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International Law and its Postcolonial Discontents and Possibilities: Lessons from Magallona v. Ermita

 

ImageReactor’s comments  to the 10th MetroBank Professorial Chair Lecture, “Internationalization of Philippine Territory: The Question of Boundaries,”  by Dean Merlin M. Magallona, Chair, Philippine Judicial Academy International and Human Rights Law Department,  Nov, 13, 2013,  Malcolm Hall, UP College of Law, under the auspices of the  PHILJA and the Supreme Court of the Philippines (not for publication or citation without permission from the author)

By Atty. Romel Regalado Bagares

I begin my discussion of Dean Magallona’s lecture with a disclosure: I had the misfortune of having my very first recitation in my very first day in my very first class in my very first year in law school under him. It was a class in legal history and he was then just beginning to discuss with us his students the assigned readings for the day on Philippine customary law. As I heard him call my name for an explanation on the term “indigenous”, I stood from my front row seat with a start, and much to my own shock, proceeded to pace up and down the middle of the room as I explained to him what I understood by the term. The good Dean, face contorted by what could only be mock horror, blurted out at me: “Mr. Bagares – what are you doing? Are you trying to tell me that you can actually think?”

So friends, you will have to forgive me if what I will say today is colored in some way by my first recitation in law school.  I can only hope that at the end of this discussion, you will at least be convinced that I can actually think.

A second disclosure is that other than being a former student of the good Dean, I was also Petitioners’ co-counsel in the case of Magallona v. Executive Secretary,  which is the principal subject of his lecture. So please take my presentation with this further grain of salt.

And so, on to my comments to his lecture:

At the heart of Dean Magallona’s lecture is Magallona v. Ermita is now a judicial fait accompli; with this decision of the Supreme Court, ironically immortalized in the name of the very person who had been most assiduous in opposing it, the internationalization of Philippine territory – by which he meant other states acquiring some form of territorial rights in our own backyard – is complete.

The judicial confirmation that we have now been transformed into an archipelagic state in the contemplation of the UN Convention on the Law of the Sea(UNCLOS) could only have disastrous results to national sovereignty as understood in the Philippine Constitution.  With that, the colonial vestige that is the Treaty of Paris regime (which I am using as a shorthand), and under which the Philippines had previously staked its territorial rights as a state, is consigned to irrelevance.

It may well be one of life’s supreme ironies that Dean Magallona, a card-carrying nationalist international legal scholar, is also a staunch supporter of what we as a country has previously considered as our national territory’s international treaty limits under the over a century-old Treaty of Paris. As an international document, the Treaty of Paris carries with it all the hurts and pains of one country whose struggle to carve its own place in the community of nations was hijacked by colonizers.  But if I understood his view of international law correctly, it is precisely that history is what we make of what other people make of us, to borrow a phrase from one existentialist philosopher. One sees this most clearly in a year 2000 article he wrote for the venerable Philippine Law Journal, where he dealt with the history and morality of the (classical) international law of conquest and colonization as embodied in the Treaty of Paris.

Indeed, the Treaty of Paris carries with the many paradoxes of our existence as a postcolonial state.  As a text it invokes high emotions: the future of a country praised by the Indonesian novelist Pramoedya AnantaToer in his famous Buru Quartet for inaugurating nationalist impulses in our own corner of colonial Asia sold just like that for 20 million US dollars.  Yet for about 400 years – if we were to consider the continuities it presents between the Spanish to the American regime – it marked out what for us were the outer reaches of national territory unlike any other,  and its precise metes and bounds had been transformed into constitutional principle from American Commonwealth days, to the Martial Law era, and on to the Post-Marcos 1987 Constitution.

The TOP marks out a rectangular territorial sea fully encompassing the entirety of the Philippine archipelago; at some points, the territorial sea exceeds 12 nautical miles in breadth.  Perhaps, it bears noting that although the Philippines is not the only state which claims a territorial sea of more than 12 nautical miles, it is the only mid-ocean archipelago whose territorial claims had been specifically defined and delimited in latitude and longitude and embodied in international treaties and drawn in whole maps and charts.  In fact, as one author has observed, “the area of asserted jurisdiction is, in some places, 285 nautical miles from the nearest lands, thereby making it the most extravagant seaward claims.”

