Trade disputes: asymmetry and policy mechanism

. . . is the topic of my latest Trade Tripper column in this Friday-Saturday issue of BusinessWorld. Excerpts:

"The analogy necessarily made with regard to the settlement of trade disputes rests on certain levels, whether it be on the formative, normative, or substantive sense. The toolbox analogy is commonly employed, particularly when defining the settlement of disputes as an allocation of certain rights between State parties to the dispute.

Nevertheless, the analogy, while presenting in a certain sense the diversity of available mechanisms within which such rights, liabilities, and obligations are to be recognized, all of which it must be considered still fall within the parameters and restrictions laid down by general conceptions of what we consider to be sovereignty in its internal and external sense."

Cars, plans, and bailouts

. . . is the topic of my latest Trade Tripper column in this Friday-Saturday issue of BusinessWorld. Excerpts:

"However, the biggest difficulty I have with the bailout is that it serves as a horrendous justification for underperforming companies in poor countries like the Philippines. If the US auto bailout is given, watch out for our own local industries to ask for their own handouts from an already admittedly cash-starved government. And the problem with any government support here is the lack of monitoring systems involved, i.e., where will the money actually go? This is not the time to transfer taxes paid by poorer Filipinos and put them in the hands of wealthy but mediocre company owners.

The better thing to do is not to save the companies and just let them ride it out on their own. Either they innovate, improve, or go bankrupt. Definitely we have to care for the workers that will be displaced but not the wealthy that have mismanaged and let their companies go uncompetitive."

Economics and national interest

. . . is the topic of my latest Trade Tripper column in this Friday-Saturday issue of BusinessWorld. Excerpt:

"I am a believer in liberalized trade and open economies. I believe in the benefit it brings to our people. I believe that we are a better country because of globalization and trade. However, the DoF actions exemplify exactly how erroneous, how wrong, our participation is in the global economy. For the system to work, no country should play the FOOL and each country should strive to protect its own interests, its own sovereign national interest. Our government’s duty is not to watch out for WTO compliance, that’s the job of other countries. If they say we’re not WTO compliant they have the burden of proving it. Our own government should not be acting as lawyers for other countries (although I must say that the lack of competent international lawyers may also have a hand in the present system or government mentality which obviously needs improving). The other countries, such as the US and France, will not be offended if we do this. In fact they’ll respect us even more because they themselves are always acting for their own country’s interests. Let us care for our own, our fellow Filipinos, because nobody else will."

The MOA and of good intentions

. . . is the topic of my latest Trade Tripper column in this Friday-Saturday issue of BusinessWorld.

It is said that the road to hell is paved with good intentions. In the Philippines, it’s not only paved, it’s furnished, lighted, and gilded with it. A good example is the Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace. It’s unbelievable how such an agreement could have been entered into by the government, considering its provisions’ sheer disregard for the interests of the Republic. This article will not dwell on the Constitutional process aspects of the MOA and instead focus on the international law issues. Peace is, of course, always something to be desired but if there is one thing that we Filipinos should know by now is that peace at any price always ends up costing way too high.

The MOA essentially begins with acknowledgments from the government of the Bangsamoro rights. Then it goes on to identify the Bangsamoro as the natives, Muslim or not, of Mindanao, including Palawan and Sulu at the time of colonization, their descendants, whether mixed or of full blood, and their spouses. The MOA then designates the territory of the Bangsamoro as the land – as well as waters, airspace, and atmospheric space – embracing the Mindanao-Sulu-Palawan geographic region. The Bangsamoro Juridical Entity is mandated to have jurisdiction over those areas, including “territorial waters”, as well as the use of resources. Finally, the BJE is free to enter into any economic cooperation and trade relations with foreign countries, establish trade missions in other countries, and enter into environmental treaties.

With that, our government almost got away with allowing a group of people to dismember our Republic and to have another State carved out away from us. For as the Supreme Court rightly caught on, the government incredibly gave the MILF all the requisites of a State as provided under the 1933 Montevideo Convention: people, territory, government, and the capacity to enter into relations with other States. How anybody could miss this point, specially those negotiating on behalf of the interests of our Republic, is beyond me.

