No to the ICC

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

This thought bears repeating as the circumstances seem to keep damnably recurring: in the world of international law, it is a truth universally acknowledged that the Philippines is indeed more popish than the pope. Really, we have created the very strong impression that we’d rather adhere to international law even over that of our own domestic laws (or interests) on any given subject.

We’re probably the only country in this planet like that. One example is the enactment of RA 9851 or the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity," considering that the necessity for it, more so the urgency with which such law was passed, is -- simply put -- not present.

Now the reason why I have to emphasize this point again is because of the recent resurgence to have the Philippines join the International Criminal Court. The Philippines signed the Rome Statute of the International Criminal Court way back in December 2000. However, past administrations (wisely, I believe) refrained from submitting it to the Senate for the latter’s concurrence, thereby effectively excluding us from the jurisdiction of the ICC.

Unfortunately, the present government seems to be intent in placing us under the authority and powers of the ICC. On the occasion of a visit a few weeks ago by Sang-Hyun Song, president of the International Criminal Court, President Noynoy Aquino was reported (in another newspaper, not BusinessWorld) to have said: "You do not even have to persuade me to join the Court. In fact, I have already sent the Rome Statute to our Senate for its concurrence." With the President, in that event, it was said, were the secretaries of the Departments of Justice and National Defense, the solicitor general, and the president’s legal team.

Whether this was done upon the urgings of some well-meaning (is there any other kind?) advocacy group or on actual, real thought through considerations is something that should be determined. Because, frankly, membership, particularly right now, in the ICC is a bad idea.

The ICC is a permanent institution, exercising jurisdiction over persons for the most serious crimes of international concern. Envisioned to operate similarly to the International Court of Justice, the court, however, exercises jurisdiction over individuals committing the crimes of genocide, aggression, serious violations of laws and customs applicable to armed conflict, crimes against humanity, and other such crimes.

The idea of an international criminal tribunal is something everybody agrees to be a good one, it’s just that nobody can conclusively say how to go about executing it properly. It must be emphasized that the Philippines is not involved in any international armed conflict and the chances of the Philippines making use of the ICC to protect its citizens is minimal. Notably, Malaysia, Indonesia, Vietnam, or China (our co-claimants to the Spratly or Kalayaan islands) or Libya, Saudi Arabia, United Arab Emirates, or Pakistan (where a lot of our OFWs are) are not parties to the ICC. This means that we can’t use the ICC to protect our soldiers defending our interests or OFW rights. In any event, there are other avenues available to the Philippines in that regard.

But the biggest problem has to do with the ICC’s jurisdiction because international criminal cases can be hurled against our police or military officers, even public officials, upon the mere instigation by any foreign or local individual. Which leads us to issues of national security and national interests. Assuming that the Philippines want to assert its rights in relation to territorial integrity, particularly in view of Mindanao, our public and military officials will now be working warily under the cloud that at any moment they could be hauled off to and imprisoned by an international court just because charges were filed by some foreigner or even by a domestic crusading lawyer out to make a name for himself.

Don’t get me wrong: I do believe that human rights in this country should be aggressively protected. I also believe that national interests should be upheld. To uphold those two concerns, at this time, is a matter I would trust fellow Filipinos (and Philippine institutions) with, who know our peculiar circumstances and interests (flawed as they may be on occasion) rather than some foreigner at The Hague. This is an aspect of us being a sovereign nation.

Besides, the ICC itself is flawed, as can be seen from the above. Cases can be filed merely from the view of political grandstanding. And there is no safeguard against the probability that prosecutions can be made against our public or military officials due to ideological or foreign-funded interests. Finally, the ICC can even override our sovereignty by claiming jurisdiction over cases that our courts are already trying under certain exceptions to the "complementarity" principle.

All in all, the ICC is a good idea. It’s just not something that the Philippines should be concerning itself with right now.


Leaders exeunt, please!