The Romantic Post-Colonial Argument

And so, to begin with, on the level of historical discourse, there’s not a lot going for the Treaty of Paris. As has been already noted, one argument against it is that it embodies one of the worst vestiges of our postcolonial heritage: accepting its international legal implications would mean accepting the rank immorality of the Spanish cession of the Philippines to the United States. Our future as a country was sold by one colonizer to another, violating our right to self-determination, which we have already declared on June 12, 1896 in Kawit, Cavite.

The UNCLOS, meanwhile, represents our sovereign and independent willing as a country and nation to fashion a future according to our own wishes. It marks our entry point into the modern international community in a decisive move to break away from the vestiges of an older international law where conquest was a legal means of acquiring territory.

The Treaty of Paris belonged to the Lotus era, where states did as they wished, for as long as there was no express prohibition in international law for what they did; the UNCLOS is one of those key international instruments that helped fashion an international community founded on communal values, and it is one in which we participated as a fully sovereign, newly-independent state.

Under this view, the Treaty of Paris represented an appeal to international law that may well be difficult if not impossible to successfully prosecute, because of its highly exceptional nature. But in a more complex contemporary reality, the best strategy is to adopt what is widely accepted and shared, as what can be made as a case for the UNCLOS, now with 166 member states out of a possible 193 member states of the United Nations, as of August 2013.

One connected strand of this version of the postcolonial narrative is the claim by some quarters today that it was the Philippines, along with Indonesia, that introduced the archipelagic doctrine during the deliberations at the UNCLOS conferences in 1958 and 1960.  It was the requirement of the very same archipelagic doctrine as embodied in the final document of the treaty to which we became compliant with the passage of RA 9522, the new Baselines Law assailed in Magallona v. Ermita. It is no doubt an appealing assertion of romantic history but it is unfortunately a grossly inaccurate one, its historiography either twisted or one founded on academic laxity.

It is true that the Philippines submitted proposals for a new archipelagic doctrine to the UNCLOS conferences. At the time, international law did not have a definite rule on the reaches of the territorial sea; the Philippines thus advanced the archipelago theory, which considered as a single unified whole outlying or mid-ocean archipelagos such as itself for marking out the reaches of its territorial waters by drawing baselines from the outermost points of the archipelago and the belt of marginal seas outside of such baselines. Further, consistent with its constitutional provisions on the National Territory under the 1935 Constitution and the Treaty of Paris, the Philippines asserted that waters landward of or within the baselines are internal waters.

The justification for this, according to the Philippines, is that the prevailing conceptions of the limits of the territorial sea had been based largely on the continental nature of a coastal State and did not consider the archipelagic nature of states like the Philippines.

The Philippines lost in its bid to have its archipelagic theory recognized in the UNCLOS conference. What prevailed is the view of an archipelagic state subject to the regime of the archipelagic waters now enshrined in Art  46 in relation to Article  47 (1) of Part IV of  the UNCLOS.

It is this regime in the UNCLOS that Dean Magallona argues, has eliminated wide swatches of  waters considered under the Treaty of Paris and the Philippine Constitution  to be Philippine internal waters.

But in good protester state’s fashion, following the 1958 and the 1960 UNCLOS conferences, the Philippines passed RA 3046 (later amended by RA 5446) using the outermost points of the Archipelago for the purpose of drawing straight archipelagic baselines.

RA 3046 (An Act to Define the Baselines of the Territorial Sea of the Philippines)referred to the Treaty of Paris in its preambular paragraphs, to wit:

WHEREAS, the Constitution of the Philippines describes the national territory as comprising all the territory ceded to the United States by theTreaty of Paris concluded between the United States and Spain on December 10, 1898, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on November 7, 1900, and in the treaty concluded between the United States and Great Britain on January 2, 1930, and all the territory over which the Government of the Philippine Islands exercised jurisdiction at the time of the adoption of the Constitution; (Emphasis supplied)

Our first baselines law further stated that all the waters within the limits defined in the Treaty of Paris have always been regarded as part of the territory of the Philippine Islands, to wit:

WHEREAS, all the waters within the limits set forth in the above-mentioned treaties have always been regarded as  part of the territory of the Philippine Islands;”

