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Abstract:
This Article scrutinizes varying interpretive methodologies used by different tribunals of the International Centre for Settlement of Investment Disputes (ICSID) in relation to Article XI of the US-Argentina bilateral investment treaty (BIT), which, in different degrees, had referred to the customary doctrine of “necessity” to derive Article XI’s substantive meaning and legal effects. Neither Sempra v. The Argentine Republic, LG & E v. The Argentine Republic, CMS Gas v. The Argentine Republic, nor most recently in 2008, Continental Casualty Insurance Company v. The Argentine Republic, evince a demonstrably adequate interpretive methodology within the framework of Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT). Accordingly, this Article proposes a return to these fundamental rules of treaty interpretation. Given conceptual and methodological incompatibilities between the customary doctrine of “necessity” and Article XI, the Article holds that the customary doctrine has no interpretive utility for Article XI. Rather, treaty appliers of Article XI (and other similarly-worded treaty clauses on non-precluded measures) should abide by the components of the unitary system of interpretation under the VCLT, particularly the treaty text and context. A State invoking an Article XI-type NPM utilizes Article XI to address potential international responsibility vis-a-vis the other State Party to the BIT, and cannot use Article XI to remove its lex specialis substantive duties under the BIT to that State Party’s investors. Finally, the Article recommends that treaty appliers should privilege a wholistic reading of the lex specialis as the governing law whenever the host State claims an economic emergency to plead outright exculpation from substantive obligations in bilateral investment treaties.

necessity in international law, treaty interpretation, Article XI of US-Argentina BIT, lex specialis

Abstract:
This paper proposes a theory of justiciability for socio-economic rights specified in Art. II, secs. 8-24 and Art. XIII - XV of the 1987 Philippine Constitution. While these provisions had been previously declared as the “heart of the new [1987] Charter” (ARIS (Phil) Inc. v. National Labor Relations Commission et al., G.R. No. 90501, August 5, 1991), subsequent jurisprudence of the Philippine Supreme Court has tended to treat these constitutional norms as little more than aspirational, non-self-executing, and ultimately mere hortatory guidelines for the Legislative and Executive Branches. (Basco et al. v. Philippine Amusements and Gaming Corporation, G.R. No. 91649, May 14, 1991.)

A closer look at the formative history of the 1987 Philippine Constitution exposes structural considerations that militate against automatic non-justiciability of socio-economic rights. Article VIII, Section 1 of the postcolonial and post-dictatorship 1987 Constitution uniquely expanded the Philippine Supreme Court’s power of judicial review beyond the traditional justiciability threshold (“the duty of courts of justice to settle actual controversies which are legally demandable and enforceable”), towards wider review of government discretion (“to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”) A corollary expansion of the Court’s rule-making powers accompanied the enlargement of the sphere of judicial review. Article VIII, Sec. 5(5) of the 1987 Constitution grants the Court the power to “promulgate rules concerning...the enforcement of constitutional rights.”

From the standpoint of judicial power, the Philippine Supreme Court has clearly been vested with constitutional authority to determine its own parameters of justiciability with respect to constitutionally-textualized socio-economic rights. The Court’s own practice of relaxing justiciability constraints in cases of “threshold constitutional importance” affirms the malleability of justiciability doctrine beyond the frontiers of the six-pronged test in Baker v. Carr. This deliberate expansion of both the judicial review and rule-making powers of the Philippine Supreme Court typifies the active re-direction of the Court’s role, away from the passivity of the standard political question doctrine that had predominated earlier constitutional eras under the 1973 and 1935 Constitutions.

Moreover, the drafting history of the 1987 Constitution belies any intent to diminish the constitutional importance of socio-economic rights, as opposed to civil and political rights. The 1986 Constitutional Commission repeatedly referred to international legal standards on socio-economic rights (particularly the International Covenant on Economic, Social, and Cultural Rights) to introduce specific constitutional prescriptions, and not mere normative aspirations. This places greater responsibility on Philippine judges to carefully ascertain if justiciability is constitutionally-intended, or, conversely, if justiciability had been purposely ruled out by the framers of the 1987 Constitution.