That this is not accidental is shown by the fact that our government also conceded to the BJE the application of the status of “associative State”, which the Supreme Court again (thank God) rightly caught as being wholly inappropriate because such concept indicates the existence of an entity that is on its way of being a separate State. A State, it must be emphasized, that will get portions of OUR territory, OUR resources, and OUR people.

That this was deliberate is shown from the fact that our own government insisted in applying the concept of self-determination to the Moros, contrary to the clear and overwhelming declaration by international law that ethnic, religious, or cultural groups have no rights of self-determination. Again, the Supreme Court was quick to point out this quite obvious fact of which only our government seems oblivious to.

Granted, there is the UN General Assembly Resolution 61/295 which allowed indigenous people the right to “internal” self-determination, which is more limited in scope, allowing merely for their economic, social, and cultural development (along with a certain degree of autonomy) but a far cry from allowing them independent status or statehood. It must be emphasized that this Resolution was signed September of last year, with 143 countries voting in favor (the Philippines included), and Australia, Canada, New Zealand, and the US against. This is a brazen act of incredible negligence to protect the interests of our Republic. There were ongoing negotiations at that time with the Moros and our government thought nothing about signing a Resolution that essentially agreed to a point demanded by them? Eh ano ngayon kung 142 countries pumirma doon? We had the option of not signing it, considering the ongoing negotiations with the MILF. Porque may international agreement pirma agad tayo para makisama lang sa ibang bansa? Ano ba talaga trabaho nila, magpasikat sa cocktail parties sa diplomatic circuit at magpakitang gilas sa Ingles, o ilaban ang kapakanan ng bayan?

The problem is that international law works in a manner quite different from that of a local or “municipal law”. If our government interprets international law in a certain way, that interpretation is binding to a certain degree on it. For the government to interpret international law in a manner conceding statehood to the Moros is an ignominy. To conduct the negotiations substantially from the perspective of international law and not Philippine law (the Constitution wasn’t even mentioned in the MOA) is unbelievable. Even though the Supreme Court did render the MOA unconstitutional, nevertheless, this government just made it tremendously more difficult to negotiate in the future with the MILF in a manner that will protect our Republic’s interests.

Our officials have one duty, particularly in matters of international law and relations: uphold Philippine interests. If they can’t grasp that, they don’t deserve – they are a shame to – their office.

Defending the free market

... is the topic of my latest Trade Tripper column in this Friday-Saturday issue of BusinessWorld. Excerpts:

"Not many people now are willing to defend the free market and even those I thought who would come out in its defense (as they were such vocal advocates in better times) are all suddenly silent. If they won’t defend it, then I will: the free market is the best system we have and we should ensure that we do not revert to a protectionist, closed economy mind-set.

To judge the global free market as defective and should be done away with it due to the events happening in Wall Street is as illogical as saying that the Catholic religion should be terminated because of a few pedophile priests. As Churchill would say, democracy may not be perfect, but it’s the best that we have. And the free market system is the best that we have, with no alternative able to credibly assert itself even in these troubled times."

Cuisine that reigns supreme

. . . is the topic of my latest Trade Tripper column in this Friday-Saturday issue. Excerpt:

"There are also statements that Filipino food is too salty or too fatty or too whatever. These conveniently ignore the fact that China must have one of the highest diabetes or heart disease rates, the French have cirrhosis, or the Americans have an obesity problem, and that Filipinos are still among the happiest people in the world.

I can’t even understand the giggly adoration some of our countrymen have on foreign cuisine. Soufflé? It’s airy mamon. Pot au feu? It’s beef nilaga. Ratatoulie is pinakbet. A daube is kaldereta and thom yan is sinigang and Hainanese chicken rice is tinola. Obviously there are differences, but food is food and the variations come due to the use of locally available ingredients. It must be noted that Filipino food generally doesn’t resort to heavy spices or sauces for the simple reason that, unlike other countries, our ingredients come fresh and doesn’t need any flavor disguises. After all, the initial value of spices and smoking and sauces was to hide the taste of food that had already gone a bit bad. We had no need for such trickery because we’ve always had relatively an abundant and readily available supply of food."