In Magallona v. Ermita however, our Supreme Court fell for the romantic postcolonial yarn that from the very beginning we had always been an archipelagic state and  had even originated the doctrine in the 1958 and the 1960 UNCLOS conferences; that, or it apparently confused the concept of an “Archipelago” with that of an “Archipelagic State”. It thus declared

In 1961, Congress passed Republic Act No. 3046 (RA 3046), demarcating the maritime baselines of the Philippines as an archipelagic State. xxx  (Emphasis supplied, internal citation omitted)

It bears stressing that as a legal concept, the Archipelagic State did not come into existence until it was adopted in Part IV of the UN Convention on the Law of the Sea (UNCLOS).  The Philippines considered itself an Archipelago –a unity of land and water – under its 1935, 1973 and 1987 Constitutions.  It did not become formally an Archipelagic State until, as a State Party to the UNCLOS, it applied the straight archipelagic baselines under Article 47(1), Part IV of the UNCLOS, such baselines being a feature of archipelagic States under the said Part IV of the UNCLOS.

To repeat, the Philippines is an Archipelago but it did not become an Archipelagic State until the enactment of Republic Act No. 9522 which implemented such baselines under the concept of Archipelagic State of the UNCLOS.

Art. 46, Part IV,  read with Art. 47 (1), Part IV, makes the distinction clear:

 

Use of terms

For the purposes of this Convention:

(a)”archipelagic State” means a State constituted wholly by one or more archipelagos and may include other islands;

(b) “archipelago” means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

That our Supreme Court conflated the two concepts is evident when it  quoted in Footnote 3 of the Ponencia the third “Whereas Clause” of RA 3046  as expressing the import of treating the Philippines as an archipelagic State:

“WHEREAS, all the waters around, between and connecting the various islands of the Philippine archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenance of the land territory, form part of the inland waters of the Philippines.”

Post-Colonial Prudence

It is a grievous mistake to consider this WHEREAS Clause as a way of “treating the Philippines as an archipelagic State,” because the internal waters as areas of sovereignty appurtenant to the land territory of the Philippines is precisely what is eliminated by the UNCLOS in its concept of Archipelagic State,replacing  internal waters with “archipelagic waters” for the objective right of innocent passage of all ships of all States, among other rights, as found in Art. 53 of the UNCLOS, among other provisions.

Thus we now have a legal quandary of a statute amending our constitution, albeit in international law – and this is what makes it worse – both have equal standing as binding unilateral acts  of a state.

Having said that, the egging question is whether we could have avoided the archipelagic state regime at all, despite our being a party to the UNCLOS, at least, for the time being?

The Petitioners in Magallona v. Ermita have argued in the affirmative.  It is not mandatory upon States Parties that are archipelagos to make transform themselves into archipelagic States.  This is borne out in the permissive language of Art. 47 (1), Part IV of the UNCLOS :

An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

In fact, the Supreme Court’s Ponencia in Magallona v. Executive Secretary itself acknowledged that the Petitioners’ reading of the UNCLOS is plausible, namely that– “based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522.” However, the High Court thought it was the province of Congress to say so and not theirs. Regrettably, the High Court passed off the chance to declare the new Baselines Law to have been passed and signed into law in grave abuse of discretion, at least with respect to its transformation of the Philippines into an Archipelagic state.

Which leads me to my second point about international law’s postcolonial discontents and possibilities: we’re all for human rights, jus cogens and all that, but in addition, we should also learn to use international law with postcolonial prudence.

That we have not done so is laid out in stark detail by the fact that states like Japan and Cuba – which  are archipelagos in their own right – have not declared themselves as “Archipelagic States” under Art. 47 (1), Part IV of the UNCLOS.

Instead, we made a “rush for the second place, “and simply ignored – in an exercise of “chronological snobbery” – what we have already achieved as a State, despite our tormented postcolonial heritage.

Contra textualist readings of the Treaty of Paris which do not treat the treaty limits found there as political boundaries but merely heuristic devices, we assert that we have made that Treaty ours and for our posterity by constitutional principle.

Dean Magallona does not mention it in his lecture but Petitioners have in fact argued that  under the doctrine of uti possedetis juris, the International Treaty Limits contained in the treaty have become frontiers protected by international law. The doctrine, accepted now as a general principle of international law by the International Court of Justice, served to freeze the title over territory at the time of independence, in effect producing a “photograph of the territory.”

