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The long march through the halls of a “democratic” legislature?

Samuel Moyn has a new thought-provoking (if counter-intuitive – at least for liberal ears) piece on the “juristocracy” that the New Deal Left had built and is now apparently turning against itself.

His point is that liberals should forget it, and instead draw the battle lines away from courts into democratic politics itself (perhaps, his shorthand for control of the legislature?)

Of course, the underlying theory here is of the legislature as the representative of the people, it being an assembly of elected officials.

So he writes:

In the academy, we need less preparation for constitutional politics and more for democratic engagement. Finishing schools for elites whose graduates, in the New Deal, once set themselves the goal of serving the people’s legislature have become anterooms to the judiciary, whispering in the ear of a judge as a clerk the highest initial reward, and ascent to the Supreme Court (now totally controlled by justices who studied at either Harvard or Yale law schools) the ultimate prize.

More training for democratic practice among citizens would also counter the prestige of “constitutional theory” among scholars. That activity rose over the timespan of progressive defeat under juristocracy, but spiked in the 1980s and 1990s, as kind of a cheerleading section intended to buck up liberal spirits in an age of slow-motion political collapse. To read its main works is to find a lot of longing for a lost past or yearning for an unavailable future—pining for Earl Warren’s Court, or the New Deal, or a legendary period of “republican” virtue, syncopated with vague hopes for a future when friendly judges will rule.

This is to a large degree, a recognition that court battles are always ideological battles, fueled by differing visions of the common good, of the ideal social and political ordering:



We will always have judges. Any interpretation of law is a form of rule, and there is no way—contrary to what many of the founders believed—of disentangling “judgment” and “will.” It is for that reason that democrats from Jeremy Bentham (or even Thomas Hobbes before him) through our time have attacked interpretations of judicial power that conceal the ideological choices that saying “what the law is” inevitably involves. No wonder, then, that democratic theorists have long insisted on restraining judges, even while acknowledging that their activity necessarily involves some interpretive freedom to use and abuse. There are disputes to settle under rules, laws to apply to new fact patterns, and overreaching executives to contain.



And what is very telling in Moyn’s account is the liberal’s un-inhibited expression of law as religion, with its own pantheon of saints, and its own set of creeds, its avowals of secularity notwithstanding:

Lately the enthusiasm for judicial empowerment has taken the form of unseemly heroine worship, with Ruth Bader Ginsburg and Sonia Sotomayor elevated to the status of secular saints. It is a kind of juristocratic feminism among legal elites to match the reigning neoliberal one among the professional class in general.
But instead of merely reviling judges on the other side of the ideological divide while worshiping one’s own, in a pantheon of angels and demons, any serious democrat should reject the religion of the judiciary itself. Other liberals trying to get through a dark night are clinging to the hope that, cajoled by strategic genius Elena Kagan, John Roberts might tack to the center in a few crucial cases. The truth is that the prospect of a “centrist” coalition is more of an anxious fantasy than a political opportunity. Even if it works, it is a distinct improvement on full-scale reaction at the Supreme Court in the same way that a chronic disease is better than a terminal diagnosis.”




It is in democratic politics where the ideological battles are best fought, where Democrats must seek to reclaim the allegiance of the hearts and minds of the broad masses of the American electorate. You convince them that the Democrat’s idea of political ordering is the best possible outcome there could be, and before long, even the Court will take the hint and will be led by it.

The problem really is that set of first principles from which judges divine the meaning of the Constitution — these principles direct the court’s understanding of such foundational concepts as due process, the common good, and even public morality.

The fragmentation of modern life inevitably opens judicial processes to internecine if unending warfare based on conflicting views of ultimate commitments.

But just what is a democratic politics via the legislature that Samuel Moyn argues for if it only means the rule of the majority, without recognizing the same ideological premises that will animate such a shape of politics?

Contrary to Rawls, a thin account of politics founded on the assumed primacy of right rather than the good is mere postponement of the inevitable.

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Throwback: Remarks made at a University of Malaya forum on the Lahad Datu, Sabah incident (2013)

On March 22, 2013, the University of Malaya hosted a forum on the Sabah question in the wake of the Lahad Datu incident, in which around 200 followers of the Sultan of Sulu launched an attack, purportedly to enforce the old Sultanate’s ownership of portions of what used to be called North Borneo.

I, and Prof. Julkipli M. Wadi of the Islamic Studies program of the University of the Philippines Asian Center, were the Philippine representatives in the conference, in which senior Malaysian scholars who prepared the historical case for Malaysia’s successful prosecution of the 2002 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) before the International Court of Justice (ICJ) were our main interlocutors.