Of the GRP-MILF MOA

The news most discussed right now, of course, is of the GRP-MILF Memorandum of Agreement on Ancestral Domain. The essential purpose of the MOA is the amendment of the Organic Act establishing the Autonomous Region in Muslim Mindanao. The main problem with this agreement, like the JPEPA, is the secrecy within which it was negotiated. As with anything unknown or unfamiliar, it has spawned numerous fears ranging from loss of national territory to speculations that it may be used to extend certain term limits. This article will focus on international law principles, particularly those relating to the proposed expansion of territory for the Bangsamoro entity that hopefully could be of some use in framing within the proper context the inevitable (but welcome) public debate on the matter.

In this regard, note must be made of the preambular words of our constitution (“conserve and develop our national patrimony”), which is then to be read within the context of the definition of national territory found in Article I. Article XII, Section 2, is also relevant in that “with the exception of agricultural lands, all other natural resources shall not be alienated” but with the exception that “Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.”

The thrust of all the foregoing is to maintain stability and unity of the Filipino way of life, be it Muslim or Christian, and this includes maintaining the integrity of our national territory. In this context, note that the presidential oath contains the mandate to preserve and defend the Constitution and execute our laws. The significance of all this is highlighted by the fact that a violation of any of the foregoing could be considered an impeachable offense.

Another thing that must be emphasized, particularly when read in the context of news that flags of independence have been waived by the MILF, is that there IS NO JUSTIFICATION UNDER INTERNATIONAL LAW FOR THE CREATION OF A SEPARATE LEGAL ENTITY. What is really disturbing here is the impression circulated by some parties that the right to “self-determination” could serve as the basis for creating (or eventually creating) such a separate entity and that by doing so we are being a “good international citizen” complying with “modern interpretations” of international law. This is complete crap. If a separate Moro republic is created, it is simply because we allowed it and recognized it for some inexplicable reason. There is simply no international law that requires or compels the Philippines to agree to a separate entity carved from its national territory.

Incidentally, due to the nature of international law, I urge everybody to take care in the use of words and avoid terms like “war” (admittedly an outmoded concept), “armed conflict”, “rebellion”, “belligerency”, and “self-determination”, or employ any action (like giving the appearance of State to State discussions) that even hints at the possibility that the situation in the South is more than a mere internal or domestic matter for which only domestic laws are applicable and the constitution is paramount.

In any event, as I wrote previously, the right to self-determination applies only with regard to colonial peoples. It is essentially a right against colonialism and foreign military occupation. IT DOES NOT GIVE LICENSE TO SECESSSION. It is well worth reiterating, again and again if need be, that the right to self-determination does not allow a minority group to secede and become an independent State.

This right to self-determination could be found in the United Nations Charter, the two 1966 Covenants of Human Rights, several General Assembly Resolutions, such as GAR 2625, as well as GAR 1514 of 1960 (or The Declaration on the Granting of Independence to Colonial Territories and Peoples). It must be emphasized that the latter Resolution pointedly states: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” Indeed, insofar as cultural, religious or ethnic minorities are concerned, no general rights under the ambit of self-determination are actually applicable to them. International law justly recognizes (even if our government doesn’t) that the demands of political stability and territorial integrity of States are simply too important.

The maintenance, therefore, of the Philippine’s territorial integrity takes priority over any right, whether it be collective or individual, including those claimed under self-determination. As succinctly put by former UN Secretary General U Thant: “The United Nations has never accepted and does not accept and I do not believe it will ever accept the principle of secession of a part of a Member State.”

We have to remember that so many of our forefathers sacrificed their lives just so that every inch of this land will be ours. Everybody wants peace but for the Philippines in this instance the price is just too high to pay.