Just some quick notes on the Scarborough issue:
> Harry Roque, in his column today in Manila Standard and in an earlier article in another newspaper, stated that we can pursue our claim over the Scarborough Shoals before the ITLOS even without China's consent. He essentially relied on a reading of the the so-called "mandatory" or "compulsory" modes of dispute procedure in the UNCLOS. But his point is a bit eccentric, and needs clearer, further thought and examination.
The compulsory modes of dispute settlement is a misleading term actually and has confused a lot of people. It is compulsory because it refers a dispute to arbitration as the mandatory mode of settling a dispute whenever the parties have not come to an agreement as to what mode they have selected (the choices are the ICJ, ITLOS, or arbitration). But this presupposes that the parties already agreed to bring the matter to dispute settlement. Because despite the words "compulsory" or "mandatory", the UNCLOS dispute procedure is still consensual in nature. As we know already, the Chinese has refused our invitation to bring the matter to dispute settlement under UNCLOS rules.
> Furthermore, China has made a clear declaration of their not being under the jurisdiction of ITLOS except upon clear written consent. This declaration was made under the auspices of Art. 298 of the UNCLOS: "The Government of the People's Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention."
> Don't get me wrong: there's nothing I'd like better than to thrash China before the ICJ or ITLOS but that's international law. The reason why we neeed China's consent before we haul them off to the international courts is because of this concept that activists bandy about during rallies without actually understanding what it means: sovereignty. We can't make China do something without their consent (and vice-versa). The WTO dispute procedure is different because the required consent was already given upon a country's membership into it. This is not the same with ITLOS (or ICJ for that matter).
To actually claim otherwise is irresponsible because a) it could potentially subject the Philippines to an embarrassing international loss before an international tribunal due to ignorance of international law, with the residual effect of weakening our claim over the areas; and b) it makes our DFA officials and the rest of government look as if they've been remiss in their duties when they actually cannot proceed under ITLOS rules because of China's refusal. It also makes the country look like it's been sleeping on its rights, perhaps even estopped, if this were true when clearly it's not. Even Justice Carpio's claim of bringing China for conciliation is misplaced because even at that level we still need China's consent.
> Having said that, clearly we are presently left with little options in pursuing our claim. The best we can do (and should do) is to continue our legal preparations, keep vigilance over the territories, and implement our laws. We should also increase pressure, through diplomatic channels and media: that China's refusal to face us before any international tribunal is a clear indication of the weakness of their claim. Think Pacquiao vis-a-vis Mayweather.
> Finally, we should stop referring to proximity or the EEZ as basis for our claim over Scarborough. To claim EEZ as basis is tantamount to saying Scarborough is not our territory but merely an area that we have first right to exploit the resources found therein. In fact, Scarborough is not part of the EEZ but the EEZ is actually counted from Scarborough. Scarborough is part of Philippine territory because of discovery, occupation, and effective administration.
As correctly stated by the DFA in its paper released to media:
"The basis of Philippine sovereignty and jurisdiction over the rock features of Bajo de Masinloc is not premised on the cession by Spain of the Philippine archipelago to the United States under the Treaty of Paris. The matter that the rock features of Bajo de Masinloc are not included or within the limits of the Treaty of Paris as alleged by China is therefore immaterial and of no consequence.
Philippine sovereignty and jurisdiction over the rocks of Bajo de Masinloc is likewise not premised on proximity or the fact that the rocks are within its 200 NM EEZ or Continental Shelf (CS) under the UN Convention on the Law of the Sea (UNCLOS). Although the Philippines necessarily exercise sovereign rights over its EEZ and CS, nonetheless, the reason why the rock features of Bajo de Masinloc are Philippine territories is anchored on other principles of public international law.
As decided in a number of cases by international courts or tribunals, most notably the Palmas Island Case, a modality for acquiring territorial ownership over a piece of real estate is effective exercise of jurisdiction. Indeed, in that particular case, sovereignty over the Palmas Island was adjudged in favor of the Netherlands on the basis of "effective exercise of jurisdiction" although the said island may have been historically discovered by Spain and historically ceded to the US in the Treaty of Paris.
