It was a class in legal history and he was then just beginning to discuss with us his students the assigned readings for the day on Philippine customary law. As I heard him call my name for an explanation on the term “indigenous”, I stood from my front row seat with a start, and much to my own shock, proceeded to pace up and down the middle of the room as I explained to him what I understood by the term. The good Dean, face contorted by what could only be mock horror, blurted out at me: “Mr. Bagares – what are you doing? Are you trying to tell me that you can actually think?”

So friends, you will have to forgive me if what I will say today is colored in some way by my first recitation in law school.  I can only hope that at the end of this discussion, you will at least be convinced that I can actually think.

A second disclosure is that other than being a former student of the good Dean, I was also Petitioners’ co-counsel in the case of Magallona v. Executive Secretary,  which is the principal subject of his lecture. So please take my presentation with this further grain of salt.

And so, on to my comments to his lecture:

At the heart of Dean Magallona’s lecture is Magallona v. Ermita is now a judicial fait accompli; with this decision of the Supreme Court, ironically immortalized in the name of the very person who had been most assiduous in opposing it, the internationalization of Philippine territory – by which he meant other states acquiring some form of territorial rights in our own backyard – is complete.

The judicial confirmation that we have now been transformed into an archipelagic state in the contemplation of the UN Convention on the Law of the Sea(UNCLOS) could only have disastrous results to national sovereignty as understood in the Philippine Constitution.  With that, the colonial vestige that is the Treaty of Paris regime (which I am using as a shorthand), and under which the Philippines had previously staked its territorial rights as a state, is consigned to irrelevance.

It may well be one of life’s supreme ironies that Dean Magallona, a card-carrying nationalist international legal scholar, is also a staunch supporter of what we as a country has previously considered as our national territory’s international treaty limits under the over a century-old Treaty of Paris. As an international document, the Treaty of Paris carries with it all the hurts and pains of one country whose struggle to carve its own place in the community of nations was hijacked by colonizers.  But if I understood his view of international law correctly, it is precisely that history is what we make of what other people make of us, to borrow a phrase from one existentialist philosopher. One sees this most clearly in a year 2000 article he wrote for the venerable Philippine Law Journal, where he dealt with the history and morality of the (classical) international law of conquest and colonization as embodied in the Treaty of Paris.

Indeed, the Treaty of Paris carries with the many paradoxes of our existence as a postcolonial state.  As a text it invokes high emotions: the future of a country praised by the Indonesian novelist Pramoedya AnantaToer in his famous Buru Quartet for inaugurating nationalist impulses in our own corner of colonial Asia sold just like that for 20 million US dollars.  Yet for about 400 years – if we were to consider the continuities it presents between the Spanish to the American regime – it marked out what for us were the outer reaches of national territory unlike any other,  and its precise metes and bounds had been transformed into constitutional principle from American Commonwealth days, to the Martial Law era, and on to the Post-Marcos 1987 Constitution.

The TOP marks out a rectangular territorial sea fully encompassing the entirety of the Philippine archipelago; at some points, the territorial sea exceeds 12 nautical miles in breadth.  Perhaps, it bears noting that although the Philippines is not the only state which claims a territorial sea of more than 12 nautical miles, it is the only mid-ocean archipelago whose territorial claims had been specifically defined and delimited in latitude and longitude and embodied in international treaties and drawn in whole maps and charts.  In fact, as one author has observed, “the area of asserted jurisdiction is, in some places, 285 nautical miles from the nearest lands, thereby making it the most extravagant seaward claims.”

The Romantic Post-Colonial Argument

And so, to begin with, on the level of historical discourse, there’s not a lot going for the Treaty of Paris. As has been already noted, one argument against it is that it embodies one of the worst vestiges of our postcolonial heritage: accepting its international legal implications would mean accepting the rank immorality of the Spanish cession of the Philippines to the United States. Our future as a country was sold by one colonizer to another, violating our right to self-determination, which we have already declared on June 12, 1896 in Kawit, Cavite.

The UNCLOS, meanwhile, represents our sovereign and independent willing as a country and nation to fashion a future according to our own wishes. It marks our entry point into the modern international community in a decisive move to break away from the vestiges of an older international law where conquest was a legal means of acquiring territory.

The Treaty of Paris belonged to the Lotus era, where states did as they wished, for as long as there was no express prohibition in international law for what they did; the UNCLOS is one of those key international instruments that helped fashion an international community founded on communal values, and it is one in which we participated as a fully sovereign, newly-independent state.

