Monthly Archives: November 2018

Doing long-haul diplomacy in Pinyin

Does the arbitral court’s discussion of kompetenz-kompetenz make sense?” W., a young female Chinese graduate student, softly asks me as we walk past Beijing’s Ministry of Foreign Affairs building under an afternoon drizzle recently.

Her question is at the heart of the Permanent Court of Arbitration’s (PCA) jurisdiction over the South China Sea case filed by the Philippines, despite China’s objection.
“It’s the arbitral court’s competence to rule on its own competence to hear the dispute,” I answer, with a nod to Kelsen’s theory that international law springs from a grundnorm (fundamental norm). She obviously knows. She’s politely raising doubts over the PCA’s voiding of the “nine-dash line” claim.

Following an international law conference in Beijing in mid-October, W. shows Herbert Loja—a Pinoy PhD student at the Hong Kong University—and me around the city’s tourist spots.

Many young people now study international law in droves after the court’s ruling, says W., a student at the China University of Political Science and Law. Are Filipinos her age similarly driven? I wonder.

Conversant with Mao and Marx, she is tall and lively, and speaks English with a slight British accent, acquired by “listening to BBC broadcasts.” If her studies are an indication, her generation of students knows Western modes of thinking in international law, and the imperialist roots of the current purportedly rules-based international legal regime.
Earlier, over a lunch of bowls of steaming noodles in a trendy basement restaurant on Wangfujing street, we discussed a new book on theories of international law by a noted European scholar.

At the Asian Society of International Law conference hosted by Renmin University where Herbert and I read papers, scholars pondered the global shifts that had taken place since 2016. State sovereignty is back with a vengeance, said Society president Harry Roque. With the American retreat deep into national anxieties, emergent powers have freer rein to pursue their own vision of international relations in a multipolar world.

Cynicism is rife. Former colonies oppose universal rules with new vigor, saying such were made to favor former colonizers. The old logic of international law as might is right resonates with countries that should know better, precisely because, once upon a time, they were at its receiving end. But it pays to remember, argued professor Shinya Murase, that it was newly decolonized states (the Philippines included) that pushed the United Nations for equal human rights protection.

The drizzle is now a downpour, as we reach the gates of the colossal 18-hectare National Museum of China. Nearly half the size of our Mall of Asia, it’s a stone’s throw away from Tiananmen Square, scene of a massacre in 1989, when Chinese army tanks crushed a prodemocracy student protest. The carnage is forgotten while the museum runs a permanent exhibit, “The Road of Rejuvenation,” on the Western powers’ humiliation of China and its desire for vindication.

A beneficiary of the dividends of China’s huge investments in higher education, W. hopes to become a diplomat. For now, she volunteers for a Chinese NGO working among Syrian refugees in Turkey, and plans to get an internship at The Hague next year.
Though many Chinese universities now rank among the world’s best, few Filipinos think of Beijing as an education mecca. But we need to thoughtfully argue our rightful place as a nation, in a language that the Chinese understand very well—theirs.

If language is a door to a culture’s deepest thoughts, imagine Filipino legal scholars discussing fluently in Pinyin with their Chinese counterparts the finer points of China’s own Hobbesian realpolitik toward other states! In fact, we need more young Filipino scholars from all possible fields studying in the best Chinese universities.

There, they may yet win respect from China’s future leaders for the unfinished struggle for self-determination of Asia’s first republic.

Earlier published at : https://opinion.inquirer.net/117175/doing-long-haul-diplomacy-in-pinyin#ixzz5XYCO8xCN

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Filed under International Law, ITLOS

Green on Gardner on Law and Morality

Leslie Green continues his critique of his Oxford colleague John Gardner on the relation between law and morality. Here he engages Gardner’s point about the “inescapability of morality” in relation to law — that law is judged by morality, if law isn’t in some way, a moral norm by itself, or a “near natural law.”

The discussion echoes but couldn’t quite identify, the multi-aspectual view, where “positive law” in fact functions in all aspects of reality — it has a moral, social, economic, aesthetic, lingual or historical sides, and so on.As Alan Cameron, who edited the first volume of HD’s Encyclopedia of the Science of Law, put it to me recently, the process of law forming “is not merely the positivisation of a jural norm. It also requires the positivisation of analytical, lingual, social, economic and possibly aesthetic norms. An individual law has it own ‘individuality’ structure – it is some “thing” jurally qualified but displays all the modal aspects (subjectively and objectively).”

Thus a contract is not merely a legal document, it also has a social dimension, or functions in the social realm, as it has a certain history and an economic value (as the sociologists of law have been trying to show).

It should be interesting to note that in HD’s modal scale, the ethical (moral) aspect comes after the legal aspect. Law is prior and foundational to, and anticipates, morality. So there is some correspondence between HD’s and Gardner’s notion of morality, as the former in fact says that the ethical aspect deepens the legal aspect in the process of disclosure.

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Filed under Aquinas, Dooyeweerd, reformational philosophy, Uncategorized