Direct Effect and a Post-Colonial Constitutional Prerogative against ‘Cheap International Law’

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Posting here the concluding section of a draft research paper I presented this late January at the ASEAN Law Academy of the National University of Singapore Centre for International Law (please note that given the tentative and unfinished nature of the paper, I am posting this merely for discussion purposes. Nothing in this post may be referenced, cited, or quoted without my permission):

Misunderstood, misinterpreted, misapplied, international law has become a sort of juridical panacea, a universal thesaurus, always at hand for any solution that can be desired in any ticklish litigation. It is even recognized as endowed with aseity.

J. Perfecto, dissenting opinion, Tubb v Reiss

In the 2021 case of Pangilinan v Cayetano, the Philippines Supreme Court expressly recognized for the first time the distinction between objective international law and the Philippine practice of international law and the political function of the Courts when dealing with international…

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

A backgrounder to the current Philippines-Malaysia exchange of diplomatic notes on the Sabah question, from remarks delivered at a University of Malaya forum in 2013.

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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…

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

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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 defaultcompulsory 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, aVietnamese news outletreported the names of three other nominees, all VietnameseUNCLOS experts:Professor Nguyen Hong Thao of the Diplomatic Academy of Vietnam and amember of United Nations International Law Commission, Dr. Nguyen Thi Lan Anh,former Vice Chair ofthe Vietnamese…

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

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I 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 says 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…

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Böckenförde on Our Lady of Guadalupe

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Exactly my thoughts on Our Lady of Guadalupe v Morrisey-Beru (US Supreme Court, 2020):

“As the new ethical liberalism fails to take conscience seriously, it also risks undermining the claims of community. It is at least arguable that the central idea of liberalism is not even the free individual, but the community of persons committed to the collective pursuit of truth, goodness, and beauty, free from the coercive orders of politics and law. This idea reaches back behind the second more individualistic wave of liberalism, associated with the Enlightenment and the values of the French Revolution, to what Böckenförde—and others such as Harold Berman and Larry Siedentop—identified as the first step towards the liberal secular state in the 11th century Gregorian reforms and the emergence of the Church as a competing authority to kingly rule But it is also present in 19th century struggles to disentangle church from state…

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The Hagiography of the Barmen Declaration

Here is George Harinck demolishing the hagiography around the Barmen Declaration, during a lecture at Fuller Seminary.

My notes of his lecture:

it was a theological statement , not a political tract. It was not a protest against National Socialism as such, but against German Protestant Christians who violated the classic Lutheran division of responsibilities between church and state (using Hitler, a nominal Catholic, to advance their ecclessiastical careers).

High-ranking Protestant churchmen (who were also leading Nazi party-members) who attended its Synodical drafting all endorsed it, because they did not see it as a threat to politics. Neither did Hitler, who didn’t want to meddle in church affairs as he did not really understand the Protestant church dynamics.

The backdrop to this is a German Protestant Church that resented the secularization embodied in the Weimar Republic and the ascendant Catholics who led its short-lived reign.

The Nazi ideology appealed to this longing for relevance in the German Protestant Church.

The Declaration was really Karl Barth’s singular ecclessiastical achievement, yet it was more than anything else, an attack on his old enemy — natural theology.

In other words, it was a jeremiad against the new intertwinement between church and culture that National Socialism creeping into the German Protestant church had represented.

Thus, the Barmen Declaration was an attempt to redefine the relationship between the German Protestant church and National Socialism, and not an all-out critique of Nazi ideology as such.

Moreover, it had nothing to say about Hitler’s anti-semitism, and while its six theses quoted from Scripture, none were from the Old Testament, that very Jewish Bible. It was only years later, with the benefit of hindsight, that Barth would frame it as a choice between Christianity and Nazism.

Against this, the Dutch neoCalvinists like Klaas Schilder criticized Barth’s earlier position, arguing that National Socialism was a societal and political evil that must be denounced and resisted. Membership in the Nazi party is demonic participation in a demonic organization. 