In the case of Bajo de Masinloc, the Philippines has exercised both effective occupation and effective jurisdiction over Bajo de Masinloc since its independence."
18.4.12
Globalization and trade's effect on lives
Here's a thoughtful article by James and Albanese on the fade out of the term "globalization":
"By 2011, anti-globalization rhetoric had largely faded, and globalization is thought of as not something to be neither fought nor cheered, but as a fundamental characteristic of the human story, in which disparate geographies and diverse themes are inextricably intertwined. In short, globalization has lost its polemical bite, and with that loss, its attractions as a concept have faded."
Meanwhile, WTO DG Pascal Lamy feels the need to defend trade as a positive influence on people's lives:
"Around the world, extreme poverty is in retreat. The World Bank estimates that an unprecedented 550 million people escaped abject poverty over the last decade. The percentage of people around the world living on $1.25 per day has fallen from 43 per cent in 1990 to 22 per cent today. For the first time in history, less than half of Africans are below the poverty line. Trade has been an important reason why. Expanded trade in countries like China, Brazil, India, Indonesia and Chile is a major part of government growth and poverty alleviation efforts.
"By 2011, anti-globalization rhetoric had largely faded, and globalization is thought of as not something to be neither fought nor cheered, but as a fundamental characteristic of the human story, in which disparate geographies and diverse themes are inextricably intertwined. In short, globalization has lost its polemical bite, and with that loss, its attractions as a concept have faded."
Meanwhile, WTO DG Pascal Lamy feels the need to defend trade as a positive influence on people's lives:
"Around the world, extreme poverty is in retreat. The World Bank estimates that an unprecedented 550 million people escaped abject poverty over the last decade. The percentage of people around the world living on $1.25 per day has fallen from 43 per cent in 1990 to 22 per cent today. For the first time in history, less than half of Africans are below the poverty line. Trade has been an important reason why. Expanded trade in countries like China, Brazil, India, Indonesia and Chile is a major part of government growth and poverty alleviation efforts.
So why is this story not getting out? We at the WTO accept our share of the blame. We can and will do better at explaining how trade improves the lives of most people around the world. Governments and universities need to do more as well. And, frankly, businesses need to lift their play as well. It is companies, after all, which engage in trade, which seek new markets and which benefit from access gained to those markets."
The persuasiveness of natural law
Eastern University's RJ Snell makes a conclusive statement on the persuasiveness of natural law:
"One can neither deny nor question the natural law’s persuasiveness except by asking questions, conducting inquiries, achieving understandings, reaching judgments, and making choices—all of which, if understood as the operations of our own subjectivity, are the natural law at work. And if one denies that one inquires, or understands, or judges, or chooses, one either contradicts what one is doing or one really does not inquire, understand, judge, or choose, in which case persuasion is not available to that sort of creature.
"One can neither deny nor question the natural law’s persuasiveness except by asking questions, conducting inquiries, achieving understandings, reaching judgments, and making choices—all of which, if understood as the operations of our own subjectivity, are the natural law at work. And if one denies that one inquires, or understands, or judges, or chooses, one either contradicts what one is doing or one really does not inquire, understand, judge, or choose, in which case persuasion is not available to that sort of creature.
With respect to postmodern suspicion, this articulation of the natural law grounds itself in no big claims about Reason or Nature or Metaphysics. Although every account intertwines itself with big theories, natural law is not grounded in them, for it claims no foundations from which it is derived, pointing only to the easily observable (even by postmodernists) data of their own questions and judgments and the fact that the more someone suspects and argues against my account the more they refute themselves."
17.4.12
The delusion of developmental advocates
Great article by David Brooks:
"It’s hard not to feel inspired by all these idealists, but their service religion does have some shortcomings. In the first place, many of these social entrepreneurs think they can evade politics. They have little faith in the political process and believe that real change happens on the ground beneath it.
