A diplomatic jus cogens

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

Reading all the hyperventilation regarding the case of Vinuya vs. Executive Secretary reminded me of the movie The Silence of the Lambs. There, Clarice Starling was trying to get information from Hannibal Lecter the identity of the serial killer Buffalo Bill. As was his wont, Lecter decides to lecture Starling instead: "First principles, Clarice. Simplicity. Read Marcus Aurelius. Of each particular thing ask: what is it in itself? What is its nature?"

Because despite all the hot wind that has been exuded due to any alleged plagiarism by the Supreme Court in that case, the matter still boils down to one simple issue: can the Philippines be compelled by its citizens to sue Japan for any injuries done by the latter to Filipinos? The answer is No. And this the Supreme Court correctly ruled.

The reason is simple: individuals have no personality under international law. Any rights or obligations they presumably have are instead held by the State, which does have international personality. The reason for this is again simple: international law is just not equipped to handle the interrelationships of billions and billions of individuals, and logically leaves the matter to the domain of local or "municipal" law.

Instead, individuals, as a group and under certain conditions, make up "people," one of the four elements that make up a State. As "people" is merely an element or component of a State (other elements being territory, government, and capacity to enter into relations with other States), the latter therefore has certain prerogatives to the same, obviously to protect its (i.e., the State’s) existence. Among these prerogatives is that States have a legal interest in their citizens and to protect this legal interest they can hold to account those who may harm its citizens. Note: the State, under international law, has no duty to protect its citizens. It has a right to hold to account those who harmed its citizens but it has no duty to protect its citizens. This the Supreme Court correctly emphasized in its Vinuya April 28, 2010 ruling.

What all this means is that, whether it be under "traditional" or present international law, nobody gets injured except the State. If a citizen gets hurt, under international law it is not the citizen that was hurt but the State to which that citizen belongs. Why is it again that it is the State that was "hurt" and not the citizen? Because a) individuals do not exist under international law, States do; and b) because people are merely components of a State for which the latter has a legal interest that such not be harmed.

Since it is the State that was harmed (under international law) and not the citizen, it then follows that under international law the right to sue for redress of the grievance belongs not to the individual (which international law does not consider to have personality) but the State. Since that right to sue (called "diplomatic protection") belongs to the State, the latter therefore has the discretion whether to use that right to sue or not. Why? Because precisely it is a "right." The right to something would also include the right not to use that right. If the Philippines, in this case, decide for whatever reason not to sue Japan, it is well within its rights under international law not to. No entity on Earth can force the Philippines to sue because the right to sue belongs only to the sovereign discretion of the Philippines.

To emphasize, under international law, States have no duty to protect its citizens. In fact, should the Philippines sue Japan and assuming it wins monetary compensation, the same rightly belongs to the Philippines and not to the comfort women. Why? Because under international law, it was not the comfort women that were hurt but the State. Dura lex sed lex.

Accordingly, all other issues, whether it be about alleged plagiarism, or jus cogens or erga omnes (which international lawyers spew out regularly to make them appear smarter), are all beside the point. International law simply does not require the Philippine government to sue another State at the say so of its citizens. The Supreme Court did not condone the sexual slavery done by Japan, which the court clearly considered horrible. It did not say that the latter’s acts were not contrary to international law. While indeed there are certain passages in the ruling that, taken out of context, would seem baffling, nevertheless as a whole the ruling merely correctly asserts that the sole discretion to sue lies -- under international law -- with the Philippines. In this case, the Supreme Court does not even have the authority under municipal law to override the Executive Branch’s discretion.

Does that mean citizens have no other recourse if their government, for example, unreasonably refuses to sue other countries despite proper public clamor to do so? Yes. When election day comes, vote smarter.


Tripping on trade again

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

Some "fans" told me to stop mucking around and write again about trade. Fine. Here goes: as I discussed recently, nobody really believes that Doha could be closed this year, what with the US close to having its midterm elections, fears of a double-dip recession, and a president whose focus and commitment to trade is muddled at best. The UK is now with a new government that would need a few months to get a grip on the power it lost for more than a decade.

