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Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic
Here’s a libertarian originalist response to Adrian Vermeule’s catholic integralist common good constitutionalism, which may be summarized in the following lines of the essay –
“That’s why a constitution in a pluralist society should be limited to provisions that gain a supermajoritarian consensus. Vermeule’s essay should remind left-liberals that abandoning originalism permits judges to impose policies they will hate, should the ‘wrong’ judges get in power.”
I for one do not believe in a theory-less constitutional interpretation;the constitution is a battleground of ideas of the ideal political ordering on many levels. The very question of what constitutes the common good invites a clash of perspectives.
Our constitution itself is an interesting mishmash of liberal, social, and Christian ideas of constitutional ordering.
Yet it is true that more often than not, theory only goes to the foreground in the big order questions (the “construction zone” referred to in the essay); otherwise, constitutional interpretation is run-of-the-mill textual reading in the “zone of interpretation”– and this doesn’t mean theory is not involved in the deliberations. It is, but only in the background (though I won’t consider the issue of whether the President can make midnight appointments a simple textual exercise).
We all know China’s usual stance on international litigation” : stay away from it, when it goes against your interest. And because state-to-state litigation in international law is pretty much a mirror of its largely consent-based system, the challenge is to find exceptional grounds against the general rule.
Here Tzeng discusses possible grounds for compulsory jurisdiction within the World Health Organization Charter, notably Article 75, which provides: “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice. He links here too an opinion piece I wrote on the question last March 22 for the Philippine Daily Inquirer, pointing to China’s abject failure to provide timely notification on the outbreak under the World Health Organization International Health Regulations (2005).
I would add a “catch-all” (and admittedly novel) argument to his proposal, under the law of state responsibility: that given the scale and effects of this pandemic — nearly all 193 countries affected, so far — perhaps an argument can be made from general international law that China has no choice but to arbitrate (cf Art. 42 of the ARSIWA).
The safety, security and health of the world is a fundamental and common interest of nations that a breach in IHR (2005) obligations triggers compulsory jurisdiction.
After all, its intentional and willing breach of such obligations under Art. 6 and 7, given the nature of the contagion, resulted in mass deaths around the world, and counting, not to mention massive disruptions in the economic, social, political, and religious life of billions around the world.
I will expound on this approach in another post.
By Romel Regalado Bagares
A novel coronavirus
On December 30 last year, Dr. Ai Fen, Director of medical emergency at Wuhan Central hospital in Hubei province, received the lab results of a patient with flu-like symptoms that had proved to be resistant to prescribed treatment.
The lab results turned up a dreaded note: “Sars coronavirus,” according to an interview she gave with the Chinese magazine, Renwu, or “People,” translated into English by the British newspaper The Guardian and published on March 11.
It made her break into a sweat. After making sure she read the note correctly, she snapped a photo of the report using her smartphone and sent it to a colleague at another hospital in the city of around 11 million. By day’s end, that photo would circulate in chat groups, and reached another doctor at her hospital, Dr. Li Wenliang. It was the latter who would shortly blow the lid on the true nature of the virus.
But Chinese authorities, instead of immediately warning the public about it, censured Dr. Ai, she said in her Renwu interview. Her superiors even instructed her to tell staff not to wear protective gear when treating patients, which she disobeyed, for the sake of her colleagues.
The authorities also allegedly caused the arrest of Dr. Li, forcing him to sign a declaration that he will stop talking publicly about the virus. Dr. Li, after treating many of the patients himself, would later on die of the disease now known as “Coronavirus 2019” (COVID-19), which arose from the virus identified as “SARS-CoV-2,” a new coronavirus suspected but not proven to have come from bats or pangolins.
His subsequent death would spark a rare and massive online outburst of anger among Chinese citizens, who looked to him as a martyr.
The South China Morning Post also reported on March 13 that another doctor, Zhang Jixian, of the Hubei Provincial Hospital of Integrated Chinese and Western Medicine, had reported to China’s health authorities at an even earlier date – on December 27 last year – that the flu-like disease that had stricken a rising number of patients was caused by a new coronavirus.
However, by January 2, 41 patients admitted into hospitals in Wuhan “had been identified as having laboratory-confirmed 2019-nCoV infection,”according to a crucial study made by Chinese medical scientists and published by The Lancet, a noted British medical journal, on January 24.
More importantly, only 27 of the patients (or 66 percent of the patient population in the study) had links to the Huanan seafood market, the suspected “ground zero” of the outbreak. The rest of the patients, because they had no connections to the market, indicated human to human transmission. This latter set included one of the earliest cases, from December 1 last year.
Interestingly, this study was funded by a cluster of high-level Chinese national institutions – the Ministry of Science and Technology, Chinese Academy of Medical Sciences, National Natural Science Foundation of China, and Beijing Municipal Science and Technology Commission.
This makes the study official, being sanctioned by the highest echelons of China’s central government. Yet, despite this officially-sanctioned research results, on January 19, in their very first public statement to the World Health Organization (WHO), Chinese officials insisted it was a “preventable and controllable” animal-to-human disease, saying available evidence only connected it to the seafood market in Wuhan, where the new virus emerged.
The officials would finally confirm human to human transmission only two days later, as the number of sick residents coming to hospital emergency rooms in the city reached 1,523 a day – or three times the normal rate. This was already 19 days – or nearly three weeks – after The Lancet study’s confirmation of a novel coronavirus outbreak in Wuhan.