In the territorial dispute between Burkina Faso and Mali, the International Court of Justice would affirm the principle in these words: “[t]here is no doubt that the obligation to respect pre-existing international frontiers in the event of State succession derives from a general rule of international law expressed in the formula of uti possidetis.” Read from a postcolonial perspective, the doctrine, originally applied with much initial resistance in settling decolonization issues in America and Africa, we should use to our territorial advantage. Indeed, as we have argued in Magallona v. Ermita, we have in fact constitutionalized the import of this doctrine by incorporating in the national territory provisions of practically all of our postcolonial constitutions the metes and bounds of the Treaty of Paris regime.

Dean Magallona has bewailed the schizophrenia in the stance of the Philippine delegation to the UNCLOS conferences: at the conferences, on the one hand, they consistently pursued “the dominion and sovereignty of the archipelagic state within the baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable unity of the land and water”; yet on the other hand, they still went on and signed the UNCLOS and had it ratified, though not without submitting a declaration to the UN stating that the Philippines becoming a state party to the treaty did not mean that it any manner impaired or prejudice “the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines.”

At least, today, with RA 9522 and Magallona v. Executive Secretary, we can safely say we now know where we exactly stand. Thank you

 

 

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Ode to Dean Maggi’s New Baby

By H. Harry L.  Roque, Jr.

 

I was supposed to read this reflection at the launching of Dean Merlin Magallona’s new book at Malcolm Hall last Wednesday but I missed the affair because of an urgent business that had to be done. His new ‘baby’ is part of the UP Law Centennial Textbook project. (A shorter version also appears in my column for the Manila Standard Today.)

In these days of Google, Wikipedia and that quintessential Steve Jobs legacy, the Ipad, an ink-and-paper Dictionary on Contemporary International Law may sound anachronistic.  On a philosophical level, we are reminded by what Derrida said of definitions – the stuff of which the dictionary is made – that all we get is the constant deferral of meaning.  On the level of pragmatics, we do have a sense of Derrida’s worry about the temporality of meaning, given that international law, especially over the last two decades, has been on a constant flux.

Dictionaries in general, it seems to me, are really a guide to the tug-of-war  between time and infinity, to borrow from Jorge Luis Borges, where ideas, or the key words, of a given epoch are frozen on a page for prosperity’s sake.

Nevertheless, the Argentinian novelist himself also said that:

It is venturesome to think that a coordination of words (philosophies are nothing more than that) can resemble the universe very much. It is also venturesome to think that of all these illustrious coordinations, one of them — at least in an infinitesimal way — does not resemble the universe a bit more than the others.

But here Dean Magallona has ventured to coordinate words to give meaning to words; not only that, his half a century or so of engagement with international law shows his latest work to be a set of illustrious coordination of words that at least gives us some semblance, where it is now, of the known universe of international law, or at least, of what is relevant to us from that known universe.

We can be sure that the erudition that went into this project is a universe better than what we can find in Wikipedia. That, I think is a good measure of the continuing relevance of a Dictionary of Contemporary International Law.  In other words, in this age of the democratization of mediocrity, there is still some space for the work of  the serious scholar.

Besides, as far as I know, in our part of the world, Dean Magallona’s book is the first of its kind.  Ordinarily, the phrase “the first of its kind” does not really tell us much, but string the phrase with the good Dean’s name and you can be sure it means sui generis.

In any dictionary project, the editor or author is torn between two aims: the encyclopaedic and the abbreviated.  Students will be familiar with the classic Oxford University Press’s Parry and Grant Encyclopaedic Dictionary of International Law, which takes the first approach. Now in its third edition, it covers 2,500 entries with references for further research on cases, treaties, journal articles, and websites.  As the name implies, the dictionary surveys every known area of international law, and this one-volume red book’s latest edition is the work of two scholars, no doubt aided by an army of research assistants.

Dean Magallona’s aim is more modest, but he covers the essential grounds, with entries dealing only with multi-lateral conventions and decisions of international tribunals.

In a country where scholarship in international law is notoriously uneven, a desktop reference like this will come in handy for lawyers, students and even for the members of our diplomatic corps.  We’ve been taking international law for granted that we have not seen the need for it.

