No tango in Belgium and lessons for the Philippines

was my Trade Tripper column in the 1-2 April 2016 issue of BusinessWorld:

Perhaps what’s really tragic about the recent slaughter in Brussels is the fleeting idea that it could have been avoided. That the Belgian police could have previously arrested one of the suicide bombers, that they were aware of the terrorism records of the other two. That there should have been no 35 deaths to mourn, and more than 300 injured to console. But that is, indubitably, all hindsight.

For the Philippines, blithely shuffling its way to being a terrorist hotbed, there are lessons shrieking to be learned. For one, it is the importance of having the determination to deny the demands of one group if such contradicts the fundamental values and principles of the country.

And, like Belgium, a significant factor is territory.

As discussed by Jeff Jacoby (“Why there are Muslim ghettos in Belgium, but not in the US”, March 2016), “Last November’s horrific slaughter in Paris was masterminded by a Belgian radical, Abdelhamid Abaaoud, and at least four of the men who carried out those attacks were from the Brussels district of Molenbeek.”

Indeed, “for Islamist imams and terrorist ringleaders, such neighborhoods -- heavily Muslim, densely populated, with high unemployment and crime rates -- have proved fertile territory for recruiting violent jihadists.”

“Molenbeek”, according to Feargus O’Sullivan (“How a Brussels Neighborhood Became a Breeding Ground for Terror”, November 2015), “may be a new name for the international media, but the inner-city neighborhood has been linked to a string of terror attacks dating back years.”

Put another way: radical Islam’s internal logic, which is to wage war against and eliminate a democratic way of life founded on individual freedoms, directs isolation for its adherents rather than opportunities for assimilation.

This should commonsensically lead us to questioning the propriety of the Comprehensive Agreement on the Bangsamoro, of which last Easter was the second anniversary of its signing.

As this column kept pointing out: for two years now, with the tacit agreement of this government, we have in de facto existence another State carved out of a territory of the Philippines. And an entity that surely could pose serious security problems for the country.

Yes, as Jacoby is quick to clarify, it is true that “Muslim communities are not inherently predisposed to violence” and that there is a far larger -- and peaceful -- Muslim community in the United States.

But the US has been quite successful in assimilating not only Muslims but most other migrants into mainstream society. Again, Jacoby: “There are no Muslim ghettoes here like those in Molenbeek or the Paris suburbs, where authorities turn a blind eye to antisocial behavior and aggressive incitement by radicals preaching jihad.” Instead, US Muslims’ participation “in various everyday American activities -- from following local sports teams to watching entertainment TV -- are similar to those of the American public generally. Half of all Muslim immigrants display the US flag at home, in the office, or on their car.”

In short, political correctness (so far) has not undermined the equal application of the rule of law in the US.

And the traditional values (not the vices) exhibited by mainstream Americans have proven attractive enough for other migrants to generally feel welcome and join freely.

The difference in policy and attitude -- and hence, results -- between the US and the Philippines could not be more obvious. Our country bizarrely adopted a “historical baggage” mentality that resulted in a guilt-ridden, appeasement policy direction for the Philippines. This must stop.

Finally, we must re-visit the efficacy of our security apparatus.

Or, to be precise, we should stop the inane (and expensively futile) delusion of matching militarily whatever hostile State there may be and instead -- for now -- focus on eliminating threats of an internal or asymmetric nature.

We must set aside progressive political correctness, confidently assert our sovereignty, and better equip our intelligence services in securing our borders from smuggled goods or individuals. The government itself admitted that there are more than a million undocumented or illegal aliens freely lurking around the country.

We must also have an effective surveillance program on communities that potentially serve as breeding grounds or shelter for Islamic terrorists.

Such security measures are not only constitutionally proper. It is actually the constitutional duty of government to do so.

But inevitably and unfortunately, one suspects the capability of our intelligence services when the intelligence fund of the Office of the President (P500 million) is ridiculously far bigger than that of the National Intelligence Coordinating Agency (in 2015, somewhere around P21 million).

In fact, the OP’s intelligence fund is bigger even than of the Armed Forces of the Philippines (P270 million) or the Philippine National Police (a little over P300 million).