"It’s hard not to feel inspired by all these idealists, but their service religion does have some shortcomings. In the first place, many of these social entrepreneurs think they can evade politics. They have little faith in the political process and believe that real change happens on the ground beneath it.
That’s a delusion. You can cram all the nongovernmental organizations you want into a country, but if there is no rule of law and if the ruling class is predatory then your achievements won’t add up to much.
Furthermore, important issues always spark disagreement. Unless there is a healthy political process to resolve disputes, the ensuing hatred and conflict will destroy everything the altruists are trying to build.
There’s little social progress without political progress. Unfortunately, many of today’s young activists are really good at thinking locally and globally, but not as good at thinking nationally and regionally.
Second, the prevailing service religion underestimates the problem of disorder. Many of the activists talk as if the world can be healed if we could only insert more care, compassion and resources into it.History is not kind to this assumption. Most poverty and suffering — whether in a country, a family or a person — flows from disorganization. A stable social order is an artificial accomplishment, the result of an accumulation of habits, hectoring, moral stricture and physical coercion. Once order is dissolved, it takes hard measures to restore it."
12.4.12
Philippine sovereignty and North Korea
is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
North Korea announced plans to launch rockets into space, to happen sometime between yesterday and this Monday. The US, Japan, and South Korea demanded a stop to such launch, making it clear that such act will be considered an unnecessary provocation in an already tense situation. North Korea, on the other hand, insists that what it will release is merely a satellite and for which as a “sovereign nation” it is fully entitled to do. For such an isolated country, North Korea now finds itself the center of attention. Which is what it probably wanted anyway.
This is not the first time that Pyongyang is firing rockets into space despite international disapproval. In 2009, in the face of UN Security Council condemnation, North Korea unleashed a rocket, walked out on nuclear disarmament talks, and then dispatched a second rocket. This is a country whose government simply gets a kick at mocking the international community.
North Korea announced plans to launch rockets into space, to happen sometime between yesterday and this Monday. The US, Japan, and South Korea demanded a stop to such launch, making it clear that such act will be considered an unnecessary provocation in an already tense situation. North Korea, on the other hand, insists that what it will release is merely a satellite and for which as a “sovereign nation” it is fully entitled to do. For such an isolated country, North Korea now finds itself the center of attention. Which is what it probably wanted anyway.
This is not the first time that Pyongyang is firing rockets into space despite international disapproval. In 2009, in the face of UN Security Council condemnation, North Korea unleashed a rocket, walked out on nuclear disarmament talks, and then dispatched a second rocket. This is a country whose government simply gets a kick at mocking the international community.
For their part, South Korea declared that it will shoot down any North Korean rocket entering its territory. Japanese Prime Minister Yoshihiko Noda was vehement in ordering that any North Korean rocket violating Japanese territory be shot down, and readied their Patriot missiles, as well as destroyers carrying interceptors. US President Barack Obama bluntly told North Korea to stop their nonsense and that any such launch would be dealt with “sternly,” including the withholding of US food aid. All this international trouble just because North Korea sees nothing wrong with firing rockets merely to celebrate the 100th birthday of its former (and late) president Kim Il-Sung.
The Philippines has weighed in on the issue. Last April 4, President Noynoy Aquino declared that North Korea’s actions violate UN Security Council Resolutions 1718 and 1874. Foreign Affairs Secretary Albert F. del Rosario was more trenchant, expressing the Philippines’ “grave concern over the announced plan of the Democratic People’s Republic of Korea (DPRK) to launch a satellite” and “strongly suggested that other ASEAN member states urge the DPRK not to proceed with its planned launch.”