Also, Harinck missed Herman Dooyeweerd writing early on against the racism of the Nazi party in his essay, De grondwet van de nieuwe Duitsche evangelische kerk en de positie der Gereformeerden in de “Landskerken” in: Anti-Revolutionaire Staatkunde, maandelijks orgaan, jrg. 09 (1933), p. 433-446

“De kerk heeft reeds haar onaantastbare grenzen tegenover de staat uitgewist, zij heeft reeds een principiële inbreuk op haar wezenskarakter aanvaard, door zich, zij ’t al onder protest van een belangrijke minderheid, te binden aan de rassengrondslag van de nieuw Duitse staatsorde.
Zij heeft de bekende Ariërparagraaf uit de Duitse ambtenarenwet ook op de geestelijke ambtsdragers van toepassing verklaard en zich ook ten aanzien van de kerkelijke huwelijksbevestiging op het rassenstandpunt gesteld. De (nat.-soc.) Duitsche christenen dreven dit besluit door. […]
Maar de Christelijke kerk kan niet gedogen, dat zij aan een “rassen-theorie” wordt gebonden. Zij kan niet, zonder geestelijk zelfmoord te plegen, afwijken van de leer van het Evangelie, dat in Christus geen onderscheid kan zijn tussen Griek of Jood. […]
Welnu, dan volge de kerk ook niet de “rassenpolitiek” van de nieuwe staatsorde.”

(“The church has already erased its untouchable borders from the state, it has already accepted a fundamental violation of its essence by committing itself, albeit in protest of an important minority, to the racial basis of the new German state order. She has also declared the well-known Aryan paragraph from the German civil service law applicable to the spiritual office holders and has also taken the racial standpoint with regard to the ecclesiastical marriage affirmation. The (nat.-soc.) German Christians made this decision. […]
But the Christian church cannot tolerate being bound to a “racial theory.” Without committing spiritual suicide, it cannot deviate from the teaching of the Gospel, which in Christ cannot distinguish between Greek and Jew. […]
Well, then the church does not follow the “racial policy” of the new state order. “)

[My thanks to Jan der Nederlanden for pointing out these resources].

There’s much to learn from this in relation to current events.

On the Uses (and Abuses) of Religion in the Public Square by Public Officials –

I am not quite a Rawlsian when it comes to the use of religion in the public square. I tend to be a mixture of the Hauerwasian and the Habermasian in these things. 

So it piqued my interest when, three days after the NTC “killed” analog ABS-CBN, I read House Speaker Alan Peter Cayetano ‘s statement crucifying Sol Gen Calida for his alleged “constitutional meddling” in a matter that belongs to the legislature’s “sphere sovereignty”, to use that very Protestant concept. 

I know Sol Gen Calida knows his Bible very well — not too long ago I read his published testimony about how the Lord Jesus Christ transformed his heart from his younger womanizing ways into a dedicated husband. 

I wonder what his reaction will be when he reads the long note from his fellow avid Bible reader, Speaker Cayetano, which starts with prophetic warning from the ancient Jewish prophet Jeremiah: “But you, LORD, know all their plots to kill me. Do not forgive their crimes or blot out their sins from your sight. Let them be overthrown before you; deal with them in the time of your anger.”(Jeremiah 18:23, NIV)

Any plain reading of the biblical text deployed here would give the impression that, per Speaker Cayetano, Sol Gen Calida :

1. Has been plotting to “kill” the Speaker (at the very least, figuratively);
2. It is sinful of Sol Gen Calida to do so;
3. Sol Gen Calida, a self-confessed born again Christian like Speaker Cayetano, is a sinner who does not deserve forgiveness;
4. God will overthrow Sol Gen Calida for his sins against Speaker Cayetano;
5. And God will do so in the time of God’s anger.

These are powerful statements, perhaps, as powerful as the one attributed to Pilate by the gospel writers –

‘When Pilate saw that he was getting nowhere, but that instead an uproar was starting, he took water and washed his hands in front of the crowd. “I am innocent of this man’s blood,” he said. “It is your responsibility!”‘ (Matthew 27:24, NIV)

PS – apologies to my Reformed Protestant friends; like Speaker Cayetano, I use the NIV out of evangelical habits, though for deeper study, I tend to use my old red Oxford Revised Standard Bible (that standard liberal text!).