Why would the President need such humongous intelligence funds? Why does he even have intelligence funds? Can’t he rely on the information provided by intelligence professionals doing their lawful duty?

Because, ultimately, the lesson of Belgium is this: politics should never get in the way of combatting terror.


International law cannot say who our president should be

was my Trade Tripper column in the 18-19 March 2016 issue of BusinessWorld:

Much talk has been made in Poe-Lamanzares vs Comelec of international law providing a basis for Senator Grace Poe’s Filipino citizenship. Unfortunately, such are either misleading, if not downright wrong. This article isn’t so much on the case but on the misconceptions people have with regard to international law.

First off is the need to understand that international law, like any norm, is usually the product of a political process. In that sense, international law, all the more international human rights law, is political.

As example, the United Nations Committee on the Elimination of Discrimination Against Women (which oversees the Convention on the Elimination of All Forms of Discrimination Against Women) has proven to be controversial for promoting, as it does, Western-style feminism. The Convention itself, implemented under the guise of protecting the rights of women, has been viewed inimical to the cultural self-determination of States.

And perhaps because it knows several of its advocacies are unacceptable to many countries, human rights activists picked on the tactic of preaching that international human rights laws are sui generis. But sui generis according to whom? Their fellow human rights activists?

That’s why London School of Economic’s Susan Marks (“Human Rights Myths”) points to the fact that the universality of human rights shouldn’t be readily presumed, considering its relative novelty, and that international human rights law, the bulk of which are either ambiguously crafted or in the nature of “soft law,” should not be naively treated as being above politics because it certainly isn’t. And a State would be foolish to indiscriminately bind itself to such.

Another thing about international law is that a State’s obligation to it goes only so far as to the treaties it entered into and, if so, what exactly is written in such treaty. No more, no less.

And there’s nothing in the whole range of international law treaties right now, whether the Philippines is a signatory or not, from the “UN Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention Concerning Discrimination in Respect of Employment and Occupation,” etc., etc., that actually says foundlings should be considered “natural born citizens” rather than merely “citizens.”

Incidentally, the argument that RA’s 8043 and 8552 bolster the contention that foundlings are “natural born citizens” because any act done to secure the necessary “foundling certificate,” which leads to citizenship, was done by the government authorities and not the foundling herself is a fallacy of logic chopping or trivial objections.

What does it matter if the act was not done directly by the foundling but by another when such act was clearly on behalf of the foundling?

That, by the way, is different from merely recording a baby’s birth because the “process” (the word used by the Supreme Court, implying a series of acts) in the foundling’s case is necessary to determine if the child is indeed a foundling so that a declaration on citizenship could thereafter be made. Those, by all common sense, are acts to “acquire or perfect citizenship.”

Going back to international law, it is possible that without signing on to a treaty that the Philippines is bound by international customary law. But proof must be presented that there is such a custom, which requires presentation of facts (not surmises, conjectures, or motherhood statements) regarding the presence of “State practice” and “opinio juris.” This is one of the more significant lessons learned from “Vinuya vs Romulo” (GR No. 162230).

In any event, the fact still remains that there is no customary international law (as well as “general principles of law”), general or regional, that specifically says foundlings should be considered natural born citizens.

Which leads to this final point: even if there is a treaty, custom, or general principle out there (just for the sake of argument) actually specifically providing that foundlings are indeed natural born citizens of the State where found, such does not trump or supersede the Constitution.

To put it more clearly: within our jurisdiction, our Constitution is supreme and reigns over even that of international law.

In fact, the job of the Supreme Court includes determining whether an international law (particularly treaties) is in line with our Constitution. If indeed found constitutional, such will merely be considered of the level of legislative enactments.

So any international law that contradicts our Constitution’s demand that our president be “a natural born citizen of the Philippines” and resident thereof “for at least ten years immediately preceding such election,” with natural born citizen defined as “citizens of the Philippines from birth without having to perform an act to acquire or perfect their Philippine citizenship” must be disregarded and set aside.

Considering this country’s past of being dictated upon by foreign countries or institutions, let not its choice of future president be one as well.

