Category Archives: International Law

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 As the UNCLOS superseded any historic rights, or other sovereign rights or jurisdiction, in excess of the limits it imposes, the Nine-Dash Line claim cannot survive the treaty’s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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The UDHR and the Ontology of Rights

 

UDHRMore than 60 years after its founding, the Universal Declaration of Human Rights (UDHR) remains a document relevant to contemporary issues and problems; Perhaps, its genius lies in the fact that it is a declaration that embodies a broad sweep of the world’s varied traditions, philosophies and perspectives, so that no single bloc can claim ownership over its “sacred truths,” to use a theological term in this highly secularized era of ours.

Perhaps too, it can well be said that their commonality lies in the sureness of their being profoundly human. And while critics may rightly point to how its more influential interpreters often offer to the world a lopsided bent towards the individualistic view of human rights, as a founding document, its relevance is measured by the willingness of its adherents to a reasoned dialogue about the differences and commonalities that characterize various interpretive traditions.

Of course, ontological issues cannot be summarily set swept aside. (Indeed, the Western tradition presses on the primacy of the individual as the supreme if not the only ontological truth there is).

But that precisely is the role of reasoned dialogue: to show which interpretative strategy is better able to explain the problems and the solutions to them. Hence how can we better account for the so-called collective/group rights other than a resort to the positivist predilection for the description of the what is (and its undisguised disdain for the teleological)?

This discussion is also crucial to an understanding of the rise of non-state actors in international law. Is the sociological account (as for example, the process view of Higgins) enough to convince us that original objective legal personality must now be seen as something that transcends the state.

Indeed, much of theorizing on the state has been influenced by a philosophical movement that either exalts the state as the only political reality or treats it as a legal fiction of the social contract between among purportedly free and autonomous individuals.

International legal theory takes it for granted that there is an opposition between the individual and the state, to the exclusion of all other non-state actors. International legal theory thus confronts us with a nominalism of the state as the only true sovereign and a nominalism of individuals as the basic elements of the international legal order.

Hence, international law theorists resort to an unsatisfactory strategy of (1) devising external limits to the powers of the state or (2) stressing the primacy of the individual over all else to curtail abuse of state power. This nominalistic approach has so dominated international law that for the most part, the state has been seen as the only source of legal standing and legal personality in the international arena.

The first strategy cannot fully account for the state’s public and private duties while the second strategy fails to do justice to the proper exercise of the same duties as well as to the existence of other non-state entities, such as civil society groups, churches and multinational corporations.

This in fact leads to an irresolvable conflict between the state and the individual, inasmuch as it fails to properly recognize their respective competencies, as well as the existence of other spheres in society.

Neither of the two strategies can properly account for the rise of non-state actors in international legal discourse, other than resorting to notions of democratic participation and legitimacy that in the first place do not provide a convincing ontological justification for why non-state actors should be granted the right to democratic participation and the power to ascribe legitimacy to international legal processes.

As Jeremy Sarkin has persuasively argued, there is a “clear position from 1948,” when the UNDHR was adopted, that the instrument demands that “every individual and every organ of society … promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.”

From this standpoint, although “companies may not be in the habit of referring to themselves as ‘organs of society,’ they are a fundamental part of society. As such, they have a moral and social obligation to respect the universal rights enshrined in the Declaration.”[1]

Yet his observation also begs to ask the question thus: is this merely a matter of opinio juris and state practice, or something that requires a radical and fundamental ontological commitment? Of course, we all know that even the positivist position is anchored on an unstated ontological commitment, that is, one that thinks lightly of ontology, if at all.

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On the occasion of International Human Rights Day, Dec. 10, 2015

[1]Jeremy Sarkin, The Coming of Age of Claims for Reparations for Human Rights Violations in the South, 1 SUR INT’L J OF HUM. RIGHTS 67, 69-70 (2004)

 

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The Cebu Declaration for Free Expression in Southeast Asia

CebuDeclarationLawyers from five countries in Southeast Asia have met in an historic conference in Cebu, Philippines to form a common front against the repression of freedom of expression in the region.

One of their key proposals is to engage together and hold accountable regional institutions like the ASEAN Intergovernmental Commission on Human Rights – an organization, they say, remains unresponsive to human rights violations in member countries.

More than 30 lawyers, representing 10 civil society organizations from Thailand, Malaysia, Myanmar, Indonesia and the Philippines established Sunday the Advocates for Freedom of Expression Coalition-Southeast Asia (AFEC-SEA) and vowed to “raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.”

