Supreme Court supremely right

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

The interesting thing about the case of Vinuya vs. Executive Secretary is its demonstration of how a mob mentality works. People keep huffing and puff ing, making shrill emotional remarks, not even allowing things like ... oh, the law and accurate information to get in their way. In the end, however, is one inescapable fact: the Supreme Court was right in its April 28, 2010, decision.

Truth is, any alleged plagiarism in this case is beside the point and best decided in a separate proceeding. The supposed plagiarized statements do not relate to the main issue of the decision and doesn’t even form part of the rationale for it. The alleged plagiarization had to do with a discussion on the nature of jus cogens. However, the main question for this case is: 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 jus cogens issue is, frankly, almost unnecessary. The decision could have been made without it. The Supreme Court already clearly considered the "comfort women" program of the Japanese as an "unimaginable horror," causing "unmitigated misery" to its victims. Jus cogens, a technical term in international law, essentially denotes a norm from which no derogation can be made. Some parties argue that the prohibition on sexual slavery is jus cogens (as well as erga omnes, the obvert of jus cogens, which means binding to all). The problem is, the Supreme Court got taken in by the jus cogens red herring and dwelt extensively on it. Even then, the Supreme Court made a quite reasonable (albeit arguable) assertion that there seems to be lack of definite proof that sexual slavery is indeed jus cogens under international law (and self-serving lawyer’s declarations or book quotations are not proof). After all, one can’t expect the Supreme Court to declare something jus cogens just because an activist lawyer says so. Something of actual substance is needed, like jurisprudence or treaty provisions. It is here where the alleged plagiarism took place.

As the Supreme Court explained (patiently, in my view) to the parties in its ruling: yes, there is such a thing as jus cogens, but where is the authority that says the ban on sexually slavery is one? Even the International Law Commission, according to the Supreme Court, seems to leave it to time and practice to determine what constitutes jus cogens.

However, all that discussion is futile. Because whether or not the prohibition on sexual slavery is jus cogens (and, frankly, I agree it is), the fact still remains that the Philippine government cannot be compelled by anybody to sue another state. International law does not consider the "comfort women" to be the ones harmed by Japan but the Philippines. Thus, the right to sue belongs not to the comfort women but to the Philippines. To this must be coupled the fact that, under international law, although states have the right to hold to account those who harmed their citizens, nevertheless, they have no duty to protect them.

Again, the alleged plagiarism revolved around the question on the nature of jus cogens. Indeed, even the comment that I’ve read from one of the authors allegedly plagiarized, Evan Criddle, focuses merely on his argument that the prohibition against sexual slavery is jus cogens: "Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is that it implies that the prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens norms. Our article emphatically asserts the opposite." But as we’ve seen, whether the sexual slavery ban is jus cogens is really a lesser concern when viewed under the context of the actual issue of the case and that is the Philippines’ unquestionable sovereign right to decide whether or not to sue another state.

Some parties point to the ILC’s Draft Statute on State Responsibility (of which my teacher, James Crawford, led in its drafting and even allowed us his students to comment on his work) as basis for their argument that the Philippines can indeed be compelled to sue Japan. But even a grade school student reading the same can see that such is not true. Article 48 alone is replete with clearly optional phrasing like "entitled to invoke" or "may claim from the responsible State." And let’s not forget, it’s a "draft" statute. The point here is that the right to sue obviously includes the right not to sue (kaya nga siya "right" eh).

So, rather than hyperventilating self-righteously as some lawyers’ groups are doing, some self-restraint is clearly in order. Rather than making confused idiotic statements like "supreme theft" or "intellectual fraud" in "order to mislead and deceive" people, those commenting on this subject should exhibit a little more respect for our Supreme Court. And a clearer, more informed thinking about public international law.