The West Philippine Sea: pride and consequence

was my Trade Tripper column in the 11-12 March 2016 issue of BusinessWorld:

Just because one can doesn’t mean one should. And just because one has the right doesn’t mean one is always correct to act on that right. Something to think about considering that the international arbitral tribunal deciding the Philippine case against China on the West Philippine Sea may release its decision this April or May. Leading to another thing to ponder on and that is: be careful of what you wish for.

Right now, we really need to demand knowing from the government the benefits it expected from this case vis-à-vis the risks that will certainly arise. Note that due to the technicalities inherent in the UN Convention on the Law of the Sea, the claim filed by the Philippines never involved asking the tribunal for a determination of who owns what.

Rather, the case is merely about the Hague-based arbitrators declaring whether certain areas qualify (or not) under specific concepts provided by the law of the sea. Doubtless, the findings will have consequences but consequences is exactly the point of this article.

Precisely being asked of the tribunal are the following: What is this “9-dash line” the Chinese keep citing as the basis for their maritime claims? Because it’s a thing not found in international law and the Chinese themselves have not bothered to define it as well.

The other questions raised can be grouped as a set of inquiries regarding the character of certain land formations scattered over the disputed areas. Specifically, these are Mischief Reef, McKennan Reef, Gavin Reef, Subi Reef, Scarborough Shoal, Johnson South Reef, Cuarteron Reef, and Fiery Cross Reef.

The first four are being claimed by the Chinese as rocks, while the Philippines is claiming they are merely “low tide elevations.” The significance of this (as per provisions Article 121 of the UNCLOS and later clarified and confirmed by the International Court of Justice in Nicaragua vs Columbia, 2012) is that land features not visible at high tide (hence, called “low tide elevations”) cannot be entitled to waters that an island or rock has under international law.

As for the last four, the Chinese claim the features are “islands,” while the Philippines say they are merely “rocks.” Islands are entitled to their own 12 nautical mile territorial sea, a contiguous zone of 24 nautical miles (from the low water mark), an exclusive economic zone, and a continental shelf. Rocks, on the other hand, merely have a territorial sea and contiguous zone.

With the foregoing, one can now understand the reason for the Chinese frenzy of construction activities in the disputed areas: apparently, they are rushing to pour concrete and other materials on the LTE’s to convert them into rocks and to make the rocks into islands.

Admittedly, this appears ridiculous, legally speaking, when one sees the UNCLOS clearly providing that an “island is a naturally formed area of land, surrounded by water, which is above water at high tide.” The crucial word here is “natural”. As for rocks, though the UNCLOS is silent regarding it, international law commentators are fairly unanimous in saying that the natural formation requirement should also apply to rocks.

Which leads us to the crux of the issue: a tribunal win for the Philippines is -- I dare say -- a foregone conclusion. There is no doubt that the country’s legal position is strong. The real question we should be asking is how do we handle that victory?

From there, one sees the practical rationale behind China’s provocative activities, obviously designed to cushion the impact of the loss that will inevitably be dealt them by the international tribunal.

As for the Philippines, what next? Shame China -- a permanent member of the UN Security Council -- into giving up what it now possesses? Such is a dangerously naive tactic against a country that just admitted it will undergo economic insecurities this 2016: lowering its growth forecasts to 6.5% amidst weakened trade, and cuts in demand for its steel and coal industries.

The theory bandied about in media is that a Philippine win will embolden other countries to stand up against China. This thinking is flawed on three counts: it assumes other countries will actually do so (see Thailand’s holding joint military exercises with China last year), second, even if they do, such stance will likely not follow the Philippine model of closed-minded confrontation (see Vietnam’s quite sophisticated maneuverings) and, finally, assuming the other countries do speak up against China, such does not automatically mean it will redound to the benefit of the Philippines.

In the end, this is what it all boils down to: the Chinese know what they want and the US does too, only too well. And the Americans and Chinese certainly know what they’re going to do as far as that is concerned. The question is: do we?

Because loudly throwing the dice and then hope the other countries come to our rescue cannot seriously be considered a foreign policy.