Also, part of the problem lies with trade’s continued success: world trade increased by 25% year on year (according to March figures). Total country exports and imports also rose year on year. Simply put, the motivation to close Doha right now isn’t there.

And, as is usual with the developed countries, they never practice what they pompously preach to developing countries. While mouthing off declarations of continued adherence to the Doha Development agenda and the benefits that trade brings to everyone, particularly poor countries, the rich countries nevertheless continue to screw up the playing field. According to the Organization for Economic Co-operation and Development (OECD) report: "Agricultural Policies in OECD Countries: At a Glance 2010," trade distorting subsidies among developed countries (in terms of Producer Support Estimates) "rose by US$252 billion in 2009, which was the equivalent of 22 percent of total farm receipts in that year."

The danger, of course, for developing countries like the Philippines is to be tempted to go full throttle on the FTA bandwagon. Or its practical opposite, which is to revert to our past (and failed) protectionist policies. There is a probability of also glossing over the importance of trade finance, which, as WTO Director-General Pascal Lamy noted recently, "is the oil that keeps the wheels of global trade running; hence our active interest and ongoing participation in global initiatives to address the impact of the global financial crisis on the availability and cost of trade finance. The fact is that around 80 percent of world trade is financed by some form of credit."

Having said that, Philippine tariffs on practically all imports from the original ASEAN five should go 0%. Add to this an assortment of products coming from China, Australia, New Zealand, Korea, and Japan. While definitely good news for consumers, businessmen here (particularly for the automotive and electronics sectors) are trying to put a brave face to an otherwise more competitive (and definitely, for the Philippines as a whole, welcome) situation. Reportedly, the likely gainers would be hog exporters and soap makers. The rest would most probably find themselves vulnerable to foreign competition, which is really all the better for the Philippines.

China, under the ASEAN-China free trade deal, should remove tariffs on 90% of goods from the Philippines. Various stages of tariff reductions are also in the works for Philippine goods exported to Japan, Australia and New Zealand, and Korea. Whether local business will actually be able to take advantage of the tariff reductions and produce as needed by demand is another matter.

Which leads to this thing that must be emphasized -- a point I’ve been making repeatedly ad nauseam -- and that is, the mere presence of FTAs would not necessarily mean increased business for the Philippines. This thought should be tied up with the OECD report "OECD Innovation Strategy," which declared that "innovation and coherence in policy interventions can spur economic recovery." Which is really quite obvious when you think about it. However, as the report goes, "innovation policies should encompass a wide range of activities in addition to the standard research and development (R&D). Other critical areas include design, marketing and organizational changes. Consequently, innovation should be addressed and encouraged in an increasingly horizontal approach, through a wide spectre of policies."

Lest people forget, the Philippines is still locked in the midst of several significant trade disputes. There are the two complaints we filed way back in 2002 against Australia (DS270 and DS271) due to its alleged discriminatory treatment of our fruit and vegetable exports. Interestingly enough, nobody seems to be inclined to proceed with this long-pending case, with not even a panel being formed (despite taunts hurled our way). However, gratifyingly enough, there was good news indeed in our third-party complaint in DS375/376/377 -- EC Measures on certain ITA Products.

Then there’s DS371, formally designated as Thailand -- Customs and Fiscal Measures on Cigarettes from the Philippines, as well as the dispute formally lodged as Philippines -- Taxes on Distilled Spirits (docketed as DS396). The EC’s complaint against the Philippines in the latter case centers on whether Philippine excise taxes on distilled liquor (as imposed by RA 9334) discriminate against imports and in favor of domestic products.

And, finally, whatever happened to the competition policy bills pending in the Senate last year? Or, for that matter, the Trade Representative Office bill?