And now, nearly three months later, the world as we know it is gone; global supply chains – many of them dependent on China-based factories – grind to a halt, putting in deep doubt the seamless globalization they had underwritten all these years; airline and tourism industries worldwide falter; stock markets crash; universities abruptly shift classes online; offices adopt virtual or work from home arrangements; and entire cities or nations go on lockdown for extended periods, as governments try to “flatten the curve” on the deadly virus, which has already spread to more than 168 countries and regions around the world, with 378,679 cases and 16, 508 deaths as of March 24, according to the Johns Hopkins University Center for Systems Science Engineering.
Too, it has made the closure of borders a necessity, even in the Eurozone, a region premised on the free movement of goods and peoples. A global recession – defined as economic growth rate below 2.5 percent from the normal range of 3.5 to 4 percent – has arrived, according to the Financial Times on March 15.
COVID-19 and the Law of State Responsibility
The question is: assuming the allegations of an official coverup are true, is the Chinese government liable in some way for it under international law?
Under the law of state responsibility, China has certain international obligations it should have dutifully observed in dealing with the COVID-19 disease. The law of state responsibility defines the conditions and consequences of wrongful conduct of states under international law.
The determination of state responsibility involves two correlated grids: one, primary rules, which prescribe a certain conduct, depending on the legal regime in question; and two, secondary rules, which define the conditions under which an act is wrongful in international law and spells out the consequences of such internationally wrongful act.
Secondary rules are expressed in the 2001 Draft Articles on the Responsibility of States for Wrongful Acts (ARSIWA), a landmark document developed by the International Law Commission to codify customary norms of state responsibility, as well as in relevant case law, and general principles of law.
Generally, state responsibility is raised whenever a state commits an internationally unlawful act or conduct that breaches its international obligations regardless of whether an injured state at all seeks reparations for the damage it suffered as a result of such an internationally unlawful act.
This is known as the “objective interpretation of state responsibility”, which protects the integrity and stability of the international legal order. Thus, an international wrong done by a state does not become a right simply because no one complained against it.
The IHR (2005) as the applicable primary rule
China’s alleged suppression of information on COVID-19 is a violation of the 2005 International Health Regulations (IHR) established under the auspices of the World Health Assembly, the decision-making body of the World Health Agency (WHO), to deal with diseases of an international nature.
The IHR (2005) is an interesting species of international law, because it is a set of regulations established by an international organization. Nevertheless, the parties to it are states, and the WHO treats it as a treaty binding on member-states.
The purpose of the IHR (2005) is “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”
China, when it became a party to the treaty in the same year, declared that it “applies to the entire territory of the People’s Republic of China, including the Hong Kong Special Administrative Region, the Macau Special Administrative Region and the Taiwan Province.”
First drafted in 1969, it covered six “quarantinable” diseases, but was later amended in 1973 and 1981 to cover only three infectious diseases – cholera, plague, and yellow fever – thus reflecting the WHO’s success in fighting infectious diseases. However, when the first coronavirus epidemic – the Severe Acute Respiratory Syndrome ( SARS) – broke out in 2003 in China, the IHR could not be invoked for that reason.
At that time, China’s response to the outbreak in Guangdong province as early as November 2002 left many countries reeling from its after effects, as Chinese officials shunned transparency and cooperation, thus contributing to global spread of the coronavirus.
On May 23, 2005, the IHR was again amended to now apply in general to any “illness medical condition, irrespective of origin or source, that presents or could present significant harm to humans.” It also now covers any “public health emergency of international concern.” Such public emergency is now defined as “an extraordinary event which is determined, as provided in these Regulations: (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response.”
The new regulations took effect on June 15, 2007.
It is undeniable that COVID-19 is one such public health emergency of international concern, as it has been declared a pandemic – or “the worldwide spread of a new disease” – by the WHO on March 11, the very first to be called by the international body of a coronavirus. So far, it has wrought untold havoc on the world economy, aside from already affecting the right to life and the right to health of nearly four hundred thousand people globally. The IHR (2005) comprises the primary rules of state responsibility that prescribe conduct – international obligations– on a pandemic like the COVID-19 disease.
China’s Duty to Notify under the IHR (2005)
A WHO briefer explains that upon the first reports of a potential public health emergency of international concern, within its territory, a state is required to assess within 48 hours by applying a specific algorithm contained in Annex II of the IHR(2005), called the decision instrument. It is to use four decision criteria for the purpose – (1) the seriousness of the event’s public health impact; (2) the unusual or unexpected nature of the event; (3) the risk of international disease spread; and (4) or the risk that travel or trade restrictions will be imposed by other countries.
“In essence, the events which must be assessed are those that may fulfil one or more of the four decision instrument criteria, and the events which must be notified are those that meet at least any two of the criteria therein,” according to a WHO briefer.
The earliest report appears to have been made on December 27 last year by Dr. Shang, followed three days later by Dr. Ai and Dr. Li. So, on the basis of the IHR (2005) protocol, China had 48 hours to assess whether this “unusual event” is of the nature of an public health emergency of an international concern.
Then, under Arts. 6 and 7 of IHR (2005), China had the duty to inform the WHO within 24 hours of determining the nature of the virus, using a prescribed checklist, as well as any measure it has deployed to deal with its outbreak.
The Smoking Gun?
The critical date here appears to be January 2 , when 41 patients “had been identified as having laboratory-confirmed 2019-nCoV infection,” in the words of the Lancet study. This Lancet study could be the proverbial “smoking gun” in any international litigation.
