Category Archives: Uncategorized

Green on Gardner on Law and Morality

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

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

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

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

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PSIL Call for Papers

The Philippine Society of International Law has just posted a Call for Papers for its first National Conference this September. The PSIL National Conference is a prelude to the 7th Biennial Conference of the Asian Society of International Law, which it will host in Manila next year.

The PSIL has a distinguished lineage, having been founded in 1961 by the late Justice Florentino Feliciano.

This is the first time in so many years that a conference dedicated to international law in this scale will be mounted hereabouts.

Check out the PSIL Call for Papers post here.

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Tentative thoughts on International Humanitarian Law, the Marawi Siege and Lagman v. Medialdea

1. IHL prohibits acts of terrorism on the part of parties to an armed conflict.

2. Parties to an armed conflict are those of sufficient organization and structure as to be able to recognize and observe the laws and rules of war.

3. This goes for both international armed conflicts, where  of course, the parties are states so the question of organization is evidently met  (Fourth Geneva Convention) and non-international armed conflicts ( Two Additional Protocols to the Geneva Conventions), where usually, the parties are non-state actors ranged against the state, or non-state actors fighting one another. The Geneva Conventions are part of Philippine law by way of the Constitution’s treaty clause (as we are parties to them) and by way of the incorporation clause, as they also form part of customary international law.

4. In IHL, terrorism is not defined but acts designed to spread terror among the civilian populace in an armed conflict are tagged as “acts of terror” that are illegal and criminal in nature. In other words, there is a distinction made in IHL between status and act. A group may have the status of a party to an armed conflict, whether non-international or international and yet may be prosecuted for war crimes for engaging in  acts of terror.

5. Generally, IHL is not applied to groups that are considered no more than terrorist in nature.  IHL does not apply to the latter, as in the first place, it rejects the rules and laws of war.To date, the ICRC does not consider ISIS/ISL as a rebel group or as a state  fighting a transnational war (despite its claim that it is waging a war to establish a Caliphate in Iraq and Syria). A briefing paper of  the ICRC puts it thus:

With respect to the phenomenon of armed groups that are perceived as having a global reach, such as al-Qaeda or the Islamic State group, the ICRC does not share the view that an armed conflict of global dimensions is, or has been, taking place. This would require, in the first place, the existence of a ‘unitary’ non-State party opposing one or more States. Based on available facts, there are not sufficient elements to consider the al-Qaeda ‘core’ and its associated groups in other parts of the world as one and the same party within the meaning of IHL. The same reasoning also applies, for the time being, to the Islamic State group and affiliated groups.

Indeed, the Wall Advisory Opinion of the International Court of Justice denies recognition to groups organizing a state that wantonly and openly violate IHL and IHRL.

6. In practice, terrorist groups are often prosecuted for common crimes under domestic law in various jurisdictions.

7. In fact, no other state in the world — not even any Islamic one –has recognized ISIS/ISL as a legitimate political group engaged in a non-international armed conflict or a war for national liberation. Yet admittedly, there is vigorous debate on the continuing relevance of the general rule just mentioned, given the many acts tantamount to war crimes being committed by ISIS and its affiliated groups around the world. It remains to be seen whether the status/act distinction can be extended such that terror groups may be prosecuted for war crimes under IHL but remain classified as terror groups. What ‘s at stake is nothing less than the viability of civilizational norms. Taking off from the ICRC paper, a relevant question is whether the ISIS affiliates in the Philippines such as the Abu Sayaff and the Maute Group have at least achieved such an organized status as being able to meet the threshold for waging a non-international armed conflict. It is worth noting that previous to Marawi, the government has treated these two groups as groups merely engaged in criminality.

8. However, in Lagman v. Medialdea, the Philippine Supreme Court elevated the ISIS-allied Maute group to a political group by agreeing with the Executive Department’s contention that they are a group that has launched a rebellion to establish an Islamic state in Marawi City. The question of course is whether this also means characterizing the rebellion as a non-international armed conflict. Associate Justice Leonen also pointed to this apparent incongruence in his dissent to the majority opinion with these two trenchant paragraphs:

Elevating the acts of a lawless criminal group which uses terrorism as tactic to the constitutional concept of rebellion acknowledges them as a political group. Rebellion is a political crime. We have acknowledged that if rebels are able to capture government, their rebellion, no matter how brutal, will be justified. Also, by acknowledging them as rebels, we elevate their inhuman barbarism as an “armed conflict of a non-international character” protected by International Humanitarian Law. We will be known worldwide as the only country that acknowledges them, not as criminals, but as rebels entitled to protection under international law.

9.  The next question is whether characterizing the siege of Marawi as an NIAC could mean the reverse; that is, also granting the Mautes legitimacy as a group with political aims.