Justiciability can be reconceptualised with sensitivity towards the Court’s use and understanding of its powers, roles, and practices under the 1987 Constitution. To this end, the jurisprudence of the South African Constitutional Court on socio-economic rights provides rich comparative insights into judicial methodology and interpretation. Cognizant of its historic and constitutional role, the South African Constitutional Court has long transcended the usual objections of ‘enforceability’ and ‘lack of government resources’ to adjudicate cases involving governmental distributive programs that impact on socio-economic rights. Exemplar cases such as Government of Republic of South Africa v. Grootboom, Minister of Health v. Treatment Action Campaign, and Thiagraj Soobramoney v. Minister of Health, among others, show that socio-economic rights and governmental duties can indeed be calibrated in modern constitutional adjudication.

Drawing from comparative South African scholarship, this paper proposes a triangulated theory (“Purpose-Role-Norm”) to assist the Philippine Supreme Court in determining the justiciability of socio-economic rights in the 1987 Constitution. First, the Court could look to the purpose of the justiciability constraint, and whether maintaining the traditionally high justiciability threshold set by Baker v. Carr is consistent with this purpose. This framework deliberately espouses Professor Jonathan A. Siegel’s methodology in his work, “A Theory of Justiciability,” 86 Tex. L. Rev. 73 [November 2007.]

Second, the Court should also look to their constitutional role, and whether, under their expanded judicial review and rule-making powers, the Court can appropriately adjudicate the case or controversy involving socio-economic rights. This analytical prong should be examined along with the third aspect to this theory, which is to look at the norm as constitutionally-formulated. From a considered scrutiny of both constitutional text and its corresponding drafting history, the Court can also better determine whether the Constitutional provision contemplates an actionable right, as opposed to a non-self-executing norm requiring Congressional implementation.

The foregoing triangulated theory has not been absent or unattempted in jurisprudential methodology. However, much of the difficulty with determining the propriety of the Court’s adjudication of socio-economic provisions of the 1987 Constitution lies with eliciting methodological consistency, and how the Court could provide for the predictability and stability of constitutional outcomes. The documented experience of the South African Constitutional Court has much to impart on its consciousness of the Court’s role and powers under the South African Charter. The South African Constitutional Court also valuably demonstrates a decided predisposition to adjudicate socio-economic rights notwithstanding usual governmental resource constraints. At the very least, this proposed triangulated theory aspires to prevent offhand dismissals of Philippine constitutional cases on socio-economic rights, by inducing the Philippine Supreme Court to periodically and systematically revisit its constitutional powers, roles, and practices.

justiciability, socio-economic rights, Philippine Supreme Court, South Africa Constitutional Court

Abstract:
This paper responds to the defenses of ‘culture’ and ‘development’ rights as justifications for exceptionalism in human rights obligations in Southeast Asia, particularly against the context of the passage of the Association of Southeast Asian Nations (ASEAN) Charter. Under the new ASEAN Charter, member States have the general obligation to abide by the Organizational Principles of “adherence to the rule of law, good governance, the principles of democracy and constitutional government”, as well as “respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice”. More importantly, it is now the specific obligation of ASEAN member states to “take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of the Charter and to comply with all obligations of membership”, including the above-stated Organizational Principles. The paper shows the normative, conceptual, and empirical weaknesses of the ‘culture’ and ‘development’ justifications for creating exceptions to the observance and protection of core human rights norms. Assessing the right to culture as an exception to human rights observance, the paper asserts the ideological imprecision of the ‘right to culture’ as an exception to human rights observance, noting that the porous definition of ‘culture’ should not be equally valued in its assertion against core human rights norms which form part of general international law (e.g. jus cogens prohibitions, crimes against humanity, war crimes, egregious violations of human rights, obligations erga omnes) and which can be modified only by a subsequent norm of the same character. The cultural exception also suffers from teleological incoherence, since the protection of core human rights norms bears a greater immediacy and proximity to human dignity and personhood --- a fundamental value that should be more conceptually valuable than the porous construct of culture. Turning to the ‘right to development’ as an exception to human rights observance, the paper contends that there is empirical uncertainty and/or indeterminacy in the concept of ‘development’ that undermines its legal-philosophical value as an exception to human rights observance. Moreover, contrary to the assertions of development exceptionalism to human rights observance, there is no linearity in the claim that human rights protection ‘impedes’ development. Rather, as shown in recent economic analysis, there is a stronger claim for human rights protection as a necessary precondition for development. Further reinforcing these refutations of ‘culture’ and ‘development’ justifications for human rights exceptionalism, however, is the emergence of a customary international law norm rejecting impunity for serious violations of human rights (specifically, civil and political rights), which has gained recognition from the forty-year independent practice (primarily seen in treaty ratifications and implementation) of Southeast Asian states. Despite variances in the degree of ASEAN member States’ practices, there is at least consistent opinio juris that redress for serious human rights violations should not be met with non liquet in remedial processes, whether domestic or international. The passage of the ASEAN Charter therefore marks a convergence of ASEAN towards ‘universalizing’ core human rights norms as now seen in its Organizational Principles and the new requirements of ASEAN membership obligations.

