ONLY recently,

Prof.

Clarita

Carlos, a political scientist often consulted both by government and others on policy issues and one of UP’s glittering contributions to the firmament of academia in the Philippines, commented, almost in dismay on Facebook, a medium of which she and I are votaries, that international law is really “might is right.”

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For all that, we who teach international law say about it, the realpolitik, as she called it, is the mighty always have the right of way. The puny must yield.

Ever since we decided (or, it was decided for us and for our progeny!) that we would live in this world as States, then what emerged from the Treaty of Westphalia was what traditional international law were multiple entities — elites — for whom sovereignty meant “principes superiories non recognoscentes” …. princes recognizing no superiors. There could be no sovereignty over this assemblage of sovereignties. And when this is the reality with which one deals, it is illogical to expect some superior source of authority and of law. So it is that international law is what the States wish to be law: the treaties they forge by which they ostensibly bind themselves, as well as the practices they take to be binding upon themselves with force of law — what international law professors have always referred to as “opinio juris sive necessitatis,” does not really describe the practice but the belief something has to be done because the requirement or expectation engenders the necessity has the force of law.

Foucault has lectured and written prodigiously on “governmentality” and in one of these lectures delivered to the College de France, he maintains the Treaty of Westphalia was the result of the gradual collapse of the dominance of both empire and papacy, both global powers at one time held universal sway. The emperor’s domain stretched far and wide. It recognized no boundaries, no borders put up by culture, language and ethnicity. East and west, north and south hardly mattered to the empire. On it, the sun never set. It was the same for the pope who, for some time, treated even emperors as his subalterns. The reach of the Church’s power was as far as Jesus the Lord had commanded it: ad fines terrae…to the ends of the earth.

But Westphalia dawned a new world order: multiple sovereignties. And to this day, these sovereignties are a problem in respect to the enforcement of international law. And contemporary authors still agreed the twin doctrines of “sovereign immunity” and “act of state” stand in the way of effective enforcement of international law. Judicial recourse within municipal legal systems in cases of non-compliance with international law almost always flounder on the “political question” doctrine.

So, Prof. Carlos is right about being dismayed — and right as well in her reading of realpolitik. With China on the Security Council, how does one expect this body to take truly decisive measures on the West Philippine Sea issue for as long as the archaic veto (in fact double-veto) system is in place?

On the other hand, even China offers pretexts for its annoying incursions by citing principles such as “historic title” that, at one time or other, had currency in international law. I am driving at the point even the hypocrisy with which lawbreakers seek an excuse for their contumely is framed in the terms and rules of international law. Then too there is the fact, as a general rule, States do comply. Territorial incursions draw global attention and raise military alert levels precisely because they are not everyday happenings. In other words, the norm against non-aggression and respect for the territorial integrity of another State are taken with seriousness.

Whereas at one time one needed military strategists and politicians to draw up war plans or military action, today, lawyers have to be part of the team because law figures prominently even in war, the most lawless of human activities. The Geneva Conventions are known by all and by international agreement, taught to all the military personnel of all states. There now is very serious consideration about what is permissible and impermissible in the conduct of armed operations. Even if the Philippines has announced it is withdrawing from the Rome Statute that established the International Criminal Court, our legislature nevertheless enacted Republic Act 9851 virtually reproducing the substantive provisions of the Rome Statute in respect to Genocide, Crimes Against Humanity and Violations of the Laws and Customs of War.

The institutions of international law are working. In fact, they are what allow the 21st century world to run in as orderly a manner as rambunctious humanity is able to muster. The World Trade Organization has attracted membership from the most diverse of economies and political systems. China joined it in 2001. The UN, regardless of the diatribes against it, has successfully thwarted what would otherwise be global catastrophes on several occasions. The UN Convention on the International Sale of Goods is the binding law now for many jurisdictions.

Perhaps one of the most powerful arguments for international law comes from Rosalyn Higgins, former president of the International Court of Justice. For her, international law is best viewed as a set of decision-making processes and principles rather than as a set of rules. There is much to commend this view, for in invoking both arbitrations as provided for in Unclos and submitting arguments anchored on international law, we were employing the decision-making processes that, in Higgins’ view, constitute international law. It is precisely because states claim sovereignty with the concomitant rejection of all sovereignty over them there have to be established processes, clear principles as well as settled procedures by which decisions are to be made in the international community.

Finally, unlike the domestic law of states that have the police to enforce the law, enforcement of international law will be more “horizontal” in nature: the states themselves must see to the observance of international law. That is how we gained some respite from the previously mad proliferation of nuclear weapons. That is how we hope to bring about an attenuation of the dreadful depredation of our environment. And this is the reason I have always thought by making the West Philippine Sea an Association of Southeast Asian Nations (Asean) issue rather than contest between the Philippines and China alone, then we may gain some helpful mileage.