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.