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

A friend recently went to a Makati building for a business appointment. She looked up its directory, prominently displayed at the lobby, to check the company’s floor she was supposed to go to. A guard quickly went up to her and tried to shoo her away, saying -- bizarrely -- "bawal tumingin sa directory." This made me think: is there something in our water that makes people here dumber by the minute?

This thought continues after reading two excellent books over the weekend. The first is Homobono Adaza’s Leaders, which details the presidencies of Ferdinand Marcos to Gloria Arroyo. Indubitably, there are lawyers and then there are lawyers. Mr. Adaza is clearly the latter. A fearless parliamentary warrior, he was once jailed by Marcos, then later almost singlehandedly stalled the KBL juggernaut in the Batasan during the 1986 presidential tabulations. So it is with quite an interest that I read his judgment on Corazon Aquino’s presidency:

"The Cory presidency was a mistake. We should have done our best to prevent it because Cory did not have the training, experience, knowledge and the intelligence to be President just like some others who also became President of the Philippines. But we did not know any better since we did not know the lady that well. We really did not know her at all. Only the events revealed the basis for regret."

Actually, one could substitute "Cory" with another President Aquino and the entire paragraph would still be valid. With one exception: this time, we can’t say we didn’t know any better. Inasmuch as there are lots of books demonizing Marcos, it would be but fair in a democracy to objectively examine the history of the first Aquino presidency. Adaza’s Leaders is a fine addition to excellent references such as Gleeck’s Sainthood Postponed, Arillo’s Greed and Betrayal, and San Juan’s Conspiracies & Controversies.

Mr. Adaza is a frank writer, thoughtful but aggressive. But the aggressiveness lends an energetic charm in the writing and his opinions on certain public personalities like Cecilia Muñoz Palma, Franklin Drilon, Aquilino Pimentel, or Chiz Escudero, of Ninoy Aquino cheerily giving young Salvador Laurel a piece of advice that some would say is quite Marcosian ("brod ... in politics, gentlemen finish last"), are not to be missed.

Carmen Guerrero Nakpil’s Exeunt, on the other hand, is an altogether different book. But they essentially say the same thing. The difference comes from the fact that Mr. Adaza and Ms. Nakpil are two different persons and see the world from different lenses. But the situation of the Philippines is so glaringly obvious that they can’t perhaps help having a similar view.

Surprisingly, the elegant, thoughtful, witty Exeunt closes on a shatteringly depressing note, which Ms. Nakpil’s last page invocation of hope in the divine doesn’t exactly salve. And the fact is, I totally agree with what she says:

"For many years, I have believed that we Filipinos are moving inexorably toward fragmentation, not only of Mindanao but of the entire Philippine archipelagic state. Since the ‘peace-making’ activities of the Arroyo administration, the shocking Memorandum of Agreement on Ancestral Domain for the Muslims and the promotion of federalism will very likely continue to lead us into partition, secesion or drastic breakdowns... The US will try or is trying to do here what the British did to India, a vengeful partitioning into three countries, Pakistan, Bangladesh and India. I get a creepy feeling watching US diplomats in Manila and Mindanao that they haven’t finished the dirty work they started in 1898. They’ll get us yet."

"Here at home, the rot has come from within ... People don’t read newspapers anymore, but not because only a few can afford them in this brave, new, poverty-stricken world, but because people no longer think they need what newspapers provide. Their horizons have shrunk ... Knowledge is no longer power."

However, it must be said that both books ultimately do wind up being depressing because reading them one realizes how inadequate and pathetic our leaders are, how the same insane people and families keep leading in business and politics. And the tragic stupidity of Filipinos is that they keep allowing these same people to remain in power.

When one reads back on all the instances of our leaders selling us out, the collaborators, the scandals and the corruption, the incompetence and self-serving government policies, one sees that all these were instigated by the oligarchic elite, the self-described "de buena familias." Read the newspapers and then read our history textbooks: it’s the same people and families screwing the country over and over and over again. We don’t even realize how damaging our cavalier disregard for academic or individual merit is, giving importance instead to political or social connections. Try telling kids to study and work hard from now on.