The coming days should be interesting.



is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

The World Trade Organization issued its findings, long awaited, on the Airbus dispute. While your Trade Tripper would normally leap at the opportunity to write about the intricacies of that case, nevertheless, quite frankly, his interest lies in the matter involving the Philippines, Thailand, and cigarettes. So, in the meantime, while the ruling for that case is still not out, let’s talk about a word that people seem to be bandying about nowadays: unity.

Of course, since the elections are over, the winners are evoking (nay, demanding) unity from everybody. There is nothing wrong with unity, mind you. If people can all work together then the better. This country needs every help it can get. If this new government of ours would widen its bench and get the very best people in the service of our country, regardless of family or social background, that would be quite historic in itself and would go a long way toward our being a better country.

However, unity can only go so far. And it shouldn’t be at the expense of compromising on one’s beliefs. While supposed political sophisticates tell us to take campaign promises with a grain of salt; I, on the other hand, would still like to think that words matter. That when a man says something, he should take responsibility for his words, mean what he says, and do what he said. A person who would compromise on his beliefs can absolutely be relied upon, sooner or later, to betray his friends, government, or country. We’ve long had too many people in government and business whose words have less value than cow poop.

Abraham Lincoln’s "team of rivals" concept got a big amount of airplay last year. The idea behind it was to tap the deepest possible talent available for public office. However, note that it did not require those chosen to compromise on their beliefs. In fact, they were precisely chosen because they had taken positions contrary to Lincoln and were thus expected to create tension, more profound discussions, and creativity in the making of positions or policy while in government. This, of course, presupposes that those appointed are not only people of strong character but, equally important, of strong beliefs. The problem with any government, particularly for this new government of ours, is to fashion a team out of like-minded individuals, chosen more for their political savvy or loyalty, and -- definitely disastrously -- without any strong belief in anything whatsoever except their own personal interests.

The other concept of unity that should be considered is unity in beliefs, which then translate to unity in policies and programs. For far so long we have been making laws or measures that are the national government’s version of the little Dutch boy and the dam. They are just stopgap measures looking no further than the near term, without any view whatsoever to the overall cohesion of the laws, and without considering if such laws be actually reflective of our values, culture, history, and aspirations.

Thus, we find our government coffers empty and so we impose a new tax. Our trading partners get interested in trade agreements, so we have to join them as well. Some NGO gets fresh foreign funding to advocate for something about the environment, we make laws on the environment. A human rights lawyers group wants to make a name for themselves, some pointless human rights law is legislated. All this without determining what the consequences are, how such laws are to be implemented or enforced, and how they actually serve overall national interests.

This is not how a responsible government should work and definitely not how a mature country acts. We, our leaders and ordinary citizens, should have a clear idea of what kind of country we want to be. Are we a country that holds family values dear or do we adhere to the values of more liberal societies? Do we believe that a stronger country would result from our local communities being enhanced or do we think that national institutions are to be developed? Do we go for a more welfare, patristic society, or one that encourages individual merit or talent? We have to act like a country rather than the bi-polar schizo group of islands we’ve been for decades.

To do this, our laws must have cohesion: our tax laws are related to education which in turn is related to trade policy which in turn is related to our criminal laws and which in turn is related to health policy which in turn is related to national defense and security. They are connected. And they must be cohesive, unified. And we can do that if we are not confused with what we want, with what kind of country we want to be.

That’s the kind of unity I want. And that, I believe, is what will lead to the change we need.


Traitors: 'may you live forever'

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

Last week the Facebook pages were rife with shout-outs about traitors and how "once a traitor, always a traitor." This article will not discuss those shout-outs. And, no, this article is not about the e-mail "____ ____: The Traitor" (cheezy but a great read). Rather, let’s take some time to discuss that most despicable of creatures: the traitor.