“A violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region,” they said in a document signed over the weekend during the four-day conference in Mactan, Cebu. “The protection of freedom of expression is an obligation of the whole region under international law.”

Most of the signatories are trial lawyers who have handled cases against freedom of expression and Internet freedom. Some – including senior lawyers from Myanmar – had been jailed for fighting against human rights violations or for advocating freedom of expression.

“Recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia,” the declaration said, signed by the Center for International Law Philippines (CenterLaw), Persatuan Kesedaran Komuniti Selangor (EMPOWER), Institute for Criminal Justice Reform (ICJR), iLaw, The Legal Aid Center for the Press (LBH Pers), Malaysian Centre for Constitutionalism & Human Rights (MCCHR), Myanmar Lawyers’ Network (MLN), Myanmar Media Lawyers’ Network (MMLN), Philippine Internet Freedom Alliance (PIFA), and the Thai Lawyers For Human Rights (TLHR).

The conference was organized by Centerlaw with the support of the American Bar Association Rule of Law Initiative Internet Freedom program.

“(I)n establishing this freedom of expression collation, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world,” the declaration added.

“It is an opportune time for us to issue this declaration given the escalating repression of expression in the region, including restrictions on the use of the Internet,” said Romel Bagares, CenterLaw executive director.

He said the lawyers realize that for the most part, they are fighting an uphill battle in countries like Thailand, Myanmar and even Malaysia. “But it is important that cases are filed to have an historical record of wrongs brought to court.”

Among the projects coalition members will undertake is a campaign against the use of a single gateway for the Internet in Thailand, legal challenges against the use of the 1948 Sedition Act in Malaysia to repress protests against the government, and the filing of cases in the Philippines against recently-issued government regulations on the Cybercrime Act, according to Gilbert Andres, a Centerlaw senior litigator who played a key role in bringing the lawyers together to the conference.

“The lawyers have also agreed that the Asean Intergovernmental Commission on Human Rights needs to be challenged and engaged to play an active role in the promotion and protection of free expression,” said Andres.

Delegates from Myanmar also highlighted their “Yellow Ribbon campaing” for judicial independence in their country in the wake of the appointment by the government of senior military officials to their Supreme Court. “Free expression is stifled when the courts are filled with generals who repress dissent the first time they see it,” said Aung Soe, a veteran lawyer who represented the Myanmar Media Lawyers Network and the Myanmar Lawyers Network, two largest lawyers’ groups in his country .

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Cebu Declaration  on the  Right to Freedom of Expression as a Fundamental Human Right  and its importance to the Southeast Asia region

WHEREAS, we are non-governmental organizations in Southeast Asia working for the protection and promotion of human rights, especially for the right to freedom of expression;

WHEREAS, recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia;

WHEREAS, we see an urgent need in Southeast Asia to utilize remedies under domestic and international law against these threats to freedom of expression, for we want to establish an edifice for free expression that will serve not only this generation but the future generations of Southeast Asians;

THEREFORE:

WE DECLARE that the right to freedom of expression is essential in the pursuit of truth, justice, equality, and accountability; but more importantly, freedom of expression is a fundamental human right since as human beings we yearn to express our own humanity.

WE DECLARE that in order to animate our core belief in the right to freedom of expression as a fundamental human right, our individual members shall commit not to prosecute criminal cases against anyone for something he or she expresses except in accordance with international human rights norms, and shall advocate for the repeal of criminal libel laws.

WE DECLARE that the right to freedom of expression is universal, but that the methods for its advocacy and protection are contextual; hence, we shall raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.

 WE DECLARE that the economic and social integration of Southeast Asia requires the respect and protection of freedom of expression in our region consistent with international human rights norms. Freedom of expression cannot be bargained for purely economic, social or political considerations. Moreover, a violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region; the protection of freedom of expression is an obligation of the whole region under international law.

WE DECLARE that the rule of law, equality, non-discrimination, access to justice and fair trial are essential to the protection and promotion of freedom of expression.

WE DECLARE that to be more effective advocates for freedom of expression and the rule of law in Southeast Asia, we resolve to work together in unity of purpose, action, spirit and passion, and WE THEREFORE ESTABLISH the Advocates for freedom of expression Coalition-Southeast Asia to advance freedom of expression across Southeast Asia consistent with international human rights norms, through strategic litigation, education, training and advocacy.

