Mem
Mem
The
C HIEF J USTICE
REYN
EYNAATO SS.. P UNO
D ISTINGUISHED L ECTURES
SERIES OF 2008
IV
IV.. F OURTH D ISTINGUISHED
OURTH
L ECTURE
CHIEF JUSTICE
Hon. REYNATO S. PUNO
ASSOCIATE JUSTICES
Hon. LEONARDO A. QUISUMBING
Hon. CONSUELO YNARES-SANTIAGO
Hon. ANTONIO T. CARPIO
Hon. RENATO C. CORONA
Hon. CONCHITA CARPIO MORALES
Hon. MINITA V. CHICO-NAZARIO
Hon. PRESBITERO J. VELASCO, Jr.
Hon. ANTONIO EDUARDO B. NACHURA
Hon. TERESITA J. LEONARDO-DE CASTRO
Hon. ARTURO D. BRION
Hon. DIOSDADO M. PERALTA
Hon. LUCAS P. BERSAMIN
COURT ADMINISTRATOR
Hon. JOSE P. PEREZ
CLERK OF COURT
Atty. MA. LUISA D. VILLARAMA
Members
Hon. ADOLFO S. AZCUNA Hon. JOSE P. PEREZ
Chancellor Court Administrator
Executive Officials
Hon. ADOLFO S. AZCUNA Hon. JUSTO P. TORRES, Jr.
Chancellor Vice Chancellor
Hon. MARINA L. BUZON
Executive Secretary
Chiefs of Offices
Hon. JUSTO P. TORRES, Jr. Hon. DELILAH V. MAGTOLIS
Administrative and Finance Office Academic Affairs Office
Academic Council
Hon. ADOLFO S. AZCUNA
Chair
Dean PACIFICO A. AGABIN Prof. RUBEN F. BALANE
Constitutional Law Civil Law
Jocelyn D. Bondoc
Ronald Paz Caraig
Christine A. Ferrer
Joanne Narciso-Medina
Sarah Jane S. Salazar
Charmaine C. Saltivan
Jeniffer P. Sison
Printing Services
Leticia G. Javier and Printing Staff
VOLUME 11 ISSUE NO. 31 JANUARY- JUNE 2009
THE PHILJ
PHILJAA JUDICIAL JOURN AL
JOURNAL
CONTENTS
OFFICIALS OF THE SUPREME COURT OF THE PHILIPPINES ......... iv
OFFICIALS OF THE PHILIPPINE JUDICIAL ACADEMY ...................... v
PROGRAM ................................................................................................... 1
OPENING REMARKS
Justice Dante O. Tinga ................................................................. 5
LECTURE
REFORM OF THE SPANISH CIVIL CODE:
BASIS AND CONTENT
His Excellency Francisco Jose Hernando Santiago .......... 11
REACTIONS ON THE REFORM OF THE SPANISH CIVIL CODE:
BASIS AND CONTENT
Justice Jose C. Vitug ...................................................................... 29
Justice Ricardo C. Puno, Sr. ...................................................... 38
Dr. Maria Liza A. Lopez-Rosario ............................................... 45
CLOSING REMARKS
Chief Justice Reynato S. Puno ................................................. 49
CONTENTS
PROGRAM .................................................................................................. 55
OPENING REMARKS
Justice Leonardo A. Quisumbing ............................................ 59
LECTURE
THE JUDICIAL ADMINISTRATION OF
INDIGENOUS AFFAIRS IN NEW ZEALAND
Justice Edward Taihakurei Durie, DCNZM (Ret.) .......... 63
I. INTRODUCTION ........................................................................ 64
II. DOMESTIC LEGISLATION ....................................................... 66
III. THE MAORI LAND COURT ................................................. 70
IV. THE WAITANGI TRIBUNAL ............................................ 71
V. TRIBAL CORPORATIONS ........................................................ 72
VI. THE CASE FOR JUDGES IN SPECIALIST ROLES ............ 72
VII. SYNOPSIS ................................................................................. 74
VIII. THE JUDGE’S ROLE
IN DETERMINING THE AMBIT OF RIGHTS ................... 75
CLOSING REMARKS
THE IPRA: INDIGENOUS PEOPLES AND THEIR RIGHTS
Chief Justice Reynato S. Puno ................................................. 77