War is what we make of it

my Trade Tripper column in the 4-5 March 2016 issue of BusinessWorld:

Something that needs to be said repeatedly, hoping the next president of the Republic takes it to heart: “The prime duty of the Government is to serve and protect the people.” Simply put, to defend the State is his main job. If he fails in that, nothing else matters. Any talk of social justice is useless if the Philippines can’t protect and keep its people and territory from both internal and external threats.

Unfortunately, defense has been woefully neglected the past few years. The 2015 budget’s 4.4% for the military is scandalous. This all the more when one considers the territorial dangers, conventional and asymmetrical, faced by the country. And while the 2016 budget’s P117.521 billion is an improvement, in relative terms it still falls behind in priority compared to Education, Public Works, Local Government, and Health. Defense and education spending should always be at the top.

The next administration is strongly encouraged to commit thoroughly to reviving the Self-Reliant Defense Posture of the Marcos years (as well as Ramos’), implemented through Presidential Decree 415, amended by PD 1081.

The SRDP program, “initiated in 1974, took the development of a domestic defense industry as its objective. Defense officials contracted SRDP projects with the government arsenal and local manufacturers, encouraging the use of indigenous raw materials and production capacity. Projects included domestic production of small arms, radios, and assorted ammunition. One of the most significant SRDP operations was the manufacture of the M-16A1 rifle under license from Colt Industries, an American company. According to a 1988 statement by the Philippine armed forces chief of staff, the SRDP not only increased Philippine self-reliance, but also cut costs, provided jobs, and saved much-needed foreign-exchange funds.” (see photius.com, citing the Library of Congress Country Studies and CIA World Factbook)

The policy is practically a neglected tradition for the country. Danilo Lazo and Juanita Mercader (“The AFP Self-Reliant Defense Posture (SRDP) Program: Leading The Nation Towards A New Direction”; Asian Studies, 1989) point to traces of the self-reliant defense posture in “Commonwealth Act No. 138, otherwise known as the Flag Law,” requiring preference for locally manufactured items in government procurement.

Furthermore, considering the much talked about Filipino talent in computer programming, then the same should be harnessed for the country’s defense. Interestingly enough, Filipino hackers have been reportedly retaliating, with some degree of effectiveness, against countries hostile to the Philippines. Defense planning from now on should include creating an actual contingent within the AFP whose sole purpose is to defend the country from cyber attacks.

The foregoing has to be coupled with upgrading our reserve corps, including the revival of compulsory military service by making such a requirement for all graduating college students. With 70% of the population under 30 years of age, this would definitely help in our national development. Note that under the Constitution, “citizens may be required, under conditions provided by law, to render personal military or civil service.”

Finally, we must develop a comprehensive national defense strategy. Because, believe it or not, we don’t have one.

That fact also probably explains our somewhat puzzling recent buying pattern of foreign military hardware. The purchase of sophisticated aircraft is actually futile because warfare essentially boils down to mathematics, i.e., who has more of what. And as far as external threats go, that is a contest we can’t win. The only people benefiting from our recent spending habits are Western defense companies able to offload their products to poor countries like us.

No. If we do buy weaponry from abroad, then the same should be done solely with the focus of neutralizing efficiently any internal threat at hand (including being able to guard against smuggling and fisheries poaching). For such purposes, hi-tech (thus expensive) weaponry is not necessary. Functioning workhorse type aircraft, speedboats, and land-armored vehicles should be enough.

For external threats, it is simply non-sensical to even try matching the military resources of those countries challenging the Philippines.

But what the Philippines does have are thousands of islands, an abundance of forests, caves, and miles and miles of confusing streets.

At this stage of our country’s development we can’t fight a war hoping to beat the other country. This includes not making our defense strategy hinge on the assistance of allies. We shouldn’t waste spending and the developing of our plans on such thinking.

What we can do is build our national defense strategy around the idea of attrition and guerilla warfare: to make going to war against the Philippines an island per island matter, complicated, never-ending, so costly in terms of human and material resources that it would practically outweigh any benefit -- that any country would have to think twice if it’s worth attacking us at all.

In the end, diplomacy is always the best option for everyone. And our national defense strategy should be built around the idea that countries are better off talking to us rather than shooting us.