But the direct and immediate problem for the Philippines is that North Korea’s rocket (or its debris) may enter Philippine territory, somewhere between Aparri and Quezon province. Thus, Undersecretary Benito Ramos of the National Disaster Risk Reduction and Management Council announced that a “no-fly zone, no-sail zone, and no-fishing zone” shall be enforced in the east Philippine area. Dr. Alumanda de la Rosa of the Department of Science and Technology nevertheless assured people that North Korea’s rocket “does not carry any nuclear warhead.” Still, having said that, Dr. de la Rosa adds, “in the event of a suspected radiation report, NDRRMC, with the recommendation of PNRI, will reactivate the country’s radiological plan.” The probable size of expected fallout, by the way, is said to be as large as a bus.
However, while absolutely commending our foreign affairs, security, and science officials for their preparations, may I bring up one particular point seemingly missed: if indeed North Korea proceeds with its launch and if indeed its rocket (or parts thereof) enter Philippine territory, then perhaps somebody should raise the singular fact that the North Korean government is deliberately and heedlessly violating Philippine territory and, thus, our sovereignty. While it’s fine to bring up the issue of Security Council resolutions probably being breached and that regional stability may be impaired, what is truly important as far as Filipinos are concerned is the fact that our rights, under the UN Charter and under customary international law, may be violated. We shouldn’t merely be concerned, we should be outraged.
Consider this: we are in our land and yet it is we who have to adjust our way of living just because some foreign jerk decides to celebrate some dead guy’s birthday by firing rockets in the air? While it is proper for our police and local officials to say they will apprehend fishermen that insists in fishing in the endangered areas, still something must be done to compensate them for their loss of income. And that includes all the tourism, agriculture, shipping, industry, and the like that will be stopped just because of this launch. Incidentally, it’s quite telling that those local activist lawyers who normally shriek at any alleged Philippine infringement of international rules are now quiet at this clear violation of Philippine rights.
We have to exercise our sovereignty. Or lose it. While we may not have the military capabilities to protect ourselves from North Korea’s rockets, we nevertheless (presumably) still have our wits. We must find a way to enforce compensation or restitution from North Korea, if not through the Security Council or some other mechanism, then through countermeasures that will enable satisfaction for the Philippines. An apology from North Korea, at the very least, should those rockets enter Philippine territory, must be had.
31.3.12
WTO: dead again
is the subject of my Trade Tripper column for this Friday-Saturday issue of BusinessWorld:
Happened to read Bryan Magee’s Confessions of a Philosopher last weekend and noted this quite interesting passage: "What matters above all else in politics is what happens, not what people say about it. And for the most part what happens is independent of my wishes. In politics especially, people tend to allow their wishes to influence their assessment of reality, and to mix up the two even at conscious levels of thinking." Magee might as well be talking about international trade.
For instance, former US trade negotiator Clyde Prestowitz wrote (Financial Times, 20 March 2012) that the EU, Japan, China, and Brazil seems intent in playing a different "trade game" than that of the US. As Prestowitz puts it, "experience taught me that in today’s globalized world two different games are being played. One is suggested by the formal rules of the World Trade Organization. The other is a silent mercantilism played by countries that use subsidies and domestic regulations to exploit ambiguities in the formal WTO rules -- or that simply ignore them." Hence, while ideally everybody should be playing what he calls "trade rugby," instead certain countries are playing a different game which takes "advantage of the rules’ ambiguity, it can be played in the shadows of the global institutions, but it cannot be disciplined by them because it is a game with its own very different rules and scoring system."
This view is apparently shared by others. But, unfortunately, the logic has been extended in a distorted way by people that ordinarily would be considered reasonable, arriving at rapid conclusions that, in essence, call for the death knell of the WTO. But to consider the WTO or the multilateral system it represents or embodies as outmoded, irrelevant, or systemically inadequate is wrong. It’s like calling an end to basketball just because certain quarters have gotten adept at the run-and-gun game while the founding teams rather insist on their set half court plays. The game stayed the same, it’s still basketball. It’s just that some players found another way, a way suited to their particular circumstances, of playing it. While the traditional players could not be faulted for feeling threatened by this new type of play (and Prestowitz admits as much when he states that "‘they’ [meaning other countries] are playing a different trade game than ‘we’ [the US] are, and their approach is unfair to us"), nevertheless, it would be incredibly unjust, "unsporting" if you like, to scrap the game altogether merely because of it.