PROGRAM ................................................................................................... 81
OPENING REMARKS
Justice Presbitero J. Velasco, Jr. .................................................. 85
CONTENTS
LECTURE
THE PHILIPPINE NATIONAL TERRITORY
Ambassador Lauro L. Baja, Jr. ..................................................... 93
I. INTRODUCTION ........................................................................ 94
II. CONSTITUTIONAL PROVISIONS ......................................... 94
III. THE PHILIPPINE NATIONAL TERRITORY
AND UNITED NATIONS CONVENTION
ON THE LAW OF THE SEA ................................................. 96
IV. ARCHIPELAGIC STATE ............................................................. 97
V. THE PHILIPPINES AND
THE EXCLUSIVE ECONOMIC ZONE ................................ 98
VI. BASELINES ................................................................................... 103
VII. THE KALAYAAN GROUP OF ISLANDS .............................. 103
VIII. BACK TO THE FUTURE .......................................................... 106
REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE
NATIONAL TERRITORY: AN INTERNATIONAL LAW
AND POLICY PERSPECTIVE
Jay L. Batongbacal, Esq. ............................................................. 108
I. INTRODUCTION ...................................................................... 108
II. A CRISIS OF CONSISTENCY AND CONFUSION ............ 110
III. COMMON MISCONCEPTIONS ABOUT UNITED
NATIONS CONVENTION ON THE LAW OF THE SEA ..... 121
IV. ARCHIPELAGIC BASELINES AND
THE SOUTHEAST ASIAN REGION .......................................... 127
V. CONCLUSION ............................................................................... 130
CONTENTS
Special Convocation
for the conferment of the Degree of
DOCTOR OF LAWS
(Honoris Causa)
and
by
His Excellency
Francisco Jose Hernando Santiago
President, Supreme Tribunal and General Council
of the Judiciary of the Kingdom of Spain
Invocation
HONORABLE MINITA V. CHICO-NAZARIO
Associate Justice, Supreme Court of the Philippines
Opening Remarks
HONORABLE DANTE O. TINGA
Associate Justice, Supreme Court of the Philippines
Reading of Citation
MRS. ANTONIETA FORTUNA-IBE
Chancellor, Manila Campus, University of the East
Investiture
Placing of the Academic Hood and Cap
DR. ESTER ALBANO-GARCIA
DR. NENALYN P. DEFENSOR
Commissioner, Commission on Higher Education
LECTURE
HIS EXCELLENCY FRANCISCO JOSE HERNANDO SANTIAGO
Panel of Reactors
Closing Remarks
HONORABLE REYNATO S. PUNO
Chief Justice
Masters of Ceremonies
PROFESSOR MERCY L. CANDELARIA
PROFESSOR RENE S. SALVANIA
College of Arts and Sciences-Manila, University of the East
O PENING R EMARKS ∗
Justice Dante O. Tinga∗∗
I
n behalf of the Supreme Court of the Philippines
and the Philippine judiciary, I extend a hear ty
Mabuhay and warmest greetings to our esteemed
guest, His Excellency Francisco Jose Hernando Santiago,
President of the Supreme Tribunal and General Council
of the Judiciary of Spain. Also, in behalf of my fellow
alumni on the University of the East, I welcome him to this
hallowed campus. Bienvenido a todos!
∗
Delivered at the First Distinguished Lecture, Series of 2008, held
on February 20, 2008, at the University of the East, Manila.
∗∗
Justice Dante O. Tinga was appointed to the Supreme Court on
July 4, 2003. At the time, he was the dean of the College of Law
of the Polytechnic University of the Philippines.