And it is baffling that the study – with the names of a stellar cast of Chinese medical scientists appended to it – was at all allowed to be published in an independent and reputable foreign medical journal by the Chinese government.
Given the official nature of this research study, this amounts to a direct admission by the Chinese government that they knew early on about the nature of the contagion in Wuhan. And within 24 hours of this determination, China, through its designated National IHR Focal Point, should have already alerted the designated IHR Contact Point.
After such notification, China also had the duty to communicate to the WHO “timely, accurate and sufficiently detailed public health information available.” This includes “case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed.” China was also expected to report the challenges posed by the virus, and any assistance it may need to respond to the potential public health emergency of international concern.
As the available facts show, Chinese authorities allegedly quarantined information and any public discussion about the COVID-19 for nearly three weeks, when early containment to prevent its spread beyond Chinese borders was supposed to be the order of the day.
They also reportedly refused offers of assistance from the WHO and from the US Center for Disease Control and Prevention (CDC) in those early stages of the outbreak. A US CDC report would later say that the “sequences from U.S. patients are similar to the one that China initially posted, suggesting a likely single, recent emergence of this virus from an animal reservoir.”
Worse, China’s provincial officials even allegedly prosecuted whistleblowers.
In the Corfu Channel Case (1949), the International Court of Justice (ICJ) held that no state may “knowingly allow its territory to be used for acts contrary to the rights of other States.” Such a general principle of law means that China is duty-bound to ensure that individuals do not cause harm to the rights of other states. Moreover, the acts of persons exercising public authority are attributable to the state. This is consistent with the principle of the unity of the state, where the conduct of any of its organs, whether in the exercise of legislative, executive, or judicial functions, are considered its own acts in international law.
Thus, ultimately, China is responsible for the decisions taken by its public officials to keep under wraps crucial information on the virus for nearly three weeks when, under the IHR (2005), it had the duty to inform the world of the public health emergency within 24 hours of assessing its dangers.
That long delay may have caused many countries the only window of opportunity they had to prevent the contagion from spreading worldwide.
The Guardian reported on March 11 about scientific simulations showing that if the interventions could have been brought in a week earlier, 66 percent fewer people would have been infected, and if the same interventions could have been implemented three weeks earlier, it would have reduced the cases by 95 percent.
Breaches and Reparations
What are the remedies available under international law for the injury suffered by other states as a result of China’s alleged mishandling of the COVID-19 pandemic?
China may be liable to pay reparations to injured states over its failure to promptly notify the world of the outbreak of the SARS-CoV-2 virus as required by the WHO’s International Health Regulations (2005).
Whenever a State commits an internationally unlawful conduct, it must pay reparations to the injured parties for the damage they suffered . It is a principle of international law that the breach of an agreement involves an obligation to make reparation in an adequate form,” as the landmark Chorzow Factory Case (1927) would put it.
Reparation, per Chorzow, “must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”
If restitution is no longer possible, “payment of a sum corresponding to the value which a restitution in kind would bear” will suffice, along with an award of damages for loss sustained which would not be covered by restitution in kind or payment in place of it.”
According to the 2001 LaGrand Case, an assessment of damages may also come with an award of satisfaction, or a formal apology and assurance from the offending state that its unlawful conduct will not be repeated.
Both the apology and the pledge of non-repetition are important, because if that same state once again violates the same obligations in the future, these may be taken in evidence in another proceeding for reparations for purposes of ascertaining punitive damages, the repetition being a doubly flagrant and morally reprehensible violation of its international obligations.
Causal link requirement
As the obligations in question involve a positive duty that must be discharged to prevent the spread of an infectious disease or a public health emergency of international concern, reparations may involve a determination by an international tribunal of a causal link between the alleged breach of an international obligation and the damage suffered by the injured States.
One applicable model of causation is the “sufficiently direct and certain causal nexus test“ established by the International Court of Justice in the Bosnian Genocide Case (2007). This means that an injured state must establish from the case as a whole and with a sufficient degree of certainty that the pandemic would have been averted had China complied with its treaty obligations under IHR (2005).
Or, it may be a simple test of an obligation of conduct as in Corfu Channel, where the failure to discharge a positive duty to notify under customary international law was enough to assess damages against the offending state, Albania, which failure was deemed a form of negligence. In fact, in the Rainbow Warrior Arbitration (1986), it was held that mere violation of an obligation, “irrespective of material damage, can cause moral or legal damage.”
Indeed, it may be argued that the duty to notify codified in the IHR (2005) is not only a treaty norm but also a rule that, since the treaty was established in 1969, has crystallized as well as a norm of customary international law considered binding on all states, given the scale and effects of the dangers it addresses.
Moreover, the unprecedented spread of the deadly disease may yet give rise to a recognition that the failure to notify the world on public health emergencies of international concern now involves a fundamental and common interest of the international community of nations.
In such a case, even an uninjured State may bring a claim against China on behalf of the international community, under Art. 48 (1)(b) of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts. In any case, the liability for damages assessable against China for its alleged breach of international obligations would almost certainly involve staggering amounts.
Dispute settlement under the IHR (2005)
Art. 56 of the IHR(2005) provides member states with a graduated procedure for settling any dispute on the interpretation or application of the regulations.
Firstly, the provision requires parties to a dispute to settle it peacefully according to an agreed mechanism, including good offices, mediation, or conciliation. Secondly, if it fails, they may then refer it to the Director General, “who shall make every effort to settle it.”
However, the current WHO Director General, Tedros Adhanom Ghebreyesus, an Ethiopian, may not be the best person to settle it, having been repeatedly criticized by various sectors for his lavish praise of China’s response to the Wuhan outbreak.