Nobody likes traitors. If you do, it’s probably because you’re one as well. On a personal level, he’s the boss who will step all over you in complete disregard of the promises he made while hiring you, the co-worker who denies all pinagsamahan to save his professional skin, the friend who’d rather keep quiet than make an enemy to defend your name. On a larger scale, they’re the ones who betrayed a nation, an idea, or a faith. I’ve had, unfortunately, some fair amount of experience with traitors, unknowingly and without any option on my part, to have worked for or dealt with some of them. Nevertheless, I’m actually in pretty good company.

Jesus, of course, was betrayed by the most infamous traitor in history. In fact, Judas’ betrayal of Christ is such that the etymology of the word "traitor" is derived from Judas’ act of delivering Jesus to the Jewish chief priests. Thus, the Latin traditorem ("one who delivers"). Julius Cesar was killed by two famous traitors, later immortalized by Shakespeare: Brutus and Cassius. As usual, Shakespeare had the best word to say of traitors and betrayal, calling their acts "worse than murder." St. Thomas More had Richard Rich. After the latter committed perjury in exchange for being appointed Attorney-General for Wales, More famously retorted: "Why Richard, it profits a man nothing to give his soul for the whole world...but for Wales?"

Cambridge had the infamous Cambridge Five, which provided Frederick Forsythe years of espionage stories to tell. There’s William Joyce (Lord Haw-Haw to international law students), who broadcasted propaganda for the Nazis. The US had Benedict Arnold, who plotted to surrender West Point to the British. Being foiled, he then defected to the British army. Then there’s the interestingly named Iva Ikuko Toguri D’Aquino, otherwise known as "Tokyo Rose" of World War II.

The Philippines, definitely, has its share of traitors. There’s that scout who showed the Americans the rout to beat Del Pilar at Tirad Pass, the Macabebes who helped capture Aguinaldo, the illustrado turncoats who sided with the Spanish and Americans, those cowards who collaborated with the Japanese, and on and on. The difference, however, is this: in other countries traitors are shot, imprisoned, or shamed; in the Philippines traitors (or their children or grandchildren) get elected or appointed to high office.

Dr. Humberto Nagera, in his study Conflict, Treason and Terrorism: An Attempt at Psychoanalytic Understanding, defines traitor as one who betrays the allegiance or trust that is due one’s country, family, friends, meaningful relationships and one’s general principles. As expected, traitors have poor self-esteem and self-regard and low feelings of self worth.

According to Dr. Nagera: "Clinically, too, it would be observed that the genuine traitor is highly prone to be narcissistically injured, which given his deficits in this area frequently happens to him. x x x That there are significant narcissistic problems in the malignant traitors is shown by the difficulties seen regarding their self-esteem regulation, self-regard and feeling of self worth and problems with their identities."

Interestingly, traitors have "poor father figures in their lives." As such, traitors have "passive homosexual longings for the father [that] remain quite active all through their lives and constitute a constant source of conflict that represents a serious threat to the masculinity of those in this group that have achieved a more clear sexual identity." Mind you, Dr. Nagera is not saying anything derogatory about sexual orientations. Rather, his focus was on the ill effects of the inner conflict. Which is probably true because one of the most traitorous guys I’ve met actually once threatened to punch a female co-worker in the face while shouting "do you know me, do you know my family?" Thus betraying his incredible insecurity, inner conflict about his sexuality, and amnesia (as he couldn’t even remember his name or family).

So, there seems to be a gem of truth in the saying "once a traitor, always a traitor." Dr. Nagera even points out that traitors "actually believe their behavior is fully justified." Like any cheap plotter, traitors see themselves "highly principled individuals trying to correct ’injustices’ or stop the ’unprincipled behavior of others’."

Clearly, traitors are sick, useless, cowardly people. But if that be so, then how weak and pathetic would you consider somebody who deliberately decides to surround himself with traitors?

Nevertheless, it’s the weekend. So let’s just content ourselves for now by singing happily:

"If we hold on together,
I know our dreams will never die,
Dreams see us through to forever,
Where clouds roll by."