Hold the TPP? What is this ISDS?

my Trade Tripper column in the 26-27 February 2016 issue of BusinessWorld:

Lost amidst in what essentially was the Manny Pacquiao non-issue and the death of legal giant Antonin Scalia, the Trans-Pacific Partnership (TPP) was signed almost without fanfare last Feb. 4 in New Zealand. With Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam, it’s a humongous agreement representing 10% of the world’s population, covering 40% of global GDP, and 13% of international trade.

And yet, the TPP is confronted with profound obstacles.

Current internal politics from both the US (key Republican and Democratic leaders, of the latter notably Hillary Clinton, are against it) and Japan (its TPP ratification momentum encountering a bump after the resignation of economic minister Akira Amari), and the new Canadian government’s seeming lukewarmness towards the deal, make the odds of the TPP coming into effect this year miniscule.

One reason for the continued reluctance on the TPP has to do with the Investor-State Dispute Settlement system (or the ISDS). Though a set of provisions that are present in other trade deals, most notably the North American Free Trade Agreement (NAFTA), the TPP’s ISDS has set off alarm bells due to its reach and possible consequences to a country’s sovereignty.

The US Trade Representative Office described the TPP’s ISDS as that which “deters foreign governments from imposing discriminatory or abusive requirements on American investors, and protects the right to regulate in the public interest.”

Such sounds neutral but note that it works both ways.

Essentially, the issue is this: if a government decides, for example, to enact a measure designed for the public interest (i.e., the environment, health, morals, etc.), a foreign investor disagreeing with that local law can sue that government under the provisions of the TPP before an international TPP arbitral tribunal, and have such law overturned and compensation paid.

Columbia University’s Lise Johnson, Lisa Sachs, and Jeffrey Sachs (“The real danger in TPP,” February 2016) put it this way: the “investor-state dispute settlement (ISDS) gives multinational companies outlandish sway over regulatory policies, including environmental protection.”

With the ISDS, “the arbitrators have the authority to review the President’s decision, give their own opinion on what the appropriate course of conduct should have been, and order the US government to compensate the investor if they believe a different decision should have been made or if they disagree with the policy rationale for the decision.”

Note that what Johnson, Sachs, and Sachs say is applicable to all TPP members.

If the Philippines for example, is a member of the TPP then it’s possible that while our “citizens must play by the rules established by Congress,” with limited rights to sue our government, “foreign companies don’t have to follow those rules” because they are afforded different rights under the TPP.

Related to the foregoing is the fact that, under the TPP, foreign companies can sue a government on the ground that the latter violated the “minimum standard of treatment.” This is the standard applied to the “treatment of aliens” to be “afforded to covered investments.” This includes situations relating to “criminal, civil or administrative adjudicatory proceedings” and “the level of police protection required under customary international law.”

Now, “minimum standard of treatment” is lackadaisically defined in the TPP as that which is “in accordance with ‘Customary International Law,’” which is then further unhelpfully described as “a general and consistent practice of States that they follow from a sense of legal obligation. The customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the investments of aliens.”

The width of its coverage but the ambiguity of its content should be obvious. And in terms of managing compliance, that there will be differences of interpretation as to what is the applicable minimum standard between a developed country and a developing country (such as the Philippines) is reasonably expected.

Finally, there is the issue regarding “technology transfers.”

For a developing country like the Philippines, which is supposed to permit the entry of foreign goods and services that will undoubtedly compete with domestic products, the possibility of attaining technology transfer is a good motivation for agreeing to such.

That is why even under the WTO’s Trade-Related Investment Measures (TRIMs), government mandated technology transfers were not prohibited. And in the specific instances where it was, like the membership condition imposed on China for entry into the WTO, such were not strictly enforced.

The TPP, on the other hand, frowns explicitly against mandatory technology transfers: “Article 9.9 -- No Party shall, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party or of a non-Party in its territory, impose or enforce any requirement, or enforce any commitment or undertaking: x x x to transfer a particular technology, a production process or other proprietary knowledge to a person in its territory.”

Clearly, a more profoundly comprehensive study has to be done regarding the TPP.