Or a member state party may also declare in writing to the Director General that it accepts compulsory arbitration to settle such dispute. In such case, the arbitration will be conducted under the Permanent Court of Arbitration’s Optional Rules for Arbitrating Disputes between Two States applicable at the time a request for arbitration is made.
Any award made pursuant to the arbitration will be binding and final on the parties. Member states are also allowed to agree to settle their disputes using other dispute settlement mechanisms. However, if the dispute is between a member state and the WHO itself, it will be submitted to the Health Assembly.
China has not made any reservation on, or rejection of, any provision of the IHR (2005). However, it has not submitted a written declaration accepting compulsory arbitration.
Shifting the narrative?
But already, China is beginning to shift the narrative away from its alleged responsibility over the pandemic.
In early March, the Xinhua News Agency, a government mouthpiece, published an editorial claiming that “the world should thank China” for the huge sacrifices and extreme measures it had undertaken to fight the new coronavirus, which supposedly bought the rest of the world time, Asian Nikkei reported on March 11.
The Guardian also reported on March 13 that the Chinese Foreign Ministry now accuses the United States Army of having actually brought the virus to Wuhan, and Chinese diplomats and state media are echoing the allegation.
Also, the Chinese government just published a book, A Great Power’s Battle Against Epidemic, which praises Chinese Premier Xi Jinping’s “strategic foresight and outstanding leadership ability” in fighting the outbreak in Hubei province, according to the Asian Nikkei.
But the book was quickly withdrawn from circulation when Hubei residents protested that it was inappropriate to distribute the book when the battle against the virus not yet over.
President Donald Trump would not be outdone, saying China should be held to account for the “Chinese virus.”
On March 21, Time magazine quotes Czech Interior Minister Jan Hamacek as saying that China is “the only country capable of supplying Europe with such amounts.” The magazine also quotes a noted China expert Julian Ku, professor of international law at Hofstra University in New York as saying that the Chinese government hopes to leverage its experience in bringing the new coronavirus under control.
“The Chinese government’s failures … will be less harshly viewed in light of the failures of other governments to respond effectively as well,” he told Time.
WHO: the weakest link?
Even the WHO Director General Tedros Adhanom Ghebreyesus had praised the Chinese efforts to combat the pandemic, and even called on countries to avoid travel bans to and from China.
“We reiterate our call to all countries not to impose restrictions that unnecessarily interfere with international travel and trade, Tedros said in an official WHO statement on February 4. “Such restrictions can have the effect of increasing fear and stigma, with little public health benefit.”
Tedros’s praise for the Chinese response to the virus baffled some experts, according to a Washington Post report on February 8. These experts think that the international body’s positive appraisal of the Chinese handling of COVID-19 early on may have given other nations a false sense of security that the disease has not spiraled out of control.
“We were deceived,” Lawrence Gostin, a professor of global health law at Georgetown University who also provides technical assistance to the WHO told the Washington Post. “Myself and other public health experts, based on what the World Health Organization and China were saying, reassured the public that this was not serious, that we could bring this under control.”
Others are more caustic in their criticism.
On March 17, The Hill, a conservative American online magazine, published an opinion piece by Bradly A. Thayer, a professor of political science at the University of Texas and co-author of the book How China Sees the World: Han-Centrism and the Balance of Power in International Politics, and Lianchao Han, vice president of Citizen Power Initiatives for China. The two said Tedros and China’s XI Jinping “should be held accountable for recklessly managing this deadly pandemic.”
They accused Tedros of helping China “play down the severity, prevalence and scope of the COVID-19 outbreak” after meeting Xi on January 28 in Beijing.
They also noted China’s connections to the WHO Director General’s country of origin Ethiopia, which, they say, is now called East Africa’s “Little China” with heavy Chinese investments. Indeed, it has become “China’s bridgehead to influence Africa and a key to China’s Belt and Road initiative there.”
They also provided little known facts about Tedros, who, they say, was elected to his position with the WHO in 2017 “despite the fact that he was not trained as a medical doctor and had no global health management experience.” Instead, he was a former minister of health and minister of foreign affairs for Ethiopia before going to the WHO, where one of his first official acts was to propose to appoint then-Zimbabwe dictator Robert Mugabe as a WHO goodwill ambassador.
If so, we may see for the first time a suit for “complicity” of the WHO, an international organization – an area in international law that is admittedly still in development.
“Capable of repetition, yet evading review…”
In November 2017, an article in the Smithsonian Magazine asked whether China is going to be ground zero for a future pandemic. The author, Melinda Liu, argued that the country “is uniquely positioned to create a novel flu virus that kills people.” Why so?
“On Chinese farms, people, poultry and other livestock often live in close proximity. Pigs can be infected by both bird flu and human flu viruses, becoming potent ‘mixing vessels’ that allow genetic material from each to combine and possibly form new and deadly strains. The public’s taste for freshly killed meat, and the conditions at live markets, create ample opportunity for humans to come in contact with these new mutations.”
In addition, in a country of one billion people, only two percent receive flu shots annually, she wrote, underlining a grave lack of community immunity for flu.
There’s also the problem of the repressive political system, in the country, shown in the Chinese response to SARS outbreak, in which “Chinese apparatchiks initially tried to cover up the epidemic, creating a worldwide scandal.”
She did note an improvement in China’s handling of the H5N1 bird flu outbreak in 2013. Alas, the improvement would not last long.