The Philippines intervened in that case, seeing how its outcome may affect its own claim over Sabah, an oil-rich region that, with Sarawak, make up for 60 percent of Malaysia’s petroleum production. While the ICJ rejected the Philippine intervention, it stated that it recognizes that there is such a Philippine claim.

I recalled this forum after the exchange of diplomatic notes in the last few weeks between the Philippines and Malaysia over Sabah. This has to do with submissions made by Malaysia to the UN on its claim for an extended continental shelf, which are anchored on baselines marked out along Sabah’s coasts, as well as on the Philippines’ Spratly Islands claim, which intersect at some points with Malaysia’s own.

History indeed remains such a powerful force in the trajectories of nations and peoples. It cannot be denied; it must be properly addressed. Yet, as can be expected, such a complex issue cannot be adequately covered by a discussion of only a couple of hours. In that forum I decided to limit my discussion to only three points, the first two being on the strongest arguments Malaysia may have to assert its sovereignty over Sabah, and the last one, on the Lahad Datu incident proper.

Even so, I hope that my remarks here (a slightly edited version of what was delivered), while being an abbreviated take on nearly a century and a half of historical contestations, somehow serve to illuminate important points on the continuing territorial contestation.

…..

We are especially honored to be sitting at the same table with very accomplished senior Malaysian academics, Professors Mohamad Abu Bakar and D.S. Ranjit Singh. That they have agreed to dialogue on this all-too important topic  with us more junior scholars on the Philippine side speak  volumes about their humility and magnanimity. For that we are grateful.

This is very much needed, as  a highly emotional topic such as this is bound to a lot of  misunderstanding. For starters there is widespread belief that the Philippine claim embraces the entirety of Sabah. It does not, but only about a third of what is now Sabah.

Given the limited time available and the broad range of topics that may fall within the ambit of the present discussion,  I will deal only  with a  focused resume of  important legal questions relevant to our present discussion, in the hope that these may serve as a springboard for a fruitful and enlightening discussion this morning.

Indeed what we have seen in Lahad Datu  is the powerful resurgence of historical memory at a time when the discourse of a modernizing or a modern state has seemed all too pervasive. In that sense, history may overshadow the legal aspect to the dispute. Nevertheless, we must discuss the legal side, for a fuller view of things.

First,  I will deal with what I consider to be the most salient of the international legal issues attendant to the territorial dispute between the Philippines and Malaysia over a portion of North Borneo.

The second, I will then discuss key points of the claims to historic title by the Philippines that is not often given the attention they deserve. 

Finally, I will then deal with the way Malaysian authorities have  tackled the Sultanate of Sulu’s so-called Royal Security Force.

My first point: What the Philippines must effectively address in its claims to historic title over Sabah is the claim  by Malaysia to the right to self-determination, which is a jus cogen norm subject of  erga omnes obligations.

In his separate opinion to the Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ in 2002, ad hoc judge Thomas Franck had this to say, in his rejection of the Philippine intervention:

Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self- determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.”


This is strong language, with the tenor of definitiveness. Of course, it should not be forgotten that this is the opinion of the Malaysian-nominated judge to the ICJ in this case. Yet, while it is not part of the majority opinion, in many ways it reflects contemporary thinking in international law on the weight of historical claims over the exercise of self-determination. The ICJ’s pronouncements in Barcelona Traction,  East Timor and Wall Opinion cases have indeed acknowledged the binding nature of this by now well-recognized principle of self-determination. 

The question for the Philippines, however, is whether the factual characterization by Judge Franck of the exercise by the people of North Borneo of this right  is borne by historical reality.

First, from the very beginning, the Philippines committed itself to welcome the creation of the new state of Malaysia subject to the final outcome of its claim over Sabah. This is clearly supported by the following:

It is important to note that these are not mere unilateral declarations but are tripartite and bilateral documents that are binding upon the signatories. In the case of the Joint Statement, they all agreed that the Philippines will continue to pursue it claim even after the inclusion of Sabah in the Malaysian Federation. In the case of the 1966 joint Communique, Malaysia without a doubt, by its consent to it, forfeited any advantage it might have acquired through the UN ascertainment of 1963.                                                                                            

This leads me to the next point under this section.