On Law and History beyond Historicism

Is legal history history as the historian understands it?

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It is a trivial truth that legal history is not economic history or art history.

For ontological historicism, however, there is an immediate problem: what criterion would permit the distinction of these several domains of investigation? Whatever way you look at it, the criterion itself can never be just historical. Without a concept of law, one cannot practice legal history. Although that concept, in its subjective theoretical character, will have a history of its own, nevertheless as law concept it inevitably tries to grasp in theory the constant modal structure which guarantees the juridical character of legal phenomena.

Anyone who thinks that the legal historian has constantly to adapt his concept of law to the different popular opinions about law, which arise in the various periods he studies, has not yet understood much of the problem we are examining. In the first place, the concept of law is an articulated scientific…

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Henk Geertsema on Problems with the Classical Notion of Causation

an excerpt from whose Which Causality, Whose Explanation? (Philosophia Reformata, Vol. 67 (2002)

The absolutization of causality in a specific modal sense did not start, though, with physics in modern times. Within theology the problem has been there for a much longer time. If in science physical causality is made absolute as an explanation of reality there is no room left for human freedom and responsibility. But a similar problem did arise in theology: how can human freedom and responsibility be united with the idea of the omnipotence of God? Dooyeweerd discusses the issue in relation to the cosmological proof of the existence of God. God is seen as the ultimate cause in a continuous series of causes.^[1] But this view seems to leave no room for human freedom.

The argument goes as follows. Either the idea of God as the ultimate cause is the result of a specific metaphysical position as in the Aristotelian view of potentiality and actuality where God as pure actuality is seen as the unmoved mover. But this approach does not prove anything for those who do not share the metaphysical startingpoint.^[2]  Or the argument relates to human experience but then the series of causes of which God is the ultimate has to be taken in a specific modal sense. It could be kinetic, biological or even psychological. In all cases, though, there will be no place left for causality in the normative aspects. As such a continuous series of causes leaves no room for a hiatus which could be filled up by another type of cause especially not one which is of a normative nature, because the latter “implies that the acting subject itself is a final point of reference in the normative aspects of the causal relation”.^[3] Besides, if God is taken as the ultimate cause this means by definition that the cause is absolute.^[4] So the argument leaves no room for human freedom and responsibility.

The error made is that God’s being the ultimate cause or origin of reality is taken in a modal sense. For the use of this idea – which Dooyeweerd as such accepts – within a theoretical argument it is necessary that it is understood in a temporal modal sense. But this is not possible and it must lead to insoluble problems. God as the ultimate Origin transcends human theoretical analysis. “For human thought it is absolutely impossible to form a defined concept of causality in the supertemporal fulness of meaning or in the sense of God’s creative act”.^[5] Therefore, every attempt to explain in a theoretical conception the relationship between the way God acts and the way in which creational processes occur will lead to antinomies. Human action already is incapable of being fully understood in a modal functionalistic way because as a person the human being transcends the modal diversity.^[6] For God as the Origin of created reality this is even more the case. In a way all modal causality refers to God as the Origin but not as the ultimate cause in a continuous series that is understood in a modal sense. The relationship between the sovereignty of God as the Creator and human responsibility and freedom therefore can not be explained or accounted for in a theoretical system limited as the latter is to the boundaries of temporal reality. Every attempt to transgress these boundaries will lead to insoluble problems. Either God’s sovereignty is taken in too limited a sense or human responsibility and freedom are given no room. There is a boundary here that theoretical analysis cannot transgress because of its inner nature. Where it does try to do so this is by itself of a religious nature: it is absolutizing a part of the creation by making theoretical reason itself into something absolute.

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^[1] Cf. NC II, 38ff.

^[2] NC II, 39.

^[3] L.c. 39.

^[4] L.c. 41. To do fully justice to the mediaeval position Dooyeweerd should also have discussed the distinction and relationship between God as primary cause and secondary causes that are part of the creation.

^[5] L.c. 41.

^[6] Cf. Th. Nagel, The view from nowhere. Oxford, 1986: Oxford University Press, 110ff. about the mystery of freedom.

A common good constitutionalism?

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.

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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…

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