He represented the lone district of Taguig-Pateros in the House of
Representatives for three consecutive terms from 1987 to 1998. As
a Congressman, he served as House Majority Whip for Luzon from
1992 until 1998 and Speaker’s Deputy in the Committee on Rules
from 1995 to 1998. As Committee Chair on Energy (1992-1998)
he crafted the Power Reform Bill which served as the model of the
current Electric Power Industry Reform Act (EPIRA). As Chair
on Corporations and Franchises (1987-1992), he liberalized the
telecommunications industry, paving the entry of all the current
major players. During his three-year term, he also became vice
chairman of the House Committee on Good Government and was
a ranking member of the House Committees on Natural Resources,
Justice, Constitutional Amendments, Appropriations and Ways and
Means. He was consistently chosen as an outstanding congressman
by various publications and periodicals.
6 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
At this time, in the last part of the lesson, I will refer to, in
particular, the principal reforms undergone by the Spanish Civil
Code of 1889. In order to do so, I will make use of two
classification criteria. On the one part, I shall proceed from the
basis of the division of time of operation of our Code into three
historical periods in terms of certain key milestones of the recent
history of Spain. The first period is from its promulgation to
1936 when the Spanish Civil War began, which meant the
breakdown of the state to be substituted by a totalitarian
government. The second period covers the life of the Civil Code
of 1936 until the arrival in 1978 of the constitutional monarchy
currently in force. The third period covers the length of time
that the Constitution of 1978 has been in force. On the one
hand, I will refer to the reforms of its own articles, that is to say,
the modification of its own standards by substituting old
provisions for newer ones integrated in the Code itself. On the
other hand, the reform of the Civil Code is performed from
outside the Code, that is to say, subsequent to the publication of
specific and implementing laws from a practical viewpoint, which
have steadily repealed some of the legislation originally provided
for in the Civil Code.
intention was for the testator’s wishes to have precedence over the
specific form of the document which contained his last wishes,
whereas the essential elements of the will were provided for. The
second reform having great social relevance limited the law to
inherit, in the absence of a will, to persons related collaterally to
the fourth degree. This was reformed in 1928 and the purpose
was to reduce the amount of controversy where the deceased’s last
wishes were not expressly provided for. Aside from these reforms,
the reform in August of 1899 which modified Article 1108 on
the statutory rate of interest should be pointed out. It can,
therefore, be said that the decennial review of the Civil Code was
not met and that the Code enjoyed great stability.
Of the provisions laid down by law which complement the
Code and belong to the aforementioned first period, the Law of
July 23, 1908, on loans at an unconscionable rate of interest and
on unreasonable loans, as an assurance for the weaker contracting
party, and another law in 1917, which provided for registered
agricultural liens, such as many provisions referring to labor
legislation and on agricultural tenancy and rented property,
especially during the Republican period from 1931 to 1939,
should be pointed out as to their interest. Also, during this period
a number of rules in family law was laid down, which would be
repealed by the state arising from civil war and affected, in particular,
that concerning marriage, in so far that divorce was regulated for
the first time in Spain.
from the Code. In 1990, the Code was reformed by the application
of the principle of non-discrimination, which implied the
substitution of the word “wife” for “spouse” in many provisions.
In 1991, wills were modified. In 1996, the law on the protection
of the child modified the legislation of the Civil Code on food,
abandonment, and placement of children. And in 1999, it was
modified concerning forenames and order of surnames.
The publication of the Code of Civil Procedure in 2000
was important, and which set out to eliminate all of the procedural
references of the Code by repealing anything concerning the rules
of evidence of foreign law, the rules of procedure concerning
parentage and eligibility, and those concerning the burden of proof.
Over the past years, three more important reforms are
highlighted in the scope of family law. In 2003, novelties to
benefit disabled people were introduced in relation to the
inheritance legislation. In the same year, the Code was being
modified concerning separation and divorce, by making compliance
dependent on the relationship coming to an end, in addition to
legal grounds, on the basis only of a voluntary act on the part of
contracting parties. The most recent reform as of this past
December modified Article 154 of the Civil Code by qualifying
the authority of parents to make physical corrections on their
children.