Under this view, the Treaty of Paris represented an appeal to international law that may well be difficult if not impossible to successfully prosecute, because of its highly exceptional nature. But in a more complex contemporary reality, the best strategy is to adopt what is widely accepted and shared, as what can be made as a case for the UNCLOS, now with 166 member states out of a possible 193 member states of the United Nations, as of August 2013.

One connected strand of this version of the postcolonial narrative is the claim by some quarters today that it was the Philippines, along with Indonesia, that introduced the archipelagic doctrine during the deliberations at the UNCLOS conferences in 1958 and 1960.  It was the requirement of the very same archipelagic doctrine as embodied in the final document of the treaty to which we became compliant with the passage of RA 9522, the new Baselines Law assailed in Magallona v. Ermita. It is no doubt an appealing assertion of romantic history but it is unfortunately a grossly inaccurate one, its historiography either twisted or one founded on academic laxity.

It is true that the Philippines submitted proposals for a new archipelagic doctrine to the UNCLOS conferences. At the time, international law did not have a definite rule on the reaches of the territorial sea; the Philippines thus advanced the archipelago theory, which considered as a single unified whole outlying or mid-ocean archipelagos such as itself for marking out the reaches of its territorial waters by drawing baselines from the outermost points of the archipelago and the belt of marginal seas outside of such baselines. Further, consistent with its constitutional provisions on the National Territory under the 1935 Constitution and the Treaty of Paris, the Philippines asserted that waters landward of or within the baselines are internal waters.

The justification for this, according to the Philippines, is that the prevailing conceptions of the limits of the territorial sea had been based largely on the continental nature of a coastal State and did not consider the archipelagic nature of states like the Philippines.

The Philippines lost in its bid to have its archipelagic theory recognized in the UNCLOS conference. What prevailed is the view of an archipelagic state subject to the regime of the archipelagic waters now enshrined in Art  46 in relation to Article  47 (1) of Part IV of  the UNCLOS.

It is this regime in the UNCLOS that Dean Magallona argues, has eliminated wide swatches of  waters considered under the Treaty of Paris and the Philippine Constitution  to be Philippine internal waters.

But in good protester state’s fashion, following the 1958 and the 1960 UNCLOS conferences, the Philippines passed RA 3046 (later amended by RA 5446) using the outermost points of the Archipelago for the purpose of drawing straight archipelagic baselines.

RA 3046 (An Act to Define the Baselines of the Territorial Sea of the Philippines)referred to the Treaty of Paris in its preambular paragraphs, to wit:

WHEREAS, the Constitution of the Philippines describes the national territory as comprising all the territory ceded to the United States by theTreaty of Paris concluded between the United States and Spain on December 10, 1898, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on November 7, 1900, and in the treaty concluded between the United States and Great Britain on January 2, 1930, and all the territory over which the Government of the Philippine Islands exercised jurisdiction at the time of the adoption of the Constitution; (Emphasis supplied)

Our first baselines law further stated that all the waters within the limits defined in the Treaty of Paris have always been regarded as part of the territory of the Philippine Islands, to wit:

WHEREAS, all the waters within the limits set forth in the above-mentioned treaties have always been regarded as  part of the territory of the Philippine Islands;”

In Magallona v. Ermita however, our Supreme Court fell for the romantic postcolonial yarn that from the very beginning we had always been an archipelagic state and  had even originated the doctrine in the 1958 and the 1960 UNCLOS conferences; that, or it apparently confused the concept of an “Archipelago” with that of an “Archipelagic State”. It thus declared

In 1961, Congress passed Republic Act No. 3046 (RA 3046), demarcating the maritime baselines of the Philippines as an archipelagic State. xxx  (Emphasis supplied, internal citation omitted)

It bears stressing that as a legal concept, the Archipelagic State did not come into existence until it was adopted in Part IV of the UN Convention on the Law of the Sea (UNCLOS).  The Philippines considered itself an Archipelago –a unity of land and water – under its 1935, 1973 and 1987 Constitutions.  It did not become formally an Archipelagic State until, as a State Party to the UNCLOS, it applied the straight archipelagic baselines under Article 47(1), Part IV of the UNCLOS, such baselines being a feature of archipelagic States under the said Part IV of the UNCLOS.

To repeat, the Philippines is an Archipelago but it did not become an Archipelagic State until the enactment of Republic Act No. 9522 which implemented such baselines under the concept of Archipelagic State of the UNCLOS.