ASEAN, human rights treaties, right to development, right to culture

Abstract:
From the beginnings of South and Southeast Asian participation in the international legal order, international law discourse from these regions has been thematically postcolonial and substantively development-oriented. Postcolonialism in South and Southeast Asian conceptions of international law is an ongoing dialectical project of re-visioning international legal thought and its normative directions - towards identifying, collocating, and applying South and Southeast Asian values and philosophical traditions alongside the Euro-American ideologies that, since the classical Post-Westphalian era, have largely infused the content of positivist international law. Of increasing necessity to the intricacies of the postmodern international legal system and its institutions is how the postcolonial project of South and Southeast Asian international legal discourse focuses on areas of international law that create the most urgent development consequences: trade, investment, and the international economic order; the law of the sea and the environment; international humanitarian law, self-determination, socio-economic and cultural human rights.

South Asia and international law, SAARC, Southeast Asia and international law, ASEAN

Abstract:
The total prohibition against foreign ownership of Philippine mass media exemplifies a broader polemic on nationalism - as a legitimate priority for constitutional protection, as opposed to being an appealing mass strategy for political rhetoric. Within this theoretical setting, I propose a differentiated analysis of the issue of foreign ownership prohibition in mass media. I draw three (3) brief lines of critique against the total prohibition of foreign ownership of Philippine mass media. First, I dispute the traditional "public interest" justification for barring any form of foreign ownership in mass media in the Philippines, showing that the fear of "foreign influence" over media content is dependent on an asserted political truth that is in no way self-evident, much less materially relevant from apparently (and already) "internationalized" Philippine media practices. Second, I question the implicit assumption that foreign ownership restrictions improve economic growth through wholly-owned Filipino companies, showing that there is no strict causal nexus between total exclusion of foreign ownership and the improvement of shareholder value of Philippine mass media companies. In fact, as many empirical studies affirm, at least some degree of foreign ownership, even in media sectors, has tended to improve domestic economic growth in developing countries, through the infusion of necessary capital and the dismantling of monopolistic structures.

Third, and most crucially, I argue that the constitutionalization of the complete prohibition against foreign ownership merely creates a convenient ideological cover that locks in specific and entrenched oligarchic interests which have long since dominated Philippine mass media. Instead of being a significant constitutional policy, "nationalism" acquires disutility through its reduction to mere inflammatory political rhetoric, as in the case of the foreign ownership prohibition in mass media. The latter not only stifles open competition in providing the service of access to information, but more problematically, denies genuine contestation in a fully democratic marketplace of ideas envisioned in the 1987 Philippine Constitution. By pre-committing the Philippines to an absolute and total constitutional prohibition against foreign ownership of mass media, the 1986 Constitutional Commissioners inadvertently achieved perverse results antithetical to the goals of national development and social equality. Thus, in order to avoid this disingenuous locking in of special interests in Philippine mass media in the guise of nationalist rhetoric, I advocate a de-constitutionalization of the total prohibition of foreign ownership in Philippine mass media and advertising, in order to turn the issue over to more flexible and open legislative processes of speech and debate, and concomitantly, to cyclically-repeated exercises of public auditing.