Only three years later, Liu’s prediction would come true – a new pandemic from China has gripped the world, and it is with such virulence that, in the United States alone, it could kill as many as 1.7 million people, according to a US CDC worst case scenario estimate.
If anything, China’s immediate responses to the SARS and COVID-19 pandemics seem to underline that public health emergencies of international concern and authoritarian systems lacking in transparency and political freedoms make for a dangerous mix.
A formal legal proceeding before an international tribunal, where evidence for or against China’s alleged responsibility for the pandemic are heard by impartial judges, may be the best way to establish the truth about COVID-19, and to stop another pandemic from ravaging the world.
Yet it remains a big question whether China would allow itself to be dragged into yet another contentious international arbitration.
Injured states may take the first step of asking the good offices of UN Secretary General Antonio Guterres, to find a common solution with China for the damage they suffered as a consequence of the latter’s failure to promptly notify the world about the true nature of contagion that emerged in Wuhan late last year.
A shorter version also appeared in the Philippine Daily Inquirer as an opinion piece on March 22, 2020.
By Romel Regalado Bagares
A statement issued on New Year’s Day by the Indonesian Ministry of Foreign Affairs against alleged Chinese encroachments over the Indonesian Exclusive Economic Zone (EEZ) in the Natunas may prove to be a diplomatic and legal game changer in the increasingly volatile South China Sea.
For the very first time, a third party Association of Southeast Asian Nation (ASEAN) member- state invoked the landmark 2016 arbitral ruling in the South China Sea case filed by the Philippines three years earlier against Chinese expansionist moves in the region.
Indonesia’s broadside came following alleged incursions by Chinese coastguard vessels in the Natuna Sea, which lie nearly 1,100 kilometers south of the Spratlys in the South China Sea. It features an archipelago of 271 islands and resource-rich waters.
China claims the Natunas is subject to its jurisdiction under the UN Convention on the Law of the Sea (UNCLOS) as “relevant” waters that had been visited by Chinese fishermen since time immemorial.
A blunt rebuff
The Indonesian MFA however said the Chinese claim is without any legal basis under the UNCLOS, adding that its claims of historic rights have all been repudiated by the Permanent Court of Arbitration’s 2016 ruling.
In addition, Indonesia bluntly rejected any suggestion of bilateral talks with China to delimit what the latter says are overlapping maritime jurisdictions, as there are none to speak of. .
“Based on UNCLOS 1982, Indonesia does not have overlapping claims with the PRC [People’s Republic of China] so that it is not relevant to have any dialogue on maritime boundary delimitation,” the four-paragraph Indonesian statement said in part, according to a rough translation of the original Bahasa.
Too, under UNCLOS rules, recognition by Indonesia of any maritime overlap forecloses any resort to the landmark treaty’s compulsory dispute mechanisms successfully used by the Philippines to bring China to arbitration, despite the latter’s fierce objections.
Thus, the Indonesian statement may also be sending China a subtle signal that any further unwelcome acts in the Natunas may force Indonesia’s hand to steer for a direction Beijing would not want to take itself – yet another arbitration case where it will have little control of the outcome.
China appears to expand the exception outlined by PCA to the UNCLOS regime that allows traditional fishing in territorial waters by competing claimants (as it so held on the question of Scarborough Shoal claimed by both the Philippines and China).
But notably, the Arbitral Court stopped short of saying traditional – or subsistence – fishing may also apply to the EEZ, a ruling that comports with established international norm on the question.
What UNCLOS does allow in the EEZ is fishing for the “surplus catch” by other states outside of the coastal state’s Total Allowable Catch (TAC), a scientific measure of that state’s fishing capacity, but only with the latter’s consent.
Ironically, during the UNCLOS negotiations, China itself had questioned the allotment of a surplus catch in the EEZ for other states, saying that developing countries should be allowed to keep all fishery resources for itself, as noted by the PCA in its judgment on the Philippine arbitral case against China.
In any case, Chinese poaching in the EEZs of its ASEAN neighbors can hardly be considered subsistence fishing. Instead, it often involves what experts call China’s “Second Surging Sea Force” network of large fishing fleets working in tandem with Chinese navy and Coastguard vessels.
A loud chorus from the ASEAN trio
Jakarta’s rebuff of Beijing forms part of an increasingly loud chorus of opposition to China’s expansionist moves in the South China Sea, as it joins formal moves by two other major economies – Malaysia and Vietnam – to set aside the Chinese Nine Dash Line-claim in favor of accepted international rules.
In November last year, a top Vietnamese diplomat announced that his country is now seriously considering to follow Manila’s earlier lead to bring China to arbitral court over repeated Chinese intrusions in Vietnam’s Vanguard Bank, an oil-rich section of its EEZ.
Malaysia followed this up in late December by filing with the United Nations a claim for an Extended Continental Shelf (ECS). It made the filing under Article 76 of the UNCLOS, which allows a coastal state to claim the outer limits of its continental shelf beyond the 200-mile limit, for an additional 150 miles, under certain geological conditions. It is a legal move that also eats substantially into the Chinese Nine Dash Lines.
On January 3, or two days after the Indonesian MFA’s declarations, Malaysia’s own Ministry of Foreign Affairs issued a statement saying it does not fear Chinese reprisals over its ECS filing.
The three countries’ combined message should unsettle China, as it confirms Beijing’s failure to marshal support among the region’s biggest economic and political players – not counting the Philippines – for its rejection of the PCA’s ruling striking its Nine Dash Line-claim.