This country’s rot is right in front of us. We just refuse to see them for who they are.


Law over troubled waters

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

This will offend the emotionally inclined, but it just has to be asked: with what happened in Japan, the earthquake, and the tsunami, does this mean that we’ll stop conducting a review on the JPEPA? Because one never knows with this country, fueled as it is most of the time by sentiment or emotion. I mean, we stop corruption investigations simply because somebody committed suicide.

And as anybody intelligently working on international law would notice, there’s an unseemly tendency here to work for the applause of foreigners rather than solidifying our interests. Or to put it another way, we seem to be "more popish than the pope" in our desire to ensure that international law is complied with. Whatever that means.

A recent example is our timid (and tepid) response to China’s aggressive violation of our waters last 2 March 2011. While kudos should go to our military, particularly Lt. Gen. Juancho Sabban, for shooing away those pesky Chinese boats, the response of our government leaves a lot to be desired. As reported by another newspaper, international law professor Merlin Magallona noted that "there’s something wrong [with the government sending somebody to China to discuss the incident]." Considering that "the Philippines is the aggrieved party. It should not have sent someone [to China] to explain. It should be the Chinese that should do the explanation. So why are we sending someone to explain to Beijing?"

Indeed, it was reported that the Chinese boats brazenly moved against a Philippine ship, apparently with the intention of looking for an opportunity to ram it. Thankfully, Lt. Gen. Sabban deployed two warplanes, one an OV-10 bomber, causing the Chinese boats to retreat. All this happened near Reed Bank, around the Spratly Islands, and is clearly within Philippine territory.

The Spratly islands, it must be remembered, are rich fishing grounds and are believed to contain vast oil and gas reserves. It is also a crucial sea-lanes area important for commercial shipping. So credit indeed to Lt. Gen. Sabban, who was reported to have said: "It’s clearly our territory. If they’ll bully us, well, even children will fight back." This guy should be commended. There is still hope indeed yet for our military.

Predictably, the Chinese tried to belittle Magallona’s statement, saying that such "were at best individual opinions not representing those of the Philippine government." This was, it must be remembered, after China rudely snubbed our diplomatic protest. But Magallona, who was a former foreign affairs undersecretary, was right in saying that China did an international wrong directly against the Philippines, committing as it did a "breach of international obligation with the threat of force. When they used the threat of force on the Philippine vessel, that’s a very clear sign that there’s a breach of obligation." And he’s right in this regard whether or not he’s representing the government. The real question is: why isn’t our government thinking the same way?

Magallona is most likely referring to Article 2, paragraphs 3 and 4 of the United Nations Charter, which provides:

"The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: xxx
"3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
"4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

Now we’ve always prided ourselves on upholding international law. So it’s ridiculous to be strict with ourselves on international law but allow others to do what they want, more so if such be against our interests.

China would later declare that it "has always maintained that the related disputes should be addressed through peaceful negotiations." Yeah, right. This from a country that went hysterical over a harmless Sept. 24, 2010, joint statement between ASEAN and the US reaffirming "the importance of regional peace and stability, maritime security, unimpeded commerce, and freedom of navigation, in accordance with relevant universally agreed principles of international law, including the United Nations Convention on the Law of the Sea (UNCLOS) and other international maritime law, and the peaceful settlement of disputes." Reacting to this in their usual fashion, China bluntly declared that it "claims sovereignty over the entire sea and all the island groups within it." The Philippine episode, in fact, was followed shortly by an incident in which a Chinese helicopter harassed a Japanese ship in the East China Sea.

Which reminds me: could we please stop referring to this body of water as the "South China Sea"? Instead, let’s call it the "West Philippine Sea" or the "Philippine Sea." It’s stupid to maintain a territorial claim against the neighborhood bully while referring to the entire area under the bully’s name.