(This is a slightly different version of a post I made on my Facebook account. Photo credit, Abante Tonite).

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Alternative Facts of Dialectical Thought (Brandys Redux, No. 2)

0327-06-brandys-kazimierz-1982I first posted about my re-reading of the journals of the late Polish dissident Kazimierz Brandys here.

In this day and age of “alternative facts”, it’s interesting to read an entry in his journals (p. 96-97) about what passed for such in his own time. In 1948, as a young Socialist, he and other Polish writer, the poet Konstanty Galczynski, were invited to Russia to attend a commemoration of the October Revolution.

Arriving in the nick of time to the Bolshoi Theater where the ceremonies were being held, he and his compatriot were shown to their seats as the flashbulbs of cameras burst one after the other; he could very well remember that there were four rows of seats up on the stage, with 12 people on them. Stalin was absent, but for his huge portrait in the backdrop. Molotov was presiding on the podium. Brandys recognized a few Politburo men on the first row — Mikoyan, Boroshilov. On the second row, he could not miss Marshal Budeny’s distinctive black moustache. The third and fourth rows were occupied by less familiar faces, “people wearing dark suits and uniforms.”

He writes on:

I saw it all quite clearly with Molotov standing  at the podium, lit by flashbulbs. He spoke for over an hour, stuttering each time he said Stalin’s name: “St-St-Stalin.” During the entire speech, the stage, the red table, and the four rows of the presidium were before my eyes…after the meeting, we were taken back to our hotel. We ate dinner; then Galcznyski and I fell asleep on the wide double bed. I was up first in the morning, awakened by a rustling sound at the door. Still Sleepy, I jumped out of bed and noticed the edge of a paper that had been slipped under the door. It was a copy of Pravda, redolent of fresh ink.

Most of the front page was taken up by a photo showing the opening of the commemorative meeting: Molotov at the podium, the presidium table with Malenkov in the middle….I scrutinized the photograph. There were only two rows of chairs behind the table; the third and the fourth had vanished, replaced by a uniformly dark background. I was unable to grasp what the photograph was presenting. The truth? A fiction? both? Or was I seeing things?

I finally woke up Galcynzski and handed him the paper. Neither of us knew what to think.

When the two of them returned to Poland, they went to see the poet Adam Wazyk, to seek his counsel. Wazyk had spent the war in Russia; surely he knew more about the Russian mindset than both of the. And so, they handed to them the offending copy of Pravda as the poet sat in the editorial offices of the newspaper Kuznica (The Forge).

The poet’s response:

He looked at me with all the dignity of a Siamese cat and asked me just what I wanted to know and what I did find so surprising. I told him that there had been a third and fourth row, and so why weren’t they in the picture?

“That’s simple,” said Wazyk. “The people in the third and fourth rows still don’t deserve to be seen in an edition of several million copies.”

All right then, I persisted, but that means that the photograph isn’t true.

“Politically it is true,” Wazyk cut me short dryly.

That ended our conversation.

One of my first lessons in dialectical thinking.

In case you forgot, Pravda is the Russian word for truth.

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Kazimierz Brandys Redux, No. 1

0327-06-brandys-kazimierz-1982I’ve taken recently to re-reading the journals of the late Polish dissident writer Kazimierz Brandys (A Warsaw Diary, 1978-1981). 

An entry from October 1978, p. 11-12:

The contemporary world does not belong to the Age of Reason; it is convulsed by a desire for faith. As a layman living outside the church, my epoch ages me. I feel an anachronism in it, sometimes alien, superfluous. Especially since I usually felt distaste for the type of person and the kind of life that express themselves through religion. I was a student when I halted in front of the steps of a rather old temple, asking myself, Should I turn back or enter? I entered. For me socialism was not a confession of dogmatic faith; I went in because it was battling against a barbaric church that was hostile to me — fascism. Socialism’s nineteenth-century past had earned my respect, attracted me to its legends, the lives of it heroes, its ethical tension. And also by its modest liturgy, it’s simple ways. A table, a chair, a speaker, a discussion. And so, I thought I professed no dogmas. Already I had a gospel. It is without irony that I think of this today. And I have no intention of reducing the significance of socialism in my life. And not only in my life. In history, culture. If i had to name the most important phenomena in our era, I would say the Roma Catholic Church, the Reformation, and socialism. I would further add that these constitute the historical trinity that delineates my understanding of Christianity.

Thus, when saying”church”, I am using the word in a broader sense. For me, it includes ideological orders and organized state religions. Today, the universal Catholic Church is carrying out its mission in a world terrorized by new inquisitions and crusades. The churches of anarchism and nationalism are killing people. The churches of the totalitarian states are killing life itself. Both the former and the latter use torture. And both have their believers and unbelievers. Society seems to be conscious of the religious character of contemporary life [emphasis supplied].

