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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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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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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When Filipino evangelical christians invoke Romans 13 like a magical incantation….

For the German Calvinist jurist Johannes Althusius (1557-1638), the biblical call to obey divinely-ordained rulers presupposes, to begin with, that they are legitimate representatives of God. 

However, when they offend God and defy true religion, they cease to be God’s servants and become tyrannous. As tyrants, they lose their political offices and return to private life; they then become subject to the natural rights of self-defense. 

Althusius was the first thinker – Protestant or Catholic – to offer a systematic account of political and communal life (probably outside of Thomas Aquinas). 

This he made in his famous work Politica Methodice Digesta, Atque Exemplis Sacris et Profanis Illustrata (1610), which is often invoked as the political theoretical basis of federated states today as well as of the Protestant political principle of” sphere sovereignty.“

Althusius, according to the American legal scholar John Witte in his 2007 book Reformation of Rights, is distinguished for his idea that tyranny is essentially a “constitutional violation.” 

By this, he means “a violation of the political covenant by which the polity itself was constituted, a violation of the constitutional duties of the rulers and the fundamental rights of the people as set out in this political covenant, and even more fundamentally a violation of the natural law and natural rights that undergird and empower all constitutions and covenants.” 

Witte explains further:

‘For Althusius, a tyrant was a magistrate who acted “illegally and unnaturally” (contra legem et naturam) in breach of the contractual and covenantal duties that he or she swore to God and to the people. Any “egregious,” “chronic,” “persistent,” “pervasive,” “willful,” “intentional,” and “widespread” breach of a ruler’s constitutional duties, abuse of his constitutional powers, neglect of his constitutional offices, usurpation of another’s constitutional office, or violation of the people’s constitutional rights and liberties was, for Althusius, a prima facie case of tyranny. ‘

Here, the jurist of Emden was merely following the logic of John Calvin’s commentary on Romans 13. Here, Calvin writes for instance that:

Magistrates may hence learn what their vocation is, for they are not to rule for their own interest, but for the public good; nor are they endued with unbridled power, but what is restricted to the wellbeing of their subjects; in short, they are responsible to God and to men in the exercise of their power. For as they are deputed by God and do his business, they must give an account to him: and then the ministration which God has committed to them has a regard to the subjects, they are therefore debtors also to them. And private men are reminded, that it is through the divine goodness that they are defended by the sword of princes against injuries done by the wicked (emphasis supplied).

Althusius, says Witte, also considered as prima facie tyrannical violations of due process the following, especially if done systematically

“false arrests, accusations, indictments, and sentences of innocent parties, false imprisonment or protracted pre-trial incarceration, torture, starvation, or enslavement of prisoners, use of anonymous indictments and untested evidence, denial of rights to defend oneself, to have counsel, to examine hostile witness, to introduce exculpatory evidence, or even to have one’s day in court following prescribed procedures, imposition of extraor- dinary tribunals or ex post facto laws, use of biased, bribed, or incompetent judges, imposition of unjust, inequitable, or widely variant punishments, failure to grant appeals of motions, judgments, or sentences, excessive fines, cruel punishments, and more.”

For Althusius, these systematic abuses require a systematic constitutional response.

Now dear Filipino Protestant evangelical christians, please apply that to our current political quandary.

Suing China before the ICJ over COVID-19

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

We all know China’s usual stance on international litigation” : stay away from it, when it goes against your interest. And because state-to-state litigation in international law is pretty much a mirror of its largely consent-based system, the challenge is to find exceptional grounds against the general rule.

Here Tzeng discusses possible grounds for compulsory jurisdiction within the World Health Organization Charter, notably Article 75, which provides: “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice. He links here too an opinion piece I wrote on the question last March 22 for…

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