In an uncertain trade world

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

The problem with writing about trade (and I have to write about trade considering the name of this column is Trade Tripper) is that events have taken a turn for the mundanely esoteric, not to mention cynicism-inducing repetition, that it’s difficult to discuss something that is concrete, relevant, or even new. So readers will perhaps feel excused if this article provides a feeling of deja vu (didn’t I say that already?), but where we are right now is exactly where we are right now.

WTO Director-General Pascal Lamy gave a report to the General Council last Feb, 22, 2011, where he expressed his being "encouraged" by the recent talks he had with WTO senior officals regarding the state-of-play of the negotiations. However, as always, this must be tempered (or is it conditioned?) by his declaration that "a major acceleration at all levels -- multilaterally, plurilaterally, and bilaterally -- is needed." Ominously, he adds that "the window of opportunity is still there, but it is narrowing every day."

Again, the problem is: we’ve heard all this before. However, there are some distinct features present this time around that make any analysis today regarding Doha a little different than before. And it’s mostly not for the good.

This Round, clearly, has seen several deadlines missed. Some spectacularly, such as what happened in Cancun. The issue really boils down to the inability to achieve consensus on Doha’s development agenda, whereby poorer countries could acquire greater market access in the rich country markets. Unfortunately, progress in this regard comes in trickles, with discussions getting bogged down on the intricacies of tariff cuts. Though new negotiating revised drafts were announced to be submitted by April, with a full Ministerial Conference (as opposed to the "mini-Ministerials") to follow by July, nevertheless, optimism is not very high.

Aside from the General Council meeting, as well as the informal meeting at Davos, the Trade Negotiations Committee has held only one informal meeting last Feb. 2, 2011, which "reviewed and assessed developments in the Doha Development Agenda." Note that, even then, the Trade Negotiations Committee meeting actually resulted in the failure to achieve anything resembling forward moevement. While perhaps the reason could be due to global economic uncertainties, nevertheless, a significant degree of resposibilty lies with the US’ Obama administration. The US. presently seems to want it both ways: failing to show leadership in the talks by showing a pronounced lack of interest on the matter, while at the same time appealing to the sensibilities of poorer developing countries by constantly submitting texts that apparently provide greater market accesss (as well as special and differential treatment) for the latter. Which would be fine but considering what is needed at this stage is the convergence of the texts, the only tangible result of all those recent US efforts is to instead slow down the talks even more.

This has actually emboldened some commentators to come out with some eccentric, albeit old, arguments. For instance, Daniel Altman of Newsweek gleefully calls for "good riddance" to the WTO, saying that "trade negotiations would actually go much further if the WTO simply closed down its talks altogether." His argument essentially is that "this is where the future of free trade lies: in pragmatic regional deals, not utopian global ones ....The majority of nations can simply leave the obstructionists behind and move forward with regional trading partners. Eventually, most of the world’s trading nations will arrange themselves into just a few big blocs."

All this looks good, perhaps even rational. But there are flaws to this reasoning. And definitely, for a developing country like the Philippines, it should be disconcerting. The argument above is designed to benefit developed countries. For developing countries, with its limited resources, the reverse is true. For the simple reason that free trade agreements are not free.

Their very nature and number provides for an increasingly complex international trading system. Considering there have been concerns raised regarding the capacity of the Philippines to keep up with its multilateral trading commitments, this obviously would be multiplied in view of the inevitable proliferation of FTAs should the WTO indeed be waylaid. Among areas of concern would be the varied ROOs, dispute settlement jurisdictions, ambiguous customs procedures, SPS and TBT measures, and -- perhaps -- the issue of smuggling. That’s why our low utilization rate is quite understandable. After almost 20 years, our AFTA utilization remains at around 20%.