And what would be the suggested substitute if the WTO is indeed dead? In so many words, preferential or free trade agreements. But FTAs, as anybody following this column knows, is preferred by developed countries (the "traditional players") simply because that system and its playing field is currently loaded in their favor. As I noted a few years ago, the disparity between the benefits going to richer countries as opposed to that going to poorer countries was affirmed in a UN University Working paper ("North-South vs. South-South Asian FTAs: Trends, Compatibilities, and Ways Forward"). The paper’s empirical analysis reveal "that several incompatibilities exist between N-S and S-S FTAs in core areas including tariff liberalization, rules of origin, [and] liberalization of services trade." It must be emphasized that such realities, aren’t new. The Economist stated way back in 2004 ("Trade Policy: Not All Trade Agreements Are Good"), that: "Most bilateral agreements are far from ideal… Bilateralism may be a route to freer global trade, but it is, at best, a risky one." It must be emphasized that 20 years after its inception, Philippine utilization of AFTA benefits still remains at a low 20%.
That is why Columbia University’s Jagdish Bhagwati calls FTAs "termites in the trading system," used "by hegemonic powers to foist on weaker trading partners demands unrelated to trade but desired by domestic lobbies, at times in a markedly asymmetric way." Besides, the thinking that certain regional arrangements are there to balance against developed countries is again merely wishful thinking. Take for instance BRICS (Brazil, Russia, India, China, and South Africa), which is touted as the counterpoint to Western trade powers. And yet, as the Center for Policy Research’s Brahma Chellaney points out, BRICS remains "a concept in search of a common identity and institutionalized cooperation" and it remains "uncertain whether the group’s members will ever evolve into a coherent grouping with defined goals and institutional mechanisms."
Finally, the WTO will remain simply because there is no alternative to its highly effective dispute settlement system, a system that developing countries are using against developed countries with ever increasing confidence and competence. One WTO finding even declares that "since 1995 developing countries have brought nearly 40% of the complaints filed in the WTO. However, since 2000, developing countries have brought nearly 60% of the complaints."
As Mark Twain would probably say, the death of the WTO is "highly exaggerated."
Happened to read Bryan Magee’s Confessions of a Philosopher last weekend and noted this quite interesting passage: "What matters above all else in politics is what happens, not what people say about it. And for the most part what happens is independent of my wishes. In politics especially, people tend to allow their wishes to influence their assessment of reality, and to mix up the two even at conscious levels of thinking." Magee might as well be talking about international trade.
For instance, former US trade negotiator Clyde Prestowitz wrote (Financial Times, 20 March 2012) that the EU, Japan, China, and Brazil seems intent in playing a different "trade game" than that of the US. As Prestowitz puts it, "experience taught me that in today’s globalized world two different games are being played. One is suggested by the formal rules of the World Trade Organization. The other is a silent mercantilism played by countries that use subsidies and domestic regulations to exploit ambiguities in the formal WTO rules -- or that simply ignore them." Hence, while ideally everybody should be playing what he calls "trade rugby," instead certain countries are playing a different game which takes "advantage of the rules’ ambiguity, it can be played in the shadows of the global institutions, but it cannot be disciplined by them because it is a game with its own very different rules and scoring system."
This view is apparently shared by others. But, unfortunately, the logic has been extended in a distorted way by people that ordinarily would be considered reasonable, arriving at rapid conclusions that, in essence, call for the death knell of the WTO. But to consider the WTO or the multilateral system it represents or embodies as outmoded, irrelevant, or systemically inadequate is wrong. It’s like calling an end to basketball just because certain quarters have gotten adept at the run-and-gun game while the founding teams rather insist on their set half court plays. The game stayed the same, it’s still basketball. It’s just that some players found another way, a way suited to their particular circumstances, of playing it. While the traditional players could not be faulted for feeling threatened by this new type of play (and Prestowitz admits as much when he states that "‘they’ [meaning other countries] are playing a different trade game than ‘we’ [the US] are, and their approach is unfair to us"), nevertheless, it would be incredibly unjust, "unsporting" if you like, to scrap the game altogether merely because of it.