LASTLY, WE DECLARE that in establishing this freedom of expression coalition, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world.

Signed this 27th day of September 2015, in Lapu-Lapu City, Mactan Island, Cebu, Philippines, by our duly authorized representatives

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Filed under Burma, Free Expression, Human Rights, International Law, Internet, Libel, Malaysia, Thailand, Uncategorized

Philippines should take Indonesia to ICJ re #MaryJaneVeloso case

Mary Jane Veloso is a Filipina who was allegedly conscripted by an international syndicate to smuggle drugs into Indonesia as a “drug mule.” She was arrested at the airport and subsequently tried and found guilty by an Indonesia court for drug trafficking. She was sentenced to death. The 72-hour countdown to her execution is well on its way, and will end when she faces a firing squad tomorrow, Tuesday, at 5 pm. A second, last-ditch appeal filed by lawyers on her behalf has just been denied.

With the denial of this second appeal, we at the Center for International Law believe it  is now possible for the Philippines to consider an international remedy available to it.  In fact, there is still time for the Philippines to take Indonesia to the International Court of Justice on the capital punishment case, following precedents in the La Gran11173378_10153896807533298_1132289177278974993_nd (Gemany v. US, 2001) and Avena (Mexico v. US 2004) cases. The Philippines can ask the World Court for a provisional order to stay the execution, as Germany did in La Grand just hours before the scheduled execution in Arizona, which by the way, was granted by the ICJ. We have got nothing to lose by exploring this option. This should not be taken as mutually exclusive of diplomatic avenues.

I was interviewed on this issue this afternoon by CNN Philippines reporter David Yu Santos. And that is exactly what I pointed out to him. But the question is, will the Philippine government take up this option?

 

 

 

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Filed under Capital Punishment, Human Rights, Indonesia, International Court of Justice, International Law, Philippines

Filipino human rights group brings case of detained Thai poet to UN body

ThailandThe Manila-based free expression advocacy group Center for International Law asked the UN Working Group on Arbitrary Detention Wednesday to press the Thai Royal Government to free a Thai poet and blogger being tried by a military tribunal for writing articles that allegedly insulted King Bhumibol Aduljadej.

The cyberactivist, the poet Sirapop Korn-A-Rut, has been detained at the Bangkok Remand prison since June 2014 and faces up to 45 years in prison under his country’s restrictive lèse majesté laws, or laws penalizing any publication deemed offensive to the Thai King.

“Sirapop has written about a wide range of issues dealing with the contemporary political and legal climate in his country, a brave act that cannot be honestly done without dealing with the institution of the Office of the King of Thailand,” said lawyers Harry Roque and Romel Regalado Bagares, chair and executive director, respectively, of CenterLaw. “In doing so, he has run afoul of the lese-majesté laws of the Kingdom of Thailand, which he has also considered to be a long-standing instrument of political repression and oppression in his country.”

The Thai cyberactivist, whose situation was brought to Centerlaw’s attention by the Thai internet freedom group Internet Law Reform Dialogue (iLaw), is accused of publishing several allegedly libelous poems online against the Thai King sometime between November 7, 2009 and June 30, 2014 under the pseudonym “Rungsira.” One poem (Shut the news, closing the eyes, buffalos are tearful, because the tiger may die) Pid-khao-bod-khloa, Kra-bu-ram-hai, Duay-wa, Pa-yak-ka-jak- ka-wai, was posted on the web board of the“Prachathai” website (www.prachataiwebboard.com).

This carried a caricature of an crowned old man with a Swastika on his military uniform sleeve accompanied by the text “…being an angel, why does one have to walk on the soil, overlook the ground surface, even if having normal food every meal, being modest, because we are faithful, with two hands we build up ourselves…”

The same caricature with the text “Prince Baworndesh the head of the rebels, Din Tarab the army leader of the rebel, Sulayut Julanon the Grandson of the rebels, the Angel the King of the rebels, Suthep Thaugsuban the Southern rebel, Sondhi Limthongkul the Chinese rebel,” also appeared on his blog (http://rungsira.blogspot.com/2014/01/blog-post-22.hlml). All of these were purportedly placed and made available online by Sirapop during Martial Law in Thailand.

The human rights group Amnesty International reports that around 511 activists, students, academicians and journalists have been arrested and arbitrarily detained, in violation of their rights to freedom of expression and peaceful assembly, since Martial Law was declared in the country last May 20, 2014.