Part I juxtaposes the constitutional and legal framework of foreign ownership with the present structure of Philippine mass media ownership, pointing out key political and legal institutions that have traditionally protected specific family or oligarchic interests in Philippine mass media. Part II discusses public interest, economic, and sociological lines of critique against the constitutional prohibition against any foreign ownership in Philippine mass media. Part III then argues the proposal for de-constitutionalization, and concludes that the presence or extent of any foreign ownership restriction in Philippine mass media can be better debated, vetted, and adjusted through the dynamic interaction between legislative controls and the unprecedented expansion of judicial review under the 1987 Philippine Constitution.

foreign ownership, mass media ownership, Philippine Constitution

Abstract:
In the wake of the ongoing “extrajudicial killings” of journalists, political dissidents, and other civilians dubbed by several military leaders as “enemies of the state,” the Philippine Supreme Court issued Administrative Order 25-2007, designating special courts to hear, try, and decide cases involving killings of political activists and members of media. Soon afterwards, Chief Justice Reynato Puno declared that the Supreme Court will hold a multi-sectoral summit on extrajudicial killings and set the stage for the possible rewriting of Philippine legal procedures in order to facilitate and expedite the prosecution of the perpetrators.

The Supreme Court’s initiatives are the first concrete proposals to revise the current legal framework in order to address the problem of extrajudicial killings in the Philippines. While the Chief Executive had constituted the Melo Commission to conduct fact-finding investigations (and the Commission’s Report has already been made public), the Chairman of the Commission himself declared that the Commission’s Report was “complete, but not final," in view of the continuation of extrajudicial killings. Significantly, the Melo Commission Report itself recommends the drafting of a special law for “strict chain-of-command responsibility." "The President should propose legislation to require police and military forces and other government officials to maintain strict chain-of-command responsibility with respect to extrajudicial killings and other offenses committed by personnel under their command, control, or authority. Such legislation must deal specifically with extralegal, arbitrary, and summary executions and forced 'disappearances' and provide appropriate penalties which take into account the gravity of the offense. It should penalize a superior government official, military, or otherwise, who encourages, incites, tolerates, or ignores, any extrajudicial killing committed by a subordinate. The failure of such a government official to prevent an extrajudicial killing if he had a reasonable opportunity to do so, or his failure to investigate and punish his subordinate, or to otherwise take appropriate action to deter or prevent its commission or punish his erring subordinate would be criminalized. Even 'general information' - e.g. media reports - which would place the superior on notice of possible unlawful acts by his subordinate should be sufficient to hold him criminally liable if he failed to investigate and punish his subordinate.”

The foregoing judicial and legislative responses to the problem of extrajudicial killings in the Philippines make it imperative to revisit the doctrine of command responsibility under international law, and particularly as incorporated in Philippine law. Owing to the lack of clarity on the precise content and elements of the doctrine of command responsibility in Philippine jurisdiction, there has been some reluctance to fully exhaust this doctrine as a species of attribution for criminal prosecution in the Philippines. This should not be the case. The doctrine of command responsibility is the articulation of a global consensus that the architects of the most egregious wartime atrocities, crimes against humanity, grave breaches of the Geneva Conventions, and serious violations of human rights should not escape criminal legal sanction and responsibility. As will be subsequently shown, considering the marked provenance of the doctrine of command responsibility (traceable to the Philippines, among other jurisdictions), there is a greater impetus for the doctrine to be fully utilized in the Philippine legal system.

Part I of this paper traces the historical contours of the doctrine of command responsibility, its status as customary international law, and its incorporation in Philippine law, as affirmed and articulated in post-World War II cases decided by the Philippine Supreme Court.

Part II then examines the doctrinal nuances of command responsibility as a form of derivative imputed criminal liability upon superiors, scrutinizes the requirements of mens rea and actus reus to satisfy legal attribution, and addresses the extent of the applicability of the defense of “superior orders”. Part III discusses emerging refinements to the doctrine of command responsibility from the recent rules and jurisprudence of international criminal tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). Part IV analyzes the applicability and limitations of the command responsibility doctrine to the extrajudicial killings, considering its present customary international law status and the extent of its incorporation in Philippine law.

command responsibility, extrajudicial killings in the Philippines, international criminal law

Abstract:
In Romulo Neri v. Senate of the Republic of the Philippines (March 25,2008), the Philippine Supreme Court upheld a Cabinet member’s claim of executive privilege in a legislative inquiry involving controversial high-level corruption in government transactions, after the narrow Neri majority transplanted a test of ‘presidential communications privilege’ from American jurisprudence. The Neri majority’s abrupt importation of American jurisprudential doctrine caused the untoward expansion of the doctrine of executive privilege, with unsettling implications for universalist constitutional politics. This was an unprecedented departure from the settled pattern of Philippine constitutional jurisprudence, which, before Neri’s promulgation and in strict adherence to the universalist normative structure of the 1987 postcolonial and post-dictatorship Philippine Constitution, had generally favored a greatly-delimited sphere of unreviewable Presidential discretion.