And what would be the suggested substitute if the WTO is indeed dead? In so many words, preferential or free trade agreements. But FTAs, as anybody following this column knows, is preferred by developed countries (the "traditional players") simply because that system and its playing field is currently loaded in their favor. As I noted a few years ago, the disparity between the benefits going to richer countries as opposed to that going to poorer countries was affirmed in a UN University Working paper ("North-South vs. South-South Asian FTAs: Trends, Compatibilities, and Ways Forward"). The paper’s empirical analysis reveal "that several incompatibilities exist between N-S and S-S FTAs in core areas including tariff liberalization, rules of origin, [and] liberalization of services trade." It must be emphasized that such realities, aren’t new. The Economist stated way back in 2004 ("Trade Policy: Not All Trade Agreements Are Good"), that: "Most bilateral agreements are far from ideal… Bilateralism may be a route to freer global trade, but it is, at best, a risky one." It must be emphasized that 20 years after its inception, Philippine utilization of AFTA benefits still remains at a low 20%.
That is why Columbia University’s Jagdish Bhagwati calls FTAs "termites in the trading system," used "by hegemonic powers to foist on weaker trading partners demands unrelated to trade but desired by domestic lobbies, at times in a markedly asymmetric way." Besides, the thinking that certain regional arrangements are there to balance against developed countries is again merely wishful thinking. Take for instance BRICS (Brazil, Russia, India, China, and South Africa), which is touted as the counterpoint to Western trade powers. And yet, as the Center for Policy Research’s Brahma Chellaney points out, BRICS remains "a concept in search of a common identity and institutionalized cooperation" and it remains "uncertain whether the group’s members will ever evolve into a coherent grouping with defined goals and institutional mechanisms."
Finally, the WTO will remain simply because there is no alternative to its highly effective dispute settlement system, a system that developing countries are using against developed countries with ever increasing confidence and competence. One WTO finding even declares that "since 1995 developing countries have brought nearly 40% of the complaints filed in the WTO. However, since 2000, developing countries have brought nearly 60% of the complaints."
As Mark Twain would probably say, the death of the WTO is "highly exaggerated."
25.3.12
Show on natural law and other issues
Just a quick note on our new show Naturang Batas: Likas Na Tama, which airs on TV Maria (cable channel 12 on Dream, 94 on Global Destiny, and 160 on Sky) every Monday, 11:00am, 7:00pm, and 11:30pm.
The show seeks to make audiences familiar with natural law and its implications on Filipinos' day-to-day lives. It also discusses various relevant social issues through the lens of natural law thinking.
Here are links to the previous four episodes:
- The separation of Church and State (with Prof. Buboy David and David Rosario)
- Introduction to Natural Law (with Fr. Ces Magsino and Edwin Lopez)
- Contraception (with Raul Nidoy, Ipe Salvosa, and Isha De Veyra)
- Youth (with David Rosario, Justin Akia, JV Pimentel, Luke Magsila, Jemima Landong, Glo Gueverra, and Ramon Cabrera)
Do support our advocacy of making natural law play a significant and systematic part of Philippine law and policy.
The show seeks to make audiences familiar with natural law and its implications on Filipinos' day-to-day lives. It also discusses various relevant social issues through the lens of natural law thinking.
Here are links to the previous four episodes:
- The separation of Church and State (with Prof. Buboy David and David Rosario)
- Introduction to Natural Law (with Fr. Ces Magsino and Edwin Lopez)
- Contraception (with Raul Nidoy, Ipe Salvosa, and Isha De Veyra)
- Youth (with David Rosario, Justin Akia, JV Pimentel, Luke Magsila, Jemima Landong, Glo Gueverra, and Ramon Cabrera)
Do support our advocacy of making natural law play a significant and systematic part of Philippine law and policy.
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