Against cynical international law

Few Filipinos realize that key international rules governing the invasion by Russia of Ukraine are deeply entangled with the colonial roots of the Philippine state. In 1925, or nearly three decades after the United States bought the Philippines from Spain for $20 million under the 1898 Treaty of Paris (TOP), the Americans sued the Dutch over the tiny island of Palmas of what is now Indonesia.

The former argued that as Miangas — “discovered” by Spain in the 16th century — is found inside the TOP’s International Treaty Limits just 50 miles southeast of Cape San Agustin, Mindanao, it was among the ceded territories.

“The title of discovery … exists only as an inchoate title,” so ruled Swiss arbitrator Max Huber in 1928, in favor of Holland, which was able to show “effective occupation” of the island. “An inchoate title … cannot prevail over a definite title founded on continuous and peaceful display of sovereignty.” Territorial sovereignty by “effective occupation” means independence: the right to exercise over a territory the functions of a state, to the exclusion of other states. In 1945, at the founding of the UN Charter of which we were an active participant, seizing territory by use of force was finally outlawed.

At the 1955 decolonialist Bandung Conference, with 29 African and Asian states, we supported the principle that “alien subjugation, domination, and exploitation” of peoples contradict fundamental human rights and the Charter of the United Nations, and hinders world peace and cooperation.

Yet, in years of talks with Indonesia to resolve the overlapping exclusive economic zones (EEZ) in the Mindanao-Celebes seas where Palmas lies, we had always insisted on the TOP. We had fortified the view that, far from being a historical relic, it was a solid legal basis for our continuous, open, and peaceful possession of all waters and islands it embraces, including the Kalayaan Island Group, which we tacked to its limits via a 1978 Marcos edict. We had decided to own a grossly immoral colonial deed. In doing so, we may have helped pioneer the concept of uti possidetis juris. Against Russian violation of Ukrainian independence, Martin Kimani, Kenya’s ambassador to the UN, restated the principle. African states have chosen to follow the arbitrary boundaries imposed by colonialism in their continent if only to avoid bloody wars. And rather than “form nations that looked over backwards into history with a dangerous nostalgia … we wanted something greater, forged in peace,” he said.

In 1982, with non-aligned states, we helped draft the Manila Declaration. Approved by the UN General Assembly, it is a landmark document accepted even by the Union of Soviet Socialist Republics, Russia’s predecessor. It asserts that international disputes should be settled exclusively by peaceful means, respecting international peace and security, and justice, as well as the sovereign equality of states. Philippine constitutions, from 1935 to 1987, renounced war as an instrument of national policy.

In 2009, we passed a UN Convention on the Law of the Sea (Unclos)-compliant baselines law. In 2014, or 86 years after Palmas, we gave up our TOP claims and agreed on a common EEZ with Indonesia under the Unclos. This is how maritime and territorial disputes ought to be. It happened barely two months after we filed our South China Sea arbitral case against China, leading to a resounding victory two years later.

Vladimir Putin said Russia’s “special military operation” is in collective self-defense of Donetsk and Luhansk, Eastern Ukraine provinces it had illegally annexed in 2014. He had taken a page from the American playbook in 1984 in the landmark Nicaragua case before the International Court of Justice. Cynical international law always undermines the rule of law.

* * *

Romel Regalado Bagares teaches international law in three Manila law schools and the Philippine Judicial Academy.