  1. The Report and Recommendations  of the Conference of Foreign Ministers of the Federation of Malaya, the Republic of Indonesia and the Republic of the Philippines to their respective Heads of Government, dated 1 June 963.  What is important in this document, especially Para. 12, states that both Malaysia and Indonesia recognized the Philippine position that it had a right to pursue its claim according to international law and the peaceful settlement of disputes and all three agreed  that the inclusion of North Borneo in the federation would not prejudice  either the claim or any right arising from it.
  2. The Manila Accord of 31 July 1963, signed by President Macapagal, President Sukarno and Prime Minister Tunku Abdul Rahman, adopted in toto the report of the Foreign Ministers earlier referred to.
  3. The Joint Statement of  5 August 1963 by the Three Heads of Government, especially its para. 8, which referred to the Manila Accord, and reiterated their joint view that they agreed to seek a just and expeditious solution to the dispute between the British government and the Philippines over Sabah through negotiations, conciliation, arbitration or judicial settlement, or other peaceful means of resolving the issue. In addition, they affirmed that they take cognizance of the Philippine claim to Sabah “after the establishment of the Federation of Malaysia as provided under para. 12 of the Manila Accord, that is, the inclusion of Sabah in the Federation of Malaysia does not prejudice either the claim or any right thereunder.”
  4. In 1966, when relations between them normalized, Malaysia and the Philippines, in a joint Communique of 3 June 1966, “agreed to abide by the Manila Accord of 31 July 1963 and with the Joint Statement accompanying it, for the peaceful settlement of the Philippine claim to Sabah.” they further agreed that to the need to sit together to clarify the claim and reach a satisfactory resolution to the issue.
  5. And then, following the proclamation of the creation of the Federation of Malaysia on 16 September 1963, Manila and Kuala Lumpur engaged in  a series of exchanges of Joint Communiques, aides memoirs, Notes Verbale or diplomatic notes, all expressing the sense that both parties have remained committed to the terms of the Manila Accord of 1962. These exchanges ran from 1964 to 1968. 

From the very beginning, the Philippines has demanded that any referendum in Sabah on the question of its inclusion in the Malaysian Federation be authentic and bona fide, and under circumstances that ensured  the free and enlightened expression of  the Sabahan’s will.

But the so-called Sabah referendum was anything but a representative referendum.  It’s subject matter was actually only the election of local officials. The question of whether the people of Sabah wished to remain with Malaysia or to join the Philippines was not at all asked in the ballots issued to voters.

Moreover, much to the embarrassment of UN officials, Malaysia announced the date of the creation of the federation even before the results of the  so-called referendum could be released, as if it had already been predetermined.

In the wake of the Lahad Datu incident, the Malaysian government made the claim that two-thirds of the people of Sabah agreed to be part of Malaysia in 1962.

Sabah opposition leaders like Jeffrey Kitingan  however dispute this, arguing that what actually took place was a referendum of less than four percent of the people. If at all, Kitingan’s statement confirms the Philippines’ position from the very beginning.

Moreover, he also argues that all the relevant parties, including the Sabahans, should find a peaceful solution to the dispute under the ambit of  the United Kingdom and the United Nations. 

In any case, today’s adamant refusal by Malaysian authorities to consider a joint submission with the Philippines on the Sabah question to an international tribunal is a complete turnaround from its previous position on the matter. 

They cannot however, deny documents to which Malaysia was a willing party and that are binding under international law.

Allow me now to discuss my second point. In the Sipadan and Ligitan case, the ICJ denied the Philippine bid to be allowed to intervene, saying it did not show any specific legal interest in the dispute. 

However, what proved important to the Philippines is the declaration by the ICJ that it recognizes the existence of the Philippine position on Sabah.

This was the very first time the Philippines was able to articulate its claim to Sabah before an international tribunal, although the Court ruled that its claim was not at issue in the proceedings. What exactly is this claim by the Philippines?

As we argued in the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)ours “is a territorial claim on a portion of Sabah which properly belongs to the Philippines on the basis of a sound title jure gentium and which Malaysia is improperly occupying on the basis of a faulty title which had been transferred to it by a prior faulty title holder.” Indeed, the Philippines is not claiming all of Sabah or contesting its political legitimacy. We are simply claiming a piece of territory in North Borneo on the basis of a clear chain of title.

At its heart is the claim that the1878 contract entered into between the Sultan of Sulu and the prospectors Dent and Overbeck is one of lease and not of transfer of sovereignty. 

This lease contract was later passed on by the prospectors to the British North Borneo Company (BNBC), which in turn,  sold its rights under the contract to the British Crown. As in international law, sovereignty can only be ceded to sovereign entities or to individuals acting for any sovereign entity Overbeck and Dent did not have the power to pass on to BNBC sovereignty over the properties of the Sultanate of Sulu over portions of North Borneo, they being neither sovereign entities nor individuals acting for any sovereign entity. 