Authorities have used security legislations and lese-majesté laws to suppress even peaceful dissenters to such extents that enforced disappearances, torture and inhumane treatment were carried out, prosecutions of criminalized political activities were hastily made, media was bullied into silence and self-censorship, and human rights safety mechanisms were set aside.

In their 16-page petition to the Working Group, the Filipino lawyers said Sirapop is clearly being arbitrary held and tried simply because he has chosen to exercise his right to free expression and to participate in public affairs in his country, which rights are protected under international law, including the International Covenant on Civil and Political Rights, of which Thailand is a party. The Thai cyberactivist is also being denied his right to a fair trial, according to the petition.

The UNWAD is a specialized UN human rights mechanism dealing with urgent cases of arbitrary detention any where in the world. While its rulings are non-binding, these are considered authoritative on the state of international law dealing with fundamental human rights. Over the years, its interventions in the situation of many human rights activists in repressive states have yielded positive results.

Centerlaw cited a view issued by the UN Human Rights Committee in the case of jailed Filipino broadcast journalist Alexander Adonis, which Centerlaw had brought before the Committee. “In its view in the Adonis case the UNHRC said that criminal libel is incompatible with the freedom of expression protected under Art 19 of the ICCPR,” it said in its Petition filed on behalf of Sirapop.

Thailand’s ruling military junta has scrapped the country’s old Constitution and replaced it with an interim charter that denied the right of appeal to citizens convicted of violating its lese-majesté laws. As in Sirapop’s case, it has increasingly used military courts to prosecute alleged offenders without a public trial. Centerlaw argues that thailand’s military tribunals are not independent of the Executive and the lack of an appeal removes any possibility of a remedy against its judgments.

*image from http://www.stopmakingsense.org

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The state, human rights and the simultaneous realization of norms

human-rightsThe Guardian recently published an essay by the American legal scholar Eric Posner on the failure of human rights to live up to its utopic promise. Posner flails at the top-down approach the UN human rights system has propagated around the world, despite the ambiguities and contradictions that the complex of human rights laws are stricken with. He concludes his essay with a plea for a new approach, thus:

It is time to start over with an approach to promoting wellbeing in foreign countries that is empirical rather than ideological. Human rights advocates can learn a lot from the experiences of development economists – not only about the flaws of top-down, coercive styles of forcing people living in other countries to be free, but about how one can actually help those people if one really wants to. Wealthy countries can and should provide foreign aid to developing countries, but with the understanding that helping other countries is not the same as forcing them to adopt western institutions, modes of governance, dispute-resolution systems and rights. Helping other countries means giving them cash, technical assistance and credit where there is reason to believe that these forms of aid will raise the living standards of the poorest people. Resources currently used in fruitless efforts to compel foreign countries to comply with the byzantine, amorphous treaty regime would be better used in this way.

Those familiar with contemporary discussions of the role of international law in the promotion of democratic ideas will recognize many valid concerns in Posner’s essay. Indeed, democratic theory in international law — by extension includes human rights theory — has often drawn criticisms that it is fundamentally a Western, liberal democratic imposition. For example, the Finnish scholar Martii Koskenniemi rejects the universal claim of international law (specifically democratic theory) as rooted in a European tradition and should not and could not speak for humanity.

He warns that such a tradition of liberal democracy may yet end up as another hegemonic imposition on non-Western states, reminding us of his arguments in his book the Gentler Civilizer of Nations about the international lawyers of an earlier era who thought none of the contradictions that came with assigning to international law a civilizing task and at the same time using it as justification for colonialism:

As international lawyers, the only arguments open to us are those provided by our tradition: jus cogens, obligations erga omnes, and all the legal paraphernalia produced by treaties, customs, international institutions. They do not automatically express anything universal: indeed, more often than not they are used as instruments in hegemonic struggles. As soon as we lose sight of this, they turn into kitsch.

For Koskenniemi, there is nothing special about the modern state, or its democratic aspirations. Yet at the same time, he is not about to celebrate the indigenous that easily either. Indeed, Koskenniemi’s has remarked that : the state can either be used for good or bad. But towards the end of his book’s chapter on sovereignty and international law’s supposed civilizing mission, he says that while indeed it may often be suggested from history that “it is better to live in a political society whose administrators speak our language, share our rituals and know our ways of life,” he quickly adds that “there is no magic” about these relationships. Lest we forget, “communities that are closed to outsiders will rot from the inside.”

For me, this somehow stresses Dooyeweerd’s point first of all about the nature of the state as a differentiated public legal community.