This Article applies a universalist reading of the postcolonial and post-dictatorship 1987 Philippine Constitution to a specific form of executive particularism - the doctrine of executive privilege. Executive privilege is not found anywhere in constitutional text, but exists through judicial recognition. Given this doctrinal singularity, the Philippine Supreme Court’s methodology and use of foreign sources in recognizing executive privilege should be seen as an open area for contestation and critique. Posing a universalist dialectic to the problem of executive privilege, I argue that while Presidential control of information regarding public transactions is typically fraught with the particularist justifications of “sovereign prerogative” and “national interest,” executive privilege can be scrutinized from the lens of the 1987 Constitution’s universalist ideology. In this case, universalist ideology is ascertainable from expressly-constitutionalized universalist rights to information and access to government data, as well as international legal standards on the right to information that are likewise present in the Philippine constitutional system due to the Incorporation Clause. Judicial sensitivity to universalist constitutionalism in the 1987 Constitution should therefore favor a return to restricted executive particularism, and ultimately, a more limited scope of executive privilege.

doctrine of executive privilege, Philippine Constitution, Philippine Supreme Court, universalism

Abstract:
In securities parlance, a cross-border transaction is technically-defined as “the purchase or sale of equity on a stock exchange that is local to the company issuing the security for the benefit of a non-resident investor." Over the last few decades, however, international legal practice has expanded in ways that generally consider cross-border transactions as those encompassing a wide range of commercial agreements on goods, services, and capital. Cross-border transactions, in this sense, are frequently regulated by private international law conventions - from the international sale of goods, international financial leasing, international interests in mobile equipment and financing, international factoring, indirectly-held securities, documentary credits, among others. As some authors put it, “[i]nternational commercial agreements raise interesting and complex issues relating to establishing the proper forum for resolution of disputes, identifying the procedural rules to be followed when a dispute arises and, eventually, the ability of the prevailing party to enforce a judgment or award outside of the jurisdiction in which it was rendered. The parties to a cross-border agreement are free to agree on and insert a choice-of-forum provision in their contract; and, in most cases, the selection will be honoured by the courts if the case arises in an industrialized country. That said, international traders are often reluctant to voluntarily submit potential contract disputes to the courts of their foreign partners, fearing, often correctly, that they will not be able to receive fair treatment. As a result, alternative dispute resolution (i.e. arbitration) is often selected for international contracts, and such provisions are readily enforced.” Dispute resolution in cross-border transactions thus involves a “paradigmatic shift in the way international business disputes are resolved” - away from the deeply-politicized and information-asymmetric nature of litigation in domestic courts, to a process of managing conflict between foreign parties usually involving ‘internationalized’ subject matter. In Part I, this paper briefly surveys features of several dispute resolution mechanisms (specifically, arbitration, mediation, conciliation, and mini-trials) alongside dispute avoidance mechanisms (negotiation, risk-minimization systems, and ADR filter mechanisms), and contrasts these with the potential for domestic litigation of controversies arising from cross-border transactions through the 2005 Convention on Choice of Court Agreements. To help in evaluating the suitability of a given dispute resolution mechanism to particular business needs in a cross-border transaction, Part II compares dispute resolution mechanisms’ responsiveness to issues of: 1) jurisdiction or forum selection; 2) choice of law and sources of law; 3) interim or provisional measures; and 4) recognition and/or enforcement. Part III concludes by offering some explanations for arbitration’s dominance as the frequently-preferred dispute resolution mechanism in cross-border transactions, and in turn, outlines some limited prospects for less-utilized forms of dispute resolution.

dispute resolution, cross-border transactions, arbitration, mediation, mini-trials