In fact, in  1903, the BNBC would sign with the Sultanate of Sulu a confirmatory Deed to the original terms of the 1878 lease.

From 1878 to just before the1946 Cession, the British Crown has always recognized the 1878 contract as no more than a lease.  The British Foreign Minister, Lord Granville,  assuring the Spaniards that the BNBC is not acquiring dominion and sovereignty in North Borneo, stated thus:

The Crown assumes no dominion or sovereignty over the territories occupied by the company nor does it purport to grant to the Company any powers of government thereover; it merely confers upon the persons associated the status and incidents of a body corporate and recognize the grants of territory and the powers of government made and delegated by the Sultan in whom the sovereignty remains vested.

The British Foreign Minister would go on to say the BNBC was merely an administrator. To the same effect,  the Prime Minister, Mr. William Gladstone, in the debates in the House of Commons,  gave an important speech. 

Thus Malaysia acquired no more than a derivative title from the British crown, which could not be any better than what the BNBC acquired from Overbeck and Dent.

And Malaysia’s continuing payment of pajak to the heirs of the Sultan of Sulu, on the basis of the 1939 probate  of the will of Sultan Jamalul Kiram by North Borneo Chief Justice Macaskie, in the amount of 5, 300 dollars annually, further affirm the Philippine position.

The Chief Justice, in his decision dated18 December 1939, thus said:

     It is abundantly plain that the successors in Sovereignty of the Sultan of Sulu are the Government of the Philippine islands, but Mr. De Leon contends that the decision of the Philippine courts in the administration suit relating to the late Sultan’s estate precludes that government from asserting any claim to the cession monies. In my view, this is correct. The Philippine government allowed Sultan Jamalul Kiram to enjoy cession monies as a private person sine 1915; they have made no claim on his death and by a judgment  of a Philippine court recognized the right of the private heirs of the Sultan to receive the cession monies. (based on the Maxwell-Gibson translation of 1878)

Justice Macaskie here has two aspects of the question in mind. First, he recognizes that there are rights to sovereignty which now pertain to the Government of the Philippines and there are proprietary rights that accrue to the heirs of the Sultan of Sulu.

This distinction may provide an alternative that could be most beneficial to all concerned.  Of course, there is also the  option of the Philippine government waiving the sovereignty  question, but pursuing its right to reparations over the loss of territory in a process that, from its perspective, was inequitable, even legally anomalous. Given the limitations of this forum, I’m afraid these options will require further elaboration best reserved for another occasion.

My third point : on the current situation in Lahad Datu, the question of the arrested members of the RSF and Filipinos caught in the cross-fire in Sabah

Please allow me to take this opportunity to bring to your attention international legal obligations that Malaysia and the  Philippines need to observe in dealing with the Lahad Datu incident.

According to the Swiss arbitrator Max Huber in the Las Palmas case, one state’s  sovereignty over its territory comes with the concomitant obligations towards the rights of other States: 

Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian. 

In other words, the fact that one has sovereign claims over a piece of territory does not entitle it to wanton ill-treatment of foreigners found within that territory, even assuming for the sake of argument that these foreigners are alleged to have committed acts inimical to the interests of the state. Thus Malaysia has obligations under international law to accord the 200 or so followers of the Sultan of Sulu with the rights protections.

Thus,  I view with much trepidation the refusal by Malaysian authorities to allow Philippine consular officials to exercise their duty to provide consular protection to arrested members of the Royal Sultanate Security Force under the terms of Art. 36 of the Vienna Convention on Consular and Diplomatic Protection. 

In both the La Grand and Avena Cases, the ICJ has laid down the positive duty of states to accord consular privileges to sending states whose nationals have run into trouble in the jurisdiction of the receiving states.  The right of a state to claim rights for its nationals abroad is referred to as “diplomatic protection”. Here, the duty of the state is to ensure that states treat their nationals abroad in a manner that complies with human standards recognized under the International Covenant on Civil and Political rights, among others documents.

Thus, it is to the interest of both the Philippines and Malaysia that the rights of the Sultan of Sulu’s followers arrested in Sabah are assured and accorded rights guaranteed under international law.

Thank you.


Postscript:


The full legal claim by the Philippines over Sabah (North Borneo) has been declared by its agent, Professor Merlin M. Magallona, in its intervention in the Sipadan and Ligitan case. Click here for the transcript of the oral proceedings before the ICJ, where Professor Magallona details for the ICJ’s appreciation the Philippine claim,

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Is Vietnam now ready to do “a Philippines” against China?