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Human beings are, in the most fundamental of senses, religious. We are homo adorans. We exhibit, possess, are oriented and answer to, ultimate commitments.

*inset photo by Czeslaw Czplinski

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Aquinas on Tyrants and Tyrannicide

periander_vat2Aquinas’ De regno ad regem Cypiri (Address to the King of Cyprus, circa 13th C.) : interesting to read this short work written by Thomas Aquinas, especially the section on tyrants and tyrannicide, which I find to be a fertile source for contemporary political thought and discussion. A special note to make is that for Aquinas, a monarchy is the best political arrangement, hence the discussion is centered on the king.

Aquinas is reluctant to endorse private ventures to kill a tyrant; at the most, he appears to allow an uprising led by public authority as a last resort (I suppose, to give it a cloak of legality). Calvin follows this line, as do the Dutch Calvinists (for example, getting William of Orange to lead against Spanish tyranny), but I am not sure if Calvin et al acknowledge Aquinas as their source for their position.

Too, one thinks of the failed attempt to assassinate Hitler that was joined by the Lutheran theologian Diectrich Bonhoeffer, which seems to meet Aquinas’ requirement, as it was hatched by a small group that involved military officers and a couple of civil servants, who thus might qualify as public authorities. Yet Aquinas gives sufficient caution against such an adventurism, citing Roman examples when the ouster of a tyrant led to worse tyrannies. (Think of Pol Pot too!)

He also appears to provide a basis for later social contract theories here: ” If to provide itself with a king belongs to the right of a given multitude, it is not unjust that the king be deposed or have his power restricted by that same multitude if, becoming a tyrant, he abuses the royal power. It must not be thought that such a multitude is acting unfaithfully in deposing the tyrant, even though it had previously subjected itself to him in perpetuity, because he himself has deserved that the covenant with his subjects should not be kept, since, in ruling the multitude, he did not act faithfully as the office of a king demands.”

As earlier stated, Calvin and the Dutch Calvinists appear to echo this Thomist idea of revolt led by public authority; The English Puritans also argue that the governed have the right to revolt against unjust leaders. The American revolutionaries who rose up against the British re-state the same idea, by way of the English social contractarians, notably John Locke.

Ideas have legs, indeed? (Also serves to show Ecclessiastes is right — there is nothing new under the sun. Human nature, being what it is, often falls victim to the same weaknesses and bad habits). Hence the relevance of the battle cry — ad fontes!

Finally, Aquinas allows that tyrants may have been allowed by God to rise to power as punishment for the sins of the people. Now we Filipinos should start asking ourselves whether the present darkness is a punishment or a reward.

 

(photo of the Tyrant Periander of Corinth’s  source)

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Itu Aba: An Inside Track

itu_aba_ge1I guess it’s inevitable that the issue of Itu Aba would surface yet again in the wake of the Philippines’ resounding victory in the South China Sea Arbitration. As I noted in that earlier post detailing what we won before the Arbitral Court, the island — occupied by Taiwan — was a sore point between Justice  Francis Jardeleza (and his successor at the Office of the Solicitor General, Prof. Florin Hilbay), and Justice Antonio Carpio. The latter (with Chief Justice Sereno)  even went as far as opposing the former’s appointment to the Supreme Court because of  Jardeleza’s stance when he was Solicitor General. For background, click here and here.

A few days ago, Rappler came out with a piece recalling the Jardeleza-Hilbay tack on their alleged Itu Aba “miscalculation.”

Hilbay, now back at his old professor’s perch at the UP College of Law (funny, Jardeleza, Carpio and Sereno all served as professors at the College at some point in their legal careers), wrote a retort to Rappler’s rap. Rappler duly reported on his retort here.

This morning, I received a text from Prof. Hilbay expressing his reservations about the treatment his written statement had received in the Rappler news item. I  obtained a copy of his statement and am posting it below, for your own benefit and appreciation:

(A PDF file of the statement and the Memorandum mentioned in it may be downloaded here).

 

21 July 2016 UP College of Law

Response to Ms. Hofileña and Ms. Vitug
By: Prof. Florin T. Hilbay, former Solicitor General (Philippines v. China)

I respond to Ms. Hofileña’s and Ms. Vitug’s Rappler piece accusing me (and Justice Francis Jardeleza) of “miscalculation.”

First. I do not suppose the writers consider themselves experts in the law of the sea, much less official participants with personal knowledge of the West Philippine Sea litigation. I am therefore amused at the accusatorial tone they have taken on previously undisclosed legal strategy which, in fact, resulted in an overwhelming victory. Whether they are adopting the opinion of any person officially or unofficially connected with the case is also not stated. I am therefore left to respond to conclusions based on gossip, even as they were written by people I consider respectable journalists.