Either way, the challenges remain high. We’re either faced with a full-blown Ministerial that bring an enduring set of agreements imposing a fresh set of demands on the country. Or we could end up with an interweaving set of free trade agreements that could push our government bureaucracy and businesses to the limit. Which brings us back again to this one question: do we have the officials with the capabilities and expertise to meet these challenges? The answer might come sooner than we know.


Foreign relations as domestic policy

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

Looking back at all those self-congratulatory speeches on freedom and democracy during the EDSA 25th anniversary party, I got to thinking about the fact that I’ve been brought up as a child and also taught by the schools I attended to always "mean what I say and say what I mean." The point is to find something to truly believe in and to stand up for those beliefs. It’s a lesson, I guess, that a significant part of the country (or at least our public officials) should start re-learning.

Because despite all that’s said and done after EDSA, how sincere are we really in protecting and ensuring respect for our beliefs? Surely, we believe in freedom and democracy. But do we really know what that means and, more importantly, understand the price needed to be paid for it? Our supposed beliefs are actually concretely laid out in our Constitution. Article II (on State principles and policies) would declare, amongst others:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. xxx The Philippines renounces war as an instrument of national policy xxx and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. xxx the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. xxx The State shall promote social justice in all phases of national development. xxx The State values the dignity of every human person and guarantees full respect for human rvights."

To the above must be added the provisions of the Bill of Rights, which include the rights to life, liberty and property, of equality and fair hearing, freedom of expression, of religion, the right to travel, etc. All these embody (or are supposed to embody) the beliefs and ideals of our people, expressed as they did when they exercised their sovereign rights. These provisions declare our idea of who we are as a people and should guide our policies and actions as a country. So how come our recent policy measures or government actions seem to be quite disconnected to the principles laid out in the Constitution?

In particular, we seem incredibly eager or happy to look the other way whenever China is concerned. Our large neighbor should be a cause of concern for everybody in the region, including -- obviously -- the Philippines, as illustrated by the Wall Street Journal ("China’s aggressive new diplomacy," 1 Oct. 1, 2010):

"The Senkaku clash is of a piece with other fishy incidents. Last year, Chinese fishing boats harassed a U.S. Navy ship in waters that are international by everyone’s definition except that of Beijing, which claims the South China Sea as its ‘historical waters’. More recently, fleets of Chinese fishing ships illegally entered Indonesian waters in May and June, leading to a stand-off with Indonesian patrol craft that ended when one of the Chinese vessels aimed a large-caliber gun at the Indonesians. xxx China’s new assertiveness is more than a matter of provocation and petulance. It’s also a new state of mind. ... when Hillary Clinton took the side of Vietnam in mildly pushing back against China’s claims to th South China Sea, Foreign Minister Yang Jiechi could barely contain his anger. Calling the Secretary of State’s remarks ‘an attack on China,’ he lectured that ‘China is a big country and other countries are small countries, and that’s just a fact.’"

More directly related to the Philippines was the incident relating to the Sept. 24, 2010, joint statement between ASEAN and the US reaffirming "the importance of regional peace and stability, maritime security, unimpeded commerce, and freedom of navigation, in accordance with relevant universally agreed principles of international law, including the United Nations Convention on the Law of the Sea (UNCLOS) and other international maritime law, and the peaceful settlement of disputes." What could possible be wrong with such a logical to the point of mundane statement? Nothing. But, as reported by the Canadian Press, China reacted, again predictably hysterically, that "China claims sovereignty over the entire sea and all the island groups within it."

And, of course, there was that Nobel Peace Prize award to Liu Xiaobo, which the country unfortunately failed to attend for one reason or another. The fact that China ranted and raved for other countries to boycott the event must have been mere coincidence. But the effect is the same.

We need to take a more principled and courageous stand in the way we issue policies, as well as in dealing with other countries. Actual naiveté is to believe we can profit if we compromise on our values. We should be sophisticated enough to push for our democratic and human rights ideals when negotiating or entering into trade agreements. Otherwise, trust me, the other countries will look down on us as a pathetic people that can easily be bought off.