By Romel Regalado Bagares*

There are unmistakable signs that Vietnam may have already reached the point of no return in its maritime dispute with China.  

One such sign is Vietnam’s recent nomination of four arbitrators – including that of Professor Robert C. Beckman, a noted Law of the Sea expert based at the National University of Singapore, under Annex VII of the UN Convention on the Law of the Sea.

That section of the multi-party treaty outlines the default  compulsory mode for arbitrating questions of interpretation and application of the UNCLOS or relevant treaties where the parties have not agreed beforehand on any mechanism to resolve such disputes.

Last month, on July 27, a  Vietnamese news outlet reported the names of three other nominees, all Vietnamese  UNCLOS experts:  Professor Nguyen Hong Thao of the Diplomatic Academy of Vietnam and a  member of United Nations International Law Commission, Dr. Nguyen Thi Lan Anh,  former Vice Chair of  the Vietnamese National Border Committee and an associate professor at the  Diplomatic Academy of Vietnam, and Dr. Nguyen Dang Thang, the Director of the Vietnamese National Border Committee and a member of the Permanent Court of Arbitration.

Last August 8, the think-tank Professor Beckman had founded, the NUS-Centre for International Law,  announced that the Embassy of Vietnam in Singapore earlier  formally presented  to him his nomination by the Ministry of Foreign Affairs of Vietnam as an Annex VII arbitrator.

“[T]his is the first time in history that Vietnam has nominated a foreign national to this important position,” said the CIL statement issued two days after the event, citing the Vietnamese ambassador to Singapore, Tao Thi Thanh Huong. “This proves not only the recognition of the knowledge and experience of the nominee but also his impartiality to and support of the peaceful resolution of disputes based on international law.”

In fact,  Vietnam had submitted its list of nominated arbitrators to the UN Secretary General much earlier, on May 15 this year. 

Under Annex VII rules, only one of its four nominees  may serve as an arbitrator in a  proceeding initiated by Vietnam.  

An arbitral tribunal created under Annex VII has five members. The state that instituted the proceedings is allowed to nominate one arbitrator  from its list of nominees. The respondent state, within 30 days of receiving notice of the proceeding, may also nominate its own arbitrator. The other three arbitrators are to be chosen from nationals of third states by agreement between the parties to the dispute, unless they otherwise agree. 

It is likely Vietnam will appoint Professor Beckman to such an arbitral tribunal, given his high standing as an expert. It also remains to be seen whether in such a new proceeding, China will deviate from the strategy it had taken in the Philippine arbitral case. 

As it had done before, it is expected to reject a new arbitral proceeding, and instead  insist on bilateral negotiations. 

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.

The Philippines’ 2013 arbitral case against China over the latter’s expansive Nine Dash Line-claim was also founded on Annex VII. 

The Philippines however only nominated an arbitrator after it had already filed a notice to China that it was hauling the latter to arbitral court. With China’s decision not to participate  in the arbitral proceeding, it was the ITLOS President who appointed the other members of the arbitral tribunal.

ITLOS in Singapore

Vietnam’s move to nominate its own arbitrators also came on the heels of a model agreement signed by Singapore and the International Tribunal on the Law of the Sea (ITLOS) last June 11 recognizing the city-state as an alternative seat for the tribunal.

State parties in the region may now litigate disputes under the UNCLOS in ITLOS proceedings conducted in Singapore, if they so choose.

It is decidedly  a much cheaper option for Vietnam than the tribunal’s official seat in Hamburg, Germany, or other tribunals in Europe. In the case of the Philippines, its arbitral case was litigated  in The Hague under the supervision of the ITLOS

China had refused to participate in the landmark Philippine arbitral case –  only the eighth such proceeding under Annex VII, which took effect in 1994.  The 2016 arbitral ruling handed down by the arbitral tribunal through the PCA in that case is yet the most comprehensive in scope since the ITLOS began hearing procedures under the  compulsory dispute settlement mechanism of ANNEX VII.

It established definitive rules on such areas as the legal status of historic rights in relation the maritime entitlements under the, artificial and natural islands, high tide features and low-tide elevations, responsibility for environmental damage, safety in marine navigation, and traditional fishing grounds as against the EEZ.

Indonesia, along with Vietnam, Malaysia, Japan, and Thailand, had each sent a diplomatic observer to the arbitral proceedings at The Hague. Except for Thailand, all of them have a running maritime dispute with China. Too,  Vietnam had as well filed a brief with the PCA supporting Manila’s case against China.