Beijing, in utter disregard of the ruling, then embarked on a building spree – now largely completed – over maritime features declared by the PCA as part of the Philippines’ EEZ.
Indonesia, along with Vietnam, Malaysia, Japan, and Thailand, had each sent a diplomatic observer to the Permanent Court of Arbitration proceedings at the Hague where the Philippine arbitral case against China was heard. With the exception of Thailand, all the countries have a running maritime dispute with China.
During the PCA hearings in the Philippine case, Vietnam had as well filed a brief supporting Manila’s case against China.
Ironically, with the election to office of President Rodrigo Duterte in June 2016, Manila has backpedaled on its stance towards China, opting to take a conciliatory route towards Beijing. Manila had filed the arbitral case under his predecessor, Benigno Aquino III’s administration.
Three years into his term, Mr. Duterte, in addition to his contradictory statements over the country’s arbitral case victory, has so far continued his policy of rapprochement towards China, despite it not sitting well with most of the Filipino populace, not to mention, with his own military advisers.
ASEAN chairmanship change
New Year’s Day also triggered a change in leadership of the ASEAN under the regional grouping’s charter, with its chairmanship automatically vested for a one-year term with Vietnam, from Thailand’s in 2019.
Article 31 of the ASEAN Charter provides that “the Chairmanship of ASEAN shall rotate annually, based on the alphabetical order of the English names of Member States.”
Vietnamese chairmanship of the regional grouping may also prove pivotal to current ASEAN efforts at crafting a binding Code of Conduct regulating the actions of rival claimants in the region.
This – and the ASEAN trio’s open defiance of China on the South China Sea question – may yet push Mr. Duterte to rethink his own options towards Chinese occupation of maritime features that, according to the PCA, are part of the Philippines’ own EEZ.
This piece appeared in the Philippine Star’s online edition on January 5, 2020.
President Rodrigo Duterte’s vituperation against the Roman Catholic Church is unprecedented in recent Philippine political history. Not even the late dictator Ferdinand Marcos’s record matches it.Yet, in a predominantly Catholic country, his outrageous display of irreligiosity appears to perturb only a few.
His harangue hits at the heart of Orthodox Christianity: the doctrine of the Trinity and the crucifixion of Christ. It highlights the biggest catechetical challenge as yet to the Filipino Church, even as it finds itself in yet another crossroads.
In the broader context, the Francis Papacy has exposed seismic rifts between Church progressives and traditionalists. His “Amoris Letitia” threatens to tear the very fabric of the Church’s existence; indeed, conservative Catholic leaders see his exhortation as an immoral rewriting of marriage, and a door through which liberal ideas are smuggled into the Church.
Too, the epidemic of pedophilia in the American Church and elsewhere that has devoured thousands, and Francis’s failure to decisively address it, has served to further undermine the global Church’s integrity as a clear moral voice amidst a postmodern amoral wilderness.Worse, the Vatican itself has been wracked by revelations of high immorality that would make even libertines blush.
Here, post-EDSA 1986 politics saw Catholic bishops playing footsie with the powers-that-be (think Pajero bishops!). This, even as they actively opposed the government’s program to promote family planning in the country and prosecuted such a harmless soul as Carlos Celdran for his schoolboy antics.
All we see now is a Catholic Bishops’ Conference of the Philippines reluctant to speak a common voice of conviction, not a body of believers a prophetic Cardinal Sin once led, although the recent bombing of the Jolo Cathedral, which killed 21 Catholic faithful and wounded nearly a hundred others,has forced them to issue a pastoral letter decrying the “cycle of hate” that has gripped the country.
The pastoral letter, issued at the close of the CBCP’s 118th plenary assembly, also made an oblique reference to the President’s anti-Catholic vitriol, but said they are responding to it with “silence and prayer.” At least, for now.
To my Protestant eyes, what we have is a Filipino Church at its politically weakest.
An astute politician, the President knows this. Like Arian Vandals besieging St. Augustine’s beloved city of Hippo and its Latin Christian culture, he is exploiting the crises facing the Church to whittle away at the foundations of what is potentially the sole unified opposition to his bloody drug war, and yes, his vision of the future.
He also understands that this is no longer the time of Thomas Aquinas, who, at the height of Christendom in Europe, taught that the Church has a moral right to excommunicate and depose from power a ruler who is leading the faithful away from the gospel.
But it is beautiful to see such weakness of the Church typified by Caloocan Bishop Pablo Virgilio David, a soft-spoken French-trained bible scholar who has chosen to walk with the poor and the powerless of his diocese.
Or by Sister Maria Juanita Daño, RGS, who has lived through the horrors of Oplan Tokhang in San Andres, Bukid with her fellow parishioners. Bishop Ambo and Sister Nenet exhibit the poverty of spirit of the Sermon on the Mount.Or by the Vincentian fathers who have given refuge to the families of victims of the deadly scourge of tokhang that has decimated scores of lives in urban poor communities in Quezon City.
They also reaffirm a central message delivered by Pope Pius XII from the Vatican on Christmas Day, 1942. In his address, Pius XII said every human power has a duty to give back to the human person “the dignity given to it by God from the very beginning.” This, said Pius XII, is only possible where people once again recognized a divinely instituted juridical order, one “which stretches forth its arm, in protection or punishment, over the unforgettable rights of man and protects them against the attacks of every human power.”
These brave words said at the height of the Nazi onslaught was “a critical turning point” for the idea of universal human rights, subsequently defining postwar history and shaping governments in Europe, argues Harvard law professor Samuel Moyn’s book “Christian Human Rights”(2015).