In a way, our parochialism could be a function of a societal myopia induced by the kind of problems our citizens face from day to day. International law is a place in heaven and here we are all cooped up in the sorriest corner of Dante’s Inferno. So our law schools continued to subsist in teaching students an international law that is neither here nor there.

But there is hope. We are not so insulated now from the rest of the world as before. Even under repressive conditions,   political hegemony can only do so much to plug our porous electronic borders. Twitter, Facebook and Youtube make it possible for our citizens to know of fast-evolving events elsewhere that have big implications on how we ourselves look at our own problems of governance.

There is also what functional sociologists may call the “latent effect” of cheaper travel across states, regions and continents.  In the ASEAN itself, budget airlines have made it possible for ordinary Filipinos to spend holidays in neighboring countries.

They are able to see for themselves how the rule of law is upheld or otherwise discounted in other countries.  Foreign travel allows them a better assessment of where their own country stands in terms of affording its citizens freedoms and privileges.  So, other than experiencing Lawrence Durell’s “spirit of place”,  they also see how international law, at least on a regional level, may help promote the same freedoms and privileges across the board.

Moreover, these days, we now have to turn to international law to better understand the way government works out its understanding of our citizen’s constitutional rights.

There is now a keener sense of inevitability than before in the interlacements between the national and the international.

Perhaps, in the future, the Dictionary of Contemporary International Law can be expanded to include other sources of international law. What is important is that Dean Magallona’s dictionary has laid the groundwork – and it is definitely an excellent foundation for any encyclopaedic work. With more resources, the work can be expanded. That is the challenge to the next generation of scholars and students of international law from the premiere law school of the land.

My only warning to the Dean is that, to borrow from the Old Testament philosopher in Ecclesiastes, of the making of dictionaries, there is no end.  Just because it is the first shouldn’t mean it’s the last.

In a conversation with the Dean a few weeks ago, I suggested to him that his dictionary should be digitized and made available for sale as a downloadable book through Amazon or the AppleStore. In fact, the UP Press has made Philippine academic publishing history by already making some of its titles available as print and digital book versions. Through a conversion service, these UP Press titles are now sold through Amazon as well.

Because it is much cheaper to produce a digital book, it will also be easier to update a book through its digital version.  As far as I know, of a handful of dictionaries on international law extant, only the Parry and Grant Encyclopaedic Dictionary of International Law  is as of yet available as an electronic version through the Oxford University Press website.

I can’t repress a smile imagining students from all over the world downloading the Contemporary Dictionary of International Law on their Ipads, Iphones, Macs, Galaxy Tabs  and what have you.  That way you make international law sexier and more accessible. That way you also introduce to the world a distinctly Filipino take on international law. That way you also exact revenge on Derrida’s devaluing of the written text!

One hopes public international law students of the UP College of Law, upon consulting Dean Magallona’s dictionary on the meaning of straight base lines in UNCLOS, would intone Neruda’s Ode to the Dictionary (if they know Neruda at all):

Dictionary

you’re not

a tomb, sepulcher, casket

burial mound, mausoleum,

but a  preserver,

hidden fire,

the planting of rubies

living perpetuity,

of the essence,

granary  of language.

 

Perhaps, very few of them have time for poetry; I admit it takes an aficionado like Dean Magallona to see poetics in the structures and systems of his chosen field of study. But I’m sure the same students would come out of a recitation smiling if they survived one on the North Sea Continental Shelf Cases by secretly referring to it. On second thought, I really doubt if they can get away with murder, no, not under Dean Magallona.

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Dean Magallona’s New Baby!

By Romel Regalado Bagares

Yesterday, I stood in for Prof. Harry Roque, who was out of the country, at the launching of a new book by Dean Merlin Magallona at the Malcolm Hall auditorium of the University of the Philippines in Diliman, Quezon City.  This is actually the good Dean’s second book to be launched this year as part of the commemoration of the University of the Philippines College of Law’s Centenary. Dean Magallona’s first book is a critical monograph on the Supreme Court’s decisions on international law questions. The newest is his Dictionary of  Contemporary International Law — a first in Philippine legal publication, I believe.  More on this in the next post.  Prof. Katrina Legarda,  my colleague at the Lyceum Philippines University College of Law  and my former professor at the UP College of Law, gave me a copy of the book.  I’m uploading here a photo of the book, for your visual pleasure.

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