Second. In the coming months and years, the nation will have an opportunity to look under the hood of this magnificent legal accomplishment. Thankfully, given the positive legal result, the challenge will be about proper documentation and accurate narration of how this result came about, not about who should be blamed for what. The room is big enough and the pages of history books (or even Facebook) sufficiently spacious to toast the contributions of women and men privileged enough to have had a direct or indirect connection with the case. The bucket can accommodate decent human beings, and there’s no need to reduce oneself into a crab.

Third. Given the magnitude of this case and the multi-layered controversies surrounding it, I consciously adopted a policy of keeping documents and having multiple witnesses. This should eliminate erroneous factual claims and reduce subjective elements in the narration of the history of this case, which I intend to write. I saw myself simultaneously as a participant and an observer. As the former, my goals were to achieve an efficient win, reduce the impact of potential losses, and protect the President. As the latter, I was an excited case biographer.

Fourth. I saw the Itu Aba issue as belonging to the baskets where there was a need to reduce the impact of a potential loss and protect the President. By now, people should be aware that the Itu Aba issue is one where the entire team’s level of confidence was not at its highest. This explains why that feature was not included in our “complaint” in the first place. My discomfort with the treatment of Itu Aba figured prominently in a 2014 Memorandum I sent to Executive Secretary Paquito Ochoa, Jr. and Chief Presidential Legal Counsel (now Justice) Alfredo Benjamin Caguioa. This should be remarkably self- explanatory, and an interesting read.

I invite Ms. Hofileña and Ms. Vitug to reveal any other 2014 “official communication” from me to Malacanan.

Fifth. Ms. Hofileña and Ms. Vitug have a wildly mixed-up sequencing of events, which is to be expected from those who do not have official documents or had no direct and personal knowledge of events. Let me take the cudgels for them on one critical decision- point.

In the hearing on the merits last November 2015, the Tribunal made the Philippines grapple with a hypothetical: what happens if a feature (Itu Aba) were declared an island under UNCLOS (which therefore generates an Exclusive Economic Zone of 200 nautical miles from its coastline)? The original, proposed answer was that the Tribunal would retain jurisdiction to control, by some means, the conduct of the parties “pending agreement on delimitation or joint development arrangements.” I thought this was both novel and strange. This was the first time this theory was broached, and the proposal to softly offer “joint development arrangements” if we lose on the Itu Aba issue was problematic.

Witnesses to the agent’s discussion with foreign counsel, assuming they’re not deliberately forgetful, will remember two important points I repeatedly emphasized—

1) Commit to the wave. I did a short lecture on how surfers are able to catch big waves. Itu Aba is a wave we absolutely needed to catch, and we should not signal to the Tribunal that we think we might lose. We needed to focus our firepower on winning that issue instead of sheepishly offering “joint development arrangements” for when we lose. We should not, therefore, telegraph our punches.

2) Avoid impression of selling out. The Philippines, in this litigation, should not be seen as offering “joint development arrangements” as a second option or a compromise. For myself, I was particularly worried about being seen as inserting a very specific economic incentive as trade-off for losing the Itu Aba question. I told everyone “I will not be the Solicitor General who sold this case to China.”

Those who were in that meeting were former Secretary of Foreign Affairs Albert Del Rosario, Justice Francis Jardeleza, Justice Antonio Carpio, Ambassador Jaime Ledda, Deputy Executive Secretary Menardo Guevarra, and the entire contingent of Foley & Hoag.

In the aftermath of that meeting, foreign counsel strengthened (even more) the arguments on Itu Aba, dropped “joint development,” and recast the Philippines’ post-loss scenario to not make it appear we were not confident about winning Itu Aba.

At the conclusion of the hearings, Paul Reichler and Bernard Oxman (who delivered the wonderfully powerful speech for that hypothetical) thanked and congratulated me for my intervention. On my flight back home to Manila, I emailed Prof. Oxman: “I am serious when I tell you that your speech on the third day will probably be remembered as one of the most important speeches on the South China Sea disputes, and I’ll surely remind everyone of that fact.”

I think we won the Itu Aba issue because everyone from the Philippine side and the foreign counsel’s side was professional enough to realize that our occasional disagreements in this case could lead, rather thankfully, to compromises over our strongly held opinions. Fortunately, the brew was sufficient to convince the Tribunal that our arguments on the various submissions were correct.

Moving forward, I think the wise attitude here is to celebrate the victory, not malign anybody’s contribution. Justice Jardeleza, always fond of quoting JFK, would usually remind me that victory has a thousand fathers, but defeat is an orphan.

I couldn’t care less if this victory had a million parents.

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Filed under International Law, ITLOS, Nine-Dash Line Claim, PCA, Philippines, South China Sea, Uncategorized, UNCLOS