In 1945, diplomats drafted a Universal Declaration of Human Rights that echoed Pius XII’s words, saying the Declaration intends “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.”
The Filipino Church badly needs to rediscover this legacy for such a time as ours.
This essay was first published by Verafiles on January 31, 2019 here.
This was my concluding remarks in a legal assessment of media ownership in the Philippines that I wrote for a project by Verafiles with the Reporters Sans Frontieres (RSF)
Formal legal and constitutional protections on free expression abound in contemporary Philippines. But these have largely been pursued along the lines of an individualistic stress on the Bill of Rights, framed as guarantees against state encroachments into individual spheres of freedom.
But this is really to be expected from a dominant discourse of liberal political and legal theorizing on rights as inhering only to individuals; this is not to disparage individual rights, which are important as they are.
The Philippine Supreme Court has acknowledged the Bill of Rights’ debt to the Enlightenment idea of reason as a mode of discovering the truth in its different facets. But more than that, it frames the Bill of Rights, where the constitutional protections against restraints on free speech and free expression are embodied as a hedge around the state, as it were. Perhaps, one of the most eloquent and explicit declaration about the purpose of the protections it accords to the citizen has been made by constitutional scholar Joaquin Bernas, S.J. who, in explaining the intent of the provisions found in the Bill of Rights of the 1987 Charter, said:
First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. [italic ours]
But batting for media pluralism as a good state of affairs will not be helped by such a narrow frame of argumentation. This then will require a closer and creative reading of the Constitution and other legal sources, to be able to better account for why as a matter of state policy, a plurality of media sources in contemporary Philippine society would augur well for a vibrant public life.
There is, as the political philosopher Jonathan Chaplin remarks, borrowing from the legal philosopher Mary Ann Glendon, a missing dimension of “sociality” in much of liberal theorizing on institutional rights, which has been decidedly individualistic in orientation. “Because contemporary liberalism lacks an adequate notion of sociality,” says Chaplin, “liberal legal, constitutional, and political [theories] have proved unable to generate a convincing account of the reality and character of the legal rights of institutions”.
As Chaplin argues, “[t]he empirical observation that many social institutions themselves do have positive legal rights is indisputable, yet liberal individualism seems unable to offer much beyond an implausible contractualist explanation of their origin and status” Liberal theorists tend to construe the phenomenon of institutional rights as merely derived from the rights of associating individuals rather than as having some independent foundation and status not finally reducible to individual rights.
In practical terms, what this means is that the state ought to recognize the proper place of a plurality of institutions – in our case – of media institutions, in a democratic deliberation. Along that line, free expression as a right best flourishes with a legal framework where such a structural or an associational plurality is also promoted and pursued.
There are ample constitutional sources for safeguarding and ensuring media pluralism:
The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. [CONST. art. XVI, sec. 11(1)]
The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.” [CONST. art. XII, sec. 19]
The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press[ CONST. art. XVI, Sec. 10]
The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good [CONST. art. XIII, Sec. 2]
These constitutional provisions hammer the important point about “structural pluralism” as a corrollary to “viewpoint pluralism”, that for individual freedoms to flourish, they as well require the flourishing of various supporting institutions.
It is now a given that the right to free expression and the right to information are two sides of the same coin. One is the corollary of the other. The theory is that a better, rational, discussion of public matters is best achieved when citizens have at their disposal information pertinent to the issues at hand. The quality of such public discussion is only as good as the pertinent information made available to citizen-discussants.
An early theory of American constitutional design, expressed in an oft-quoted concurring opinion of J. Brandeis –a master of legal aphorisms – holds that:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of…. government.
They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Explicit in the necessity of providing citizens “an opportunity to discuss freely supposed grievances and proposed remedies” so as to build that “path to safety” towards a stable society is the requisite means – free speech and assembly; implicit in the process is the need to broaden the opportunity for public discussion by assuring a wide variety of avenues for it.
The legal and jurisprudential support for individual rights to free expression and right to information is robust and well developed in Philippine experience. But viewed in Glendon’s – and Chaplin’s – sense of sociality, the right to free expression and the right to information are now to be understood in a broader sense; that is, that the individual exercise of such rights must be correlated with institutional or associational support.
It is important that the news media maintain credible internal checks against the encroachment by the crass business bottom-line into the editorial room. Having said that, these internal checks guaranteed by the strict separation between the advertising room and the newsroom should be matched by external checks against a situation where a single dominant player in the media market controls both access to news and the news content.
The former is a function of how media owners understand the grand traditions that make good journalism work the way it should. The latter is a function of how the government understands the idea that a proliferation of independent news media assures the polity of a vibrant public discourse crucial to a functioning democracy. This is a question of extreme urgency, given contemporary trends in politics here and abroad about widespread distrust towards mainstream media and the rise of social media is the principal source of information for many.
Social scientists have a name for it: triangulation. The more independent media outlets reporting about the same issue or event, the more confident we are that we are getting all possible angles to the news of the day. The implications of just one or two giant business interests gatekeeping what gets to be reported as news by various media outlets should give us pause.
Media companies are a-typical in the sense that while on the one hand, they are supposed to serve the public interest in some way, the model that has so far proved sustainable, if barely for most, is that of a profit-driven, business enterprise. Therein lies a seemingly irreconciliable dialectic. In Philippine experience at least, we have not seen much of a media enterprise that is not just one of many interests across different business sectors owned by the same business empire, family-owned or otherwise.
