Tag Archives: international law

Doing long-haul diplomacy in Pinyin

Does the arbitral court’s discussion of kompetenz-kompetenz make sense?” W., a young female Chinese graduate student, softly asks me as we walk past Beijing’s Ministry of Foreign Affairs building under an afternoon drizzle recently.

Her question is at the heart of the Permanent Court of Arbitration’s (PCA) jurisdiction over the South China Sea case filed by the Philippines, despite China’s objection.
“It’s the arbitral court’s competence to rule on its own competence to hear the dispute,” I answer, with a nod to Kelsen’s theory that international law springs from a grundnorm (fundamental norm). She obviously knows. She’s politely raising doubts over the PCA’s voiding of the “nine-dash line” claim.

Following an international law conference in Beijing in mid-October, W. shows Herbert Loja—a Pinoy PhD student at the Hong Kong University—and me around the city’s tourist spots.

Many young people now study international law in droves after the court’s ruling, says W., a student at the China University of Political Science and Law. Are Filipinos her age similarly driven? I wonder.

Conversant with Mao and Marx, she is tall and lively, and speaks English with a slight British accent, acquired by “listening to BBC broadcasts.” If her studies are an indication, her generation of students knows Western modes of thinking in international law, and the imperialist roots of the current purportedly rules-based international legal regime.
Earlier, over a lunch of bowls of steaming noodles in a trendy basement restaurant on Wangfujing street, we discussed a new book on theories of international law by a noted European scholar.

At the Asian Society of International Law conference hosted by Renmin University where Herbert and I read papers, scholars pondered the global shifts that had taken place since 2016. State sovereignty is back with a vengeance, said Society president Harry Roque. With the American retreat deep into national anxieties, emergent powers have freer rein to pursue their own vision of international relations in a multipolar world.

Cynicism is rife. Former colonies oppose universal rules with new vigor, saying such were made to favor former colonizers. The old logic of international law as might is right resonates with countries that should know better, precisely because, once upon a time, they were at its receiving end. But it pays to remember, argued professor Shinya Murase, that it was newly decolonized states (the Philippines included) that pushed the United Nations for equal human rights protection.

The drizzle is now a downpour, as we reach the gates of the colossal 18-hectare National Museum of China. Nearly half the size of our Mall of Asia, it’s a stone’s throw away from Tiananmen Square, scene of a massacre in 1989, when Chinese army tanks crushed a prodemocracy student protest. The carnage is forgotten while the museum runs a permanent exhibit, “The Road of Rejuvenation,” on the Western powers’ humiliation of China and its desire for vindication.

A beneficiary of the dividends of China’s huge investments in higher education, W. hopes to become a diplomat. For now, she volunteers for a Chinese NGO working among Syrian refugees in Turkey, and plans to get an internship at The Hague next year.
Though many Chinese universities now rank among the world’s best, few Filipinos think of Beijing as an education mecca. But we need to thoughtfully argue our rightful place as a nation, in a language that the Chinese understand very well—theirs.

If language is a door to a culture’s deepest thoughts, imagine Filipino legal scholars discussing fluently in Pinyin with their Chinese counterparts the finer points of China’s own Hobbesian realpolitik toward other states! In fact, we need more young Filipino scholars from all possible fields studying in the best Chinese universities.

There, they may yet win respect from China’s future leaders for the unfinished struggle for self-determination of Asia’s first republic.

Earlier published at : https://opinion.inquirer.net/117175/doing-long-haul-diplomacy-in-pinyin#ixzz5XYCO8xCN

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The UDHR and the Ontology of Rights

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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The state, human rights and the simultaneous realization of norms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*human rights themed image  taken from the oxfam website.

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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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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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