Eat, drink, hell

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

My wife once said: "Hell is the impossibility of reason. That’s what this place feels like. Hell." Ok, not really. My wife didn’t say that. Charlie Sheen’s character in Platoon did. But she could also very well have said it considering what she’s been through when she tried setting up her foodcourt business recently.

You see, the little lady (at this point I shall refer to my wife, in imitation of those pretentious writers, mostly from the country’s leading daily who think they’re the print version of Mr. and Mrs. Smith, by all sorts of inappropriate nicknames) is a lawyer like me. And, like any sane lawyer, particularly one who spent years in litigation, badly wants to get out of the inanity that is the Philippine legal profession. Inasmuch as her passion (secondary I hope) is food, then the logical avenue of escape for her seemed to be the food business.

So, when a new commercial building opened up along Sumulong Highway, just beside Fatima University, we decided "why not?" and enthusiastically plunged into our first foray as entrepreneurs (with the proper French inflection). It was then we realized that our training as lawyers was absolutely of no help in setting up our foodcourt business. For one, we were simply thinking rationally. A degree in business management from Welfareville, Mandaluyong, would have been better. Furthermore, we were also making completely unrealistic assumptions. One assumption is that the City of Antipolo would be quite glad for new businesses to come along. It wasn’t. Instead, our applications for mayor’s permits, health, engineering, etc. were treated suspiciously. Or, to be accurate, contemptuously. Several trips would always result in new documentary requirements that were never previously asked. People who were supposed to approve our applications were always on extended lunch break or anywhere but their desks. Baranggay offices were hidden in the most obscure corners of the town and kulang na lang may camouflage paint yung buildings.

The problem wasn’t limited to Antipolo, which, in all honesty, is a great place to live, it having the best air in the metropolis for the simple reason that it’s actually air you’re breathing. The DTI also gave the missus the runaround when she wanted to register her trade name. First, the wifey was told to research the name at DTI, then register in DTI Antipolo (which closed or transferred offices for some reason), and then await DTI Makati’s decision. The BIR wasn’t to be left behind, of course, in the runaround game. My babe had to go to BIR Antipolo, then told to clear something at BIR Atrium, which really meant BIR Buendia, and then back to BIR Antipolo for mandatory training on how the income tax system works (which sweetie really needed as she taught tax law and is an experienced banking lawyer).

All the foregoing just brought to vivid life what the International Finance Corporation (a member of the World Bank Group) found of the Philippines in its 2010 "Ease of Doing Business." Of 183 countries worldwide, the Philippines ranked 144. This was a demotion from its 141 ranking the previous year.

Good thing we didn’t know this when we started, but the Philippines actually ranks worse in ease of "Starting a Business." In this criterion, the Philippines ranks 162 (down from its 155 ranking in 2009). One reason for this is that the Philippines takes almost an extra two weeks to process applications, 23% more costly to start up, and takes as much as 10 more procedures than other countries. However, as a sort of perverse consolation, the Philippines did not deteriorate as far as the ease of "Closing a Business" is concerned.

In any event, my woman was able to set up her foodcourt business and so far she finds it quite rewarding. And my lady (pronounced "mah ley-deh") finds rather fun the process of costing, setting the inventory, refereeing personnel squabbles, and even the inter-stall gossip and intrigues. It’s also an invigorating treat for us to serve food to the nice students at Fatima, while at the same time introducing them to the various cuisines that my sugar bumps finds interesting. I’m sure they don’t care that an international trade lawyer, recent Bar examiner, and BusinessWorld columnist is serving them or clearing up their dishes on occasion. Which is fine by me and God bless those students and their teachers.

What is not fine is that Hollywood Mall, where our foodcourt is located, suddenly felt like having a blackout. For 20 freakin’ days now and running, all the stalls had to serve food to the students in the dark. Which is ridiculous (or baka katangahan talaga) as the Meralco training center for linesmen is a mere five-minute drive away. Then Antipolo City decides, at the start of the schoolyear and the rainy season, to dig up and reconstruct the road in front of Hollywood Mall, inevitably clogging up traffic.