This all the more drives home the point about the necessity of the state itself stepping in by setting up an effective system of checks and balances against media monopolization. In any case, as the discussion has already shown, it is not just a legal duty but a constitutional one for the state. While we have benefitted greatly from the earnest cultivation of individual freedoms, we have however neglected that other set of constitutional protections against media concentration that also threatens the same freedoms, if in a more insidious way.
In much of theorizing on structural pluralism in relation to civil society, the plurality of non-state actors participating in public discourse is seen as a normative goal; it presents a buffer to state overreach, and primordially, a mediating layer between individuals and the state.
In another, though, relevant context – on the question of the regulation of political advertising, that is – J. Mendoza has written about the constitutional command against political inequalities that justifies government regulation and the deep principle he refers to rings through for our concern as well:
The notion that the government may restrict the speech of some in order to enhance the relative voice of others may be foreign to the American Constitution. It is not to the Philippine Constitution, being in fact an animating principle in the document. Indeed, Art. IX-C [Sec. 4] is not the only provision in the Constitution mandating political equality. Art. XIII, [Sec. 1] requires Congress to give the `highest’ priority to the enactment of measures designed to reduce political inequalities, while Art II, [Sec. 26] declares as a fundamental principle of our government ‘equal access to opportunities for public service.’ Access to public office will be denied to poor candidates if they cannot even have access to mass media in order to reach the electorate. What fortress principle trumps or overrides these provisions for political equality?
A side remark: in the latest case of GMA v. Comelec, the Supreme Court has unfortunately made a counter-intuitive ruling that defeats the purpose for which the Fair Elections Act was passed in the first place; the ruling practically gives the moneyed candidates more room to wiggle and reverses Osmena in the result, even if it upholds its original intent. But perhaps, this situation only points to the fact that we need more than regulation of political advertising if we want wide-ranging electoral reforms: we have to look at the necessity of campaign finance and party system reforms, to begin with.
Media monopolization courts the danger of speech being shaped by and directed towards a dominating commercial interest.
In the language of jurisprudence, it is in the “substantial interest” of government to regulate media monopolization precisely for that reason.
Yet, as this study has shown, we face multiple challenges to establishing media pluralism.
To begin with, there are various structural issues that require our immediate attention.
First, there is the seemingly incoherent system of rules concerning the intersection of mass media and public utilities. Such incoherence has often resulted in lax or incompetent regulation.
Second, there is the lack of a dedicated media authority that specifically deals with monopolistic arrangements. What obtains is a system of several overlapping institutions that deal separately with franchise, standards and competition. What this means is that it is difficult to develop administrative competence with a deep appreciation and respect for media pluralism and freedom where the authority to regulate is widely dispersed. The current system also requires close coordination between and among regulatory agencies but this coordination depends to a large extent on a proactive and enlightened regulators.
Third, there is the ever-present specter of regulatory capture. Constitutional and legal requirements on ownership of public utilities and media outfits have been ostensibly rendered ineffective by half-hearted regulation. This regulatory failure has a direct effect on the form and shape of the Philippine media landscape.
Fourth, related to this is the lack of legal safeguards against conflicts of interest of regulators. Very little legislation has been made to address this “revolving door” – the quick transition of individuals from working as a public officer to a private employee, and vice versa.
In this situation, public officers often have to deal with the moral hazard of exercising discretion in a manner that may unduly benefit private companies with the expectation that they may eventually exploit such benefits as a potential hire in the future. Similarly, newly elected or appointed public officers from the private sector may unduly use insider information obtained in their prior employment to create unfair advantages for their industry or company.
To date, only the PCC’s enabling law has a meaningful set of qualifications required of its commissioners designed to avoid such situations of conflict. This calls for a wide-ranging legislative reform.
Fifth, there is the issue of media ownership transparency. This exercise in legal assessment has also shown how current rules on corporate disclosure are inadequate to address the established phenomenon of corporate lawyering. Even anti-dummy legislation appears inadequate to address the problem, precisely because corporate layering requires active investigation beyond what is available on the face of corporate papers filed with the Securities and Exchange Commission. At the same, as seen in the Gamboa ruling, regulatory agencies themselves appear to be remiss in their legal duty to enforce regulation. Transparency is important, given the strong tendency we see of interlocking ownerships of media businesses in the Philippines.
To close: the current hype given to the “convergence” of public utilities, mass media and new media promises to present a greater challenge to the cause of democratizing media, if we follow Tiglao’s pointed allegations about the vertical and horizontal reach of the Salim empire in the Philippines.
Winthrop Yu, the President of the Philippine chapter of the Internet Society, has shared with me in an online conversation a thought experiment – that is, posit a contest between two teams consisting of the existing “duopolies”, PLDT and Globe v. GMA and ABS-CBN. “If the barriers between media and telcos were lowered, which doupoly would prevail and eventually dominate the medium and the message?” he asks.
He said he would place his bet on PLDT and Globe. “Thus, the threat to democratic space.”
I think he is not in the wrong, if we consider that there are now probably more smartphones than television units in the country. If Internet penetration reaches more Filipinos in the next few years, such a “convergence” will rule the day.
Sponsorship speech of Commissioner Bernas, Record of Constitutional Commission, Vol. 1, p. 674, July 17, 1987.
 Jonathan Chaplin, Towards a Social Pluralist Theory of Institutional Rights, (3) Ave Maria Law Review 147-149 (2005).
 Id. At 148.
 Whitney v. California 274 U.S. 357 (1927)
 288 SCRA 472, 473 (1998). CONST. (1987)