Koskenniemi and all his kindred spirits are correct in locating ideas of democracy in the Western tradition. Dooyeweerd’s own account of the development of the theory of the state in its different stages draw from the Western, if largely European experience (with certain Dutch emphases).

A differentiated society, in Dooyeweerd’s systematic philosophy, could only arise from the disclosure of societal structural principles by human positivation. It is a process that is distinctive for its historical embedded-ness. A society could be closed, so that differentiation could not take place. (Koskenniemi seems to realize this as he remarks about the decline communities slide into if they remain in autarkic existence. For all his hesitations, Koskenniemi has implicitly cast his lot with the comfortable choice, that is, his own Western tradition, warts and all. )

We must not lose sight of Dooyeweerd’s argument from history and the directionality of positivations.

The development of a public legal community is so closely bound up with societal differentiation itself that we cannot measure the rest of the world’s pace against the Western experience (or let alone consider the tragic injustices that most of them have suffered in the era of colonization). Skillen had long ago noted that human rights “are tied in with the very meaning of justice and injustice in states and thus cannot be protected or enhanced in abstraction from actual state and interstate structures.”

In other words, if the very character of the sovereign state is part of the problem, every effort to advance human rights without changing the function and identity of states will lead to failure.

There then, is a certain realism to Dooyeweerd’s theory of the state: differentiation is an historical process that demands public commitment. At the same time we must also realize that Dooyeweerd’s theory of differentiation also shines through with a fundamental Christian conviction about the direction societal structures may take: differentiation by itself is not to be equated with development. An integral part of the state’s historical task of disclosure is what the kindred philosopher and economist Bob Goudzwaard has  long called the “simultaneous realization of norms,” following his mentor, Dr.  T.P. van der Kooy.

This means that the realization of one norm cannot be separated from the others. It also means that the realization of one norm is dependent on those of others. Economic development cannot be pursued for its own sake, independently of the others. The state will have to consider as well considerations of justice and mercy, for example. (For those interested, Goudzwaard discusses the need to simultaneously disclose economic norms with others in his first full-length work, a critique of the Western ideology of progress as embodied in Capitalism, here).

Perhaps, this is Dooyeweerd’s answer to Koskenniemi’s worries that international law is turning into kitsch, (by which he means an imperialistic and racist instrumentalism that looks at the Other as the savage, and the Western self as the epitome of human rights and civilization).

And this does not in any way let off the hook the formers of the cultural way of being from the historical task of building a public legal community. They can only hold it off at the risk of grave injustices to their own constituencies.

The normative view of the state is in fact a strong critique of the supposedly “civilizing” purpose of colonialism. The continuum between power and justice found in Dooyeweerd’s theory of the state suggests that much. No political project can disregard the requirements of justice without risking its adverse consequences. While power is foundational to the state – the monopoly of the sword – it simply cannot survive on that count alone. Power must reach, or anticipate, justice. Power must open up to, and be deepened by, justice.

*human rights themed image  taken from the oxfam website.

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Filed under Dooyeweerd, Human Rights, Human Rights Watch, International Law, Public Interest, reformational philosophy

International Law as Process

515EilmX7mL._SL500_PIsitb-sticker-arrow-big,TopRight,35,-73_OU01_AA300_It’s time once again to teach public international law. As I’m wont to do before the start of the new semester, I re-read my notes on Rosalyn Higgin’s book. Problems and Process: International Law and How We Use It, the first two chapters of which I discuss with my class in great detail for the first two meetings of the semester. In this book, Dame Higgins famously advanced the view that international law is not rules but process — in fact, according to her it is a process  involving a normative system  of “authoritative decision-making”; In so doing, she wished to avoid the rigidity that is perceived to attach to international law conceived as rules.

Dame Higgins’s definition, drawing from her Yale mentor Myres McDougal’s policy-oriented approach,  emphasizes the dynamic  and formative process set in motion by various institutions to arrive at binding international legal norms. It appears to me that from a reformational view,  this method surfaces two aspects, the kinematic and the historical. Process implies movement; authoritative decision-making implicates institutions that give form to the norms of international law. What it fails to grasp is that international law itself must not be seen as a “thing” but as part of the jural dimension of reality.

While Dame Higgins’s definition is able to capture the dynamic movement that yields international legal norms, that is, through various actors in international law (hence, it also involves the historical, formative  competence that gives positive shape to principles, as expressed  legal norms), it does not see that these aspects form part of  the necessary conditions — the constitutive elements — of the international legal norms themselves.  They form part of the “structural building blocks” of any legal order; they  are presupposed, to begin with, by the idea of an  international legal order.