Art. 46, Part IV,  read with Art. 47 (1), Part IV, makes the distinction clear:

 

Use of terms

For the purposes of this Convention:

(a)”archipelagic State” means a State constituted wholly by one or more archipelagos and may include other islands;

(b) “archipelago” means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

That our Supreme Court conflated the two concepts is evident when it  quoted in Footnote 3 of the Ponencia the third “Whereas Clause” of RA 3046  as expressing the import of treating the Philippines as an archipelagic State:

“WHEREAS, all the waters around, between and connecting the various islands of the Philippine archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenance of the land territory, form part of the inland waters of the Philippines.”

Post-Colonial Prudence

It is a grievous mistake to consider this WHEREAS Clause as a way of “treating the Philippines as an archipelagic State,” because the internal waters as areas of sovereignty appurtenant to the land territory of the Philippines is precisely what is eliminated by the UNCLOS in its concept of Archipelagic State,replacing  internal waters with “archipelagic waters” for the objective right of innocent passage of all ships of all States, among other rights, as found in Art. 53 of the UNCLOS, among other provisions.

Thus we now have a legal quandary of a statute amending our constitution, albeit in international law – and this is what makes it worse – both have equal standing as binding unilateral acts  of a state.

Having said that, the egging question is whether we could have avoided the archipelagic state regime at all, despite our being a party to the UNCLOS, at least, for the time being?

The Petitioners in Magallona v. Ermita have argued in the affirmative.  It is not mandatory upon States Parties that are archipelagos to make transform themselves into archipelagic States.  This is borne out in the permissive language of Art. 47 (1), Part IV of the UNCLOS :

An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

In fact, the Supreme Court’s Ponencia in Magallona v. Executive Secretary itself acknowledged that the Petitioners’ reading of the UNCLOS is plausible, namely that– “based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522.” However, the High Court thought it was the province of Congress to say so and not theirs. Regrettably, the High Court passed off the chance to declare the new Baselines Law to have been passed and signed into law in grave abuse of discretion, at least with respect to its transformation of the Philippines into an Archipelagic state.

Which leads me to my second point about international law’s postcolonial discontents and possibilities: we’re all for human rights, jus cogens and all that, but in addition, we should also learn to use international law with postcolonial prudence.

That we have not done so is laid out in stark detail by the fact that states like Japan and Cuba – which  are archipelagos in their own right – have not declared themselves as “Archipelagic States” under Art. 47 (1), Part IV of the UNCLOS.

Instead, we made a “rush for the second place, “and simply ignored – in an exercise of “chronological snobbery” – what we have already achieved as a State, despite our tormented postcolonial heritage.

Contra textualist readings of the Treaty of Paris which do not treat the treaty limits found there as political boundaries but merely heuristic devices, we assert that we have made that Treaty ours and for our posterity by constitutional principle.

Dean Magallona does not mention it in his lecture but Petitioners have in fact argued that  under the doctrine of uti possedetis juris, the International Treaty Limits contained in the treaty have become frontiers protected by international law. The doctrine, accepted now as a general principle of international law by the International Court of Justice, served to freeze the title over territory at the time of independence, in effect producing a “photograph of the territory.”

In the territorial dispute between Burkina Faso and Mali, the International Court of Justice would affirm the principle in these words: “[t]here is no doubt that the obligation to respect pre-existing international frontiers in the event of State succession derives from a general rule of international law expressed in the formula of uti possidetis.” Read from a postcolonial perspective, the doctrine, originally applied with much initial resistance in settling decolonization issues in America and Africa, we should use to our territorial advantage. Indeed, as we have argued in Magallona v. Ermita, we have in fact constitutionalized the import of this doctrine by incorporating in the national territory provisions of practically all of our postcolonial constitutions the metes and bounds of the Treaty of Paris regime.

Dean Magallona has bewailed the schizophrenia in the stance of the Philippine delegation to the UNCLOS conferences: at the conferences, on the one hand, they consistently pursued “the dominion and sovereignty of the archipelagic state within the baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable unity of the land and water”; yet on the other hand, they still went on and signed the UNCLOS and had it ratified, though not without submitting a declaration to the UN stating that the Philippines becoming a state party to the treaty did not mean that it any manner impaired or prejudice “the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines.”

At least, today, with RA 9522 and Magallona v. Executive Secretary, we can safely say we now know where we exactly stand. Thank you

 

 

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