Seismic effect of a Vietnamese arbitral case

But in the last four years since the PCA handed down the ruling, the Chinese government has been banking on a game of smoke and mirrors, trying to project to the world that the arbitral ruling and the arbitral court that handed it down were anything but legitimate. 

It has combined this with a virtual military occupation of maritime features that, according to the PCA’s 2016 ruling, are unable to support human habitation or economic life and thus, fall within the Philippines’ Exclusive Economic Zone.

For this  reason, even without Chinese participation, a  Vietnamese arbitral case invoking key holdings of the PCA on the Philippine arbitral case will have a seismic effect sure to be felt not just in the ASEAN region but well beyond.

Trang Pham, a lecturer at the Vietnam National University,  was quoted in an August 22 report by the South China Morning Post as saying that all that needs to be done is a “political decision” by Vietnamese leaders to take its maritime dispute with China to arbitration.

Pham noted that the Vietnamese have already completed all necessary steps that are a prelude  to arbitration, from publicly airing its views to submitting a note verbale to the UN Secretary General on the question.

Indeed, since December last year, Vietnam –  along with the two other biggest economies in ASEAN, namely Malaysia and Indonesia – have fired a flurry of diplomatic missives to the UN protesting Chinese incursions into their own maritime territories. 

They either explicitly cited the  UNCLOS ruling in the Philippine arbitral case that invalidated the Chinese Nine Dash Line-claim, or used its key holdings.

The Vietnamese stance today is a far cry from the stance it had taken in 2011, when it signed an agreement with China to resort to negotiations and friendly consultations as means to resolve maritime disputes.

The Chinese constructivist gambit fails

These diplomatic maneuvers, all from what international law calls “specially-affected states”  also indicate that China’s “constructivist” gambit against established maritime rules has utterly failed. 

A Chinese scholar interviewed for the same South China Morning Post report appears to have acknowledged this. “What is certain is that among Asean countries, those that have territorial sovereignty and maritime delimitation disputes with China are constantly invoking arbitration awards to deny China’s claims to the South China Sea,” said Dr. Ding Duo of the National Institute for South China Sea Studies in Hainan.

He was quick to warn that claimant states in the ASEAN should not allow themselves to be used as pawns in the renewed struggle for regional influence between China and the United States. 

“There’s clearly a change in attitude, due in part I think to China being increasingly viewed as a threat to the rules-based order set out in Unclos”, the South China Morning Post report  also quoted Professor Beckman as saying, “[and] because it is asserting rights in particular to the ocean resources that belong to its neighbours.” 

However it mentioned neither Professor Beckman’s appointment as an arbitrator, nor those of the three other Vietnamese experts. The international lawyer  and senior American academic – whom the Hongkong-based newspaper calls “the region’s most eminent ocean law scholar” – is professor emeritus and head of the NUS Faculty of Law’s Ocean Law and Policy Program. 

Professor Beckman will have his hands full with a Vietnamese arbitral proceeding against China, as is not without its own challenges.  

This has to do, according to one expert, with the particulars of the dispute between Vietnam and China, which may not be on all fours with the one litigated by the Philippines. For starters, there are potential overlaps of claims to a continental shelf and an EEZ between China and Vietnam, which may serve to preclude an Annex VII arbitration. There too, are certain Vietnamese-drawn baselines that – it is claimed – do not conform with UNCLOS standards. 

Vietnam may however choose to tailor the question only  to the Vanguard Bank standoff, where China’s claim is founded on its Nine Dash Line-claim. In such a situation, the primary holding in the Philippine arbitral case reverberates: such a claim, being one for historic rights, is incompatible with a coastal state’s maritime entitlements under the UNCLOS. 

In fact,  the Vietnam Society of International Law (VSIL) had written the Chinese Society of International Law (CSIL) in October last year,  invoking the Philippine precedent for Vietnam’s oil- and gas-drilling operations in the Bank, according to a March 18 article this year  by Dr. Ding, the Chinese scholar, also for the South China Morning Post. In the same letter, the Vietnamese international law scholars intimated Hanoi’s intention to follow Manila’s tack by bringing the question to an arbitral proceeding.

Whatever the eventual shape the Vietnamese arbitral claim may take, Vietnam’s nomination of Annex VII arbitrators for its side of the case takes it a step closer to arbitration against China. 