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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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Akbayan Rep. Walden Bello on: The Janus-faced State

janus

 

A couple of weeks ago, I heard Akbayan Rep. Walden Bello speak at an event marking the International Day of the Disappeared of a Janus-faced State with “hard” and “soft” faces, by which he apparently meant that the State has a Dr. Jekyll-and-Hyde nature.  One part of the State is good but there is that part, represented by the security forces, that does evil. Which is why, according to him, we need human rights laws to rein in the apparently inherently evil part of the state.   Subsequently, an essay of his on the same question appeared on his online column for the Philippine Daily Inquirer (“Restraining Leviathan” 9/4/13 – which title, I hasten to add, echoes a leading work of a  philosopher of absolute power, the Englishman Thomas Hobbes).

Neither his talk nor his column mentioned any reference but if I may hazard to guess, he might have drawn his theory of a dual-faced State from the work of the German political theorist Ernst Fraenkel, who fled to the US in 1939 to flee Nazism. In 1941, he came out with the book  The Dual State: A Contribution to the Theory of Dictatorship, where he described  two contradictory features of Hitler’s government: a “Normative State” characterized by the existence of formal constitutional norms for civil and political rights, and a “Prerogative State”, defined as a State with a predilection for arbitrary and unchecked exercise of power (curiously, the Prerogative State echoes the definition given by the acknowledged chief architect of Nazi constitutional thought, Carl Schmitt, who defined the true sovereign as someone who has the sole prerogative to decide what is the exception).

In any case, Rep. Bello’s dualistic conception of the state raises key theoretical and practical problems. I mention here only three of several possible points. First, in both constitutional law and international law, the state is understood to be composed of a unity of people and government, regardless of its particular form (let us remember that according to the Montevideo Convention the elements of a state are government, people, territory and capacity to enter into international relations).

This gives rise to the question: so which part here answers to the soft side and which one answers to the hard part, if the state is one such unity?

Second, he seems to define evil chiefly in terms of human rights violations. What about graft and corruption, which, today seems to plague all sectors of society, and not just government? It is obvious that other branches of government are afflicted with this societal/cultural disease, and not just the security sector, not to mention that in the Napoles pork barrel scam, we have seen an entirely different type of Public-Private Partnership.

Third, he speaks of a hard face of the state as if it were something that is already a given, or inherent. This is a point in political theory with a long and distinguished history, beginning with the first anarchists, the Anabaptists (the predecessors of today’s Mennonites),  who, in the Christian tradition, rejected the state as an institution of the Devil, and all the way to contemporary Marxists and Anarchists who speak in varying ways of the “overcoming of the state.” There too are the debates between the Roman Catholic Thomists and the Protestant Augustinians: in opposition to the former, the latter believed that the power of the sword – the very thing the Anabaptists considered to be evil– was an essential part of the state’s structure from creation (now, would that make Rep. Bello some sort of a secular Augustinian?)

One wing of the Augustinian tradition identified with the Dutch Christian philosopher Herman Dooyeweerd rejects dualistic views of the state and insists that it is a unity of power and justice; in this view, power is foundational to state creation. The monopoly of the sword is necessary for the enforcement of public law. Without such power, ensuring even a modicum of public order is impossible. Public laws that lay down the rules of integration of society into a public legal community will remain laws on paper and civil law proper itself cannot be established and sustained.

Yet there is an unbreakable coherence between power and the state’s qualifying normative task expressed in norms of public justice.  In other words power, while foundational to it, may not be exercised arbitrarily by the state.  In other words,   this Christian tradition in political thought professes that there is a God-designed structure for the State,  but human acting and willing determine the direction it will take — for or against the side of justice.

Thus, while agreeing that the state’s duty is toward the whole society, Dooyeweerd restricts state power not by some supposedly external limit set by another institution – as in the case of human rights laws  -but by  the very nature of the state itself, which is a unity of power and justice.

Indeed, there is much in the Christian tradition that commends itself to contemporary debates on the origins and aims of the State but it is one often elided in what Schmitt himself would call the secularized “political theology” of the State.

For how the Christian tradition may address the question of the origins and aims of the state, see the first three chapters of my master’s thesis, downloadable here.

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Filed under Human Rights, International Law, Public Interest, State