*Romel Regalado Bagares, a graduate of the University of the Philippines College of Law and the Vrije Universiteit Amsterdam, teaches public international law at the Lyceum of the Philippines University College of Law. He is also a trustee of the Philippine Society of International Law.

This article first appeared on Verafiles on August 24, 2020.

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Getting a 5.0 in a class on public international law back in the day

DeanMI recently made a backup copy of a recording I made two years ago of a brief conversation with Dean Merlin M. Magallona on how he developed his approach to teaching the Philippine practice of international law.

He said in 1995, he first realized something was wrong with how international law is taught in the Philippines when he was gathering materials for his first book dedicated solely to teaching international law.


He said international law as practiced in the Philippines is not international law in the objective international plane (vague echoes of Kelsenian language there, although his method is hardly one!).

Then he recalled being a student in the public international law class taught by Dean Vicente G. Sinco, back in the early 50s.

Back then, Dean Magallona said, students went to class in elaborate Barong Tagalog or a suit, and woe to you if you dressed less than what the dress code stipulated.

Dean Sinco would open the class by asking “do you know where I just came from?”

(Aside from being a full professor of law, also served as a presidential adviser. He would also sit as a member of the Monetary Board. He taught at Malcolm Hall from 1925-1955, and became UP President in 1958).

Dean Sinco would then open the recitation for the day by shuffling a set of cards, each of which bore a question pertinent to the assigned readings for the day. Students picked a card from the set, and they were to answer the question the deck dealt them.

Dean Sinco would bellow to the hapless student unable to answer the question: “Do you know my name? That is the grade you will get from me today!”


xxxx


Dean Magallona’s short book referred to here was later expanded to become The Fundamentals of International Law, published in 2005. These books are arranged in catechetical style (Q and A), and I hazard that today, these remain two of the best printed pedagogical tools there are on international law in the Philippines.


DeanSOne of Dean Sinco’s innovations as UP president was his introduction of the ‘end-to-end approach’, in which students were taught a few subjects at a time, devoting longer periods each day until the whole course was covered and final examinations were given, before another set of subjects were taken. (I encountered a version of this in grad school in Amsterdam in 2006-2007).

This did not sit well with his UP constituents.

But Dean Sinco’s lasting legacy bequeathed to generations of UP students was the General Education Program, which he had initiated. The GE Program was a cornerstone of UP education for decades, on the vision of a sound liberal arts foundation for all disciplines.

He was a proud Sillimanian (BA, 1917; LLB, 1921; LLM, 1925;UP).

He was also a member of the Philippine delegation to the drafting of the UN Charter, and served as a rapporteur of Commission No. 1 of that body, which was assigned to draft the general provisions of the charter of the UN.

I’d love to get my hands on his papers, if they were collected at all, on this key period of his academic and legal career!

PS: I did not have the pleasure (or terror!) of being a student in Dean Magallona’s class in public international law. Instead, I had him as my legal history professor, under which I had my very first recitation in law school!

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Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic

Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic, advanced unedited version – CCPR/C/128/2, April 24, 2020
1. A number of States parties to the International Covenant on Civil and Political Rights have notified in recent weeks the Secretary General of the UN pursuant to article 4 of the Covenant about emergency measures they have taken or are planning to take with a view to curb the spread of the Coronavirus pandemic (COVID-19), in derogation from their Covenant obligations. It has been brought, however, to the attention of the Committee that several other States parties have resorted to emergency measures in response to COVID-19 in a manner seriously affecting the implementation of their obligations under the Covenant, without formally submitting a notification of derogation from the Covenant. The Committee calls on all State parties which have taken emergency measures in connection with the COVID-19 pandemic that derogate from Covenant obligations, to comply without delay with their duty to provide immediate notification to the Secretary General of the UN, if they have not done so yet.
2. The Committee is of the view that in the face of the COVID-19 pandemic, States parties must take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction, and it recognizes that such measures may result in certain circumstances in restrictions on the enjoyment of individual rights guaranteed by the Covenant. Furthermore, the Committee acknowledges that States parties confronting the threat of widespread contagion may resort, on a temporary basis, to exceptional emergency powers and invoke their right of derogation from the Covenant under article 4, provided this is required to protect the life of the nation. Still, the Committee wishes to remind States parties of the requirements and conditions laid down in article 4 of the Covenant and explained in the Committee’s General Comments, most notably in General Comment 29 on States of Emergency (2001), which provides guidance on the following aspects of derogations: (1) official proclamation of a state of emergency; (2) formal notification to the Secretary General of the UN; (3) strict necessity and proportionality of any derogating measure taken; (4) conformity of measures taken with other international obligations; (5) non-discrimination; and (6) the prohibition on derogating from certain non-derogable rights. In particular, States parties must observe the following requirements and conditions when exercising emergency powers in connection with the COVID-19 pandemic:
(a) Where measures derogating from the obligations of States parties under the Covenant are taken, the provisions derogated from and the reasons for the derogation must be communicated immediately to the other States parties through the Secretary-General of the UN. Notifications by States parties need to include full information about the derogating measures taken and a clear explanation of the reasons for taking them, with complete documentation of any laws adopted. Additional notifications are required if the State party subsequently takes further measures under article 4, for instance by extending the duration of a state of emergency. The requirement of immediate notification applies equally to the termination of the derogation. The Committee considers the implementation of the obligation of immediate notification essential for the discharge of its functions, as well for the monitoring of the situation by other States parties and other stakeholders.
(b) Derogating measures can deviate from the obligations set out by the Covenant only to the extent strictly required by the exigencies of the public health situation. Their predominant objective must be the restoration of a state of normalcy, where full respect for the Covenant can again be secured. Derogations must be limited, as much as possible, in respect of their duration, geographical coverage and material scope, and all measures taken, including sanctions imposed in connection with them, must be proportional in nature. Where possible, and with a view of the need to protect the life and health of others, States parties should replace COVID-19-related measures that prohibit activities relevant to the enjoyment of rights under the Covenant with less restrictive measures that allow such activities to take place, while subjecting them to necessary public health requirements such as physical distancing.
(c) States parties should not derogate from Covenant rights or rely on a derogation made when they can attain their public health or other public policy objectives through invoking the possibility to restrict certain rights, such as article 12 (freedom of movement), article 19 (freedom of expression) or article 21(the right to peaceful assembly), in conformity with the provisions for such restrictions set out in the Covenant, or through invoking the possibility of introducing reasonable limitations on certain rights, such as article 9 (right to personal liberty) and article 17 (right to privacy), in accordance with their provisions.
(d) States parties cannot resort to emergency powers or implement derogating measures in a manner that is discriminatory, or which violates other obligations they have undertaken under international law, including under other international human rights treaties from which no derogation is allowed. Nor can States parties deviate from the non-derogable provisions of the Covenant – i.e., article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation), article 15 (the principle of legality in the field of criminal law), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion) – or from other rights which are essential for upholding the non-derogable rights found in the aforementioned provisions and for ensuring respect for the rule of law and the principle of legality even in times of public emergency, including the right of access to court, due process guarantees and the right of victims to obtain an effective remedy.
(e) In addition, States parties cannot derogate from their duty to treat all persons, including persons deprived of their liberty, with humanity and respect for their human dignity, and they must pay special attention to the adequacy of health conditions and health services in places of incarceration, as well as to the rights of individuals in situations of confinement, and to the aggravated threat of domestic violence arising in such situations. Nor can States parties tolerate, even in situations of emergency, the advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence, and they must take steps to ensure that public discourse in connection with the COVID-19 pandemic does not constitute advocacy and incitement against specific marginalized or vulnerable groups, including minorities and foreign nationals.
(f) Freedom of expression, access to information and a civic space where a public debate can be held constitute important safeguards for ensuring that States parties resorting to emergency powers in connection with the COVID-19 pandemic comply with their obligations under the Covenant.

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A common good constitutionalism?

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).

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Suing China before the ICJ over COVID-19

Peter Tzeng of Foley & Hoag (the law firm behind our victory against China in the SCS arbitration) writes this excellent thought piece on suing China before the International Court of Justice.

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.

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China, international law, and Covid-19

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.

Evidence suppressed?

 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.”

What’s interesting is that the Chinese government is on a diplomatic offensive, sending medical teams and tons and tons of crucial medical supplies to Italy, Serbia, Liberia, and the Philippines.

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?

She explained:

“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.

This first appeared as a two-part special report for abs-cbn online on March 24, 2020, and March 25, 2020, respectively.  Click here for the first part, and here, for the second part.

A shorter version also appeared in the Philippine Daily Inquirer as an opinion piece on March 22, 2020.

 

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Commentary: Indonesia’s New Year’s message to China over Natunas dispute: A game changer?

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.

 

 

 

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Filed under Bajo De Masinloc, China, International Law, ITLOS, Malaysia, Nine-Dash Line Claim, PCA, Scarborough Shoal, South China Sea, Uncategorized, UNCLOS

A (post)modern-day Vandal contra the Church

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.

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