Together with these domestic reforms of the Code is a large
number of modifications contained in the complimentary rules
over the past 30 years, affecting very diverse matters such as
insurance contracts in 1980; the protection of honor, privacy
and personal reputation in 1982; arbitration in 1998 and 2003;
residential letting in 1994; industrial and intellectual properties;
patents and consumers, among many others, as required by
28 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
3
Agustin v. CA, G.R. No. 162571, June 15, 2005.
4
In Re: The Writ of Habeas Corpus for Reynaldo de Villa, G.R.
No. 158802, November 17, 2004.
36 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
It is yet early to tell precisely and exactly how the law would
lend itself to the inevitable in the many more generations to come;
if today, we are still unsure, how do we then aptly grasp tomorrow.
Marvin Minsky, said to be the father of artificial intelligence, has
once bluntly remarked to our great discomfort, I am sure, that
“We should be lucky enough if the new machines would be willing
to keep us, human beings, as household pets.”
I most certainly join the call to alertness suggested by His
Excellency in looking forward and doing some recalculations even
as we pay tribute to the men and women who have provided us
with the foremost two legal systems that today are still intact in
good measure.
Thank you.
REA CTIONS ON THE R EFORM
EACTIONS
OF THE S PANISH C IVIL C ODE:
BASIS AND C ONTENT ∗
∗
Delivered at the First Distinguished Lecture, Series of 2008, held
on February 20, 2008, at the University of the East, Manila.
∗∗
Justice Ricardo C. Puno, Sr. served in all three branches of the
government: District Judge of the Court of First Instance, Associate
Justice of the Court of Appeals (1973-1978), Representative of
the National Capital Region (NCR) to the Batasang Pambansa
(1978-1984), and Minister of Justice (1979-1984). He obtained
his Bachelor of Arts degree summa cum laude from the Ateneo de
Manila University and his law degree (magna cum laude and class
valedictorian) from Manuel L. Quezon University. He also earned
the titles Doctor of Laws (1981), Doctor of Humanities (1982),
and Diplomate in Juridical Science (2005). He practiced law and
taught at leading law institutions of the country. Being an expert in
civil law, he appeared as amicus curiae before the Central District
Court of California and the Supreme Court of the Philippines.
He was bar examiner in civil law and remedial law and was co-
chair of the Civil Code Revision Committee that drafted the New
2009] REACTIONS ON THE REFORM 39
OF THE SPANISH CIVIL CODE: BASIS AND CONTENT
1
Mijares v. Nery, 3 Phil. 195 (1904).
2009] REACTIONS ON THE REFORM 41
OF THE SPANISH CIVIL CODE: BASIS AND CONTENT
took effect, and replaced the Civil Code of Spain. The third period,
which has witnessed and still undergoes radical changes in the
original Book One of the Philippine Civil Code governing Persons
and Family Relations was begun by the promulgation of the
Family Code of the Philippines which took effect on August 3,
1988.
The coincidental parallelism is quite obvious:
Spanish Civil Codal System Philippine Civil Codal System
First Period: 1889 to 1936 First Period: 1889 to 1950
Second Period: 1936 to 1978 Second Period: 1950 to 1988
Third Period: 1978 to the Third Period: 1988 to the
present present
The ties that bind Spain and the Philippines are enduring
and find constant recognition in international concourses and
global interactions.
As a member of the Philippine Delegation to the United
Nations General Assembly from 1978 up to 1984, I recall that
the Philippines was an accredited member of the huge Hispanic
group of Spanish speaking countries of Europe, Central and
South America.
When I was sent by our Government as the first Philippine
representative to attend the Appellate Judges Seminar of the
American Institute of Judicial Administration in New York City
in 1974, I found myself identified with the Justices of the Civil
Law States led by California, Louisiana and New Mexico in their
spirited debates with the more numerous common Law States.
President Hernando Santiago concluded with the assurance
that the reforms in Spanish Civil Law system have been assured
effective compliance by the companion reforms in Spanish
Procedural Law.
We must all acknowledge at this point that our Remedial
Law is a mixture of two cultures – the Spanish and American
procedural systems. Grateful appreciation is due to both
predecessors.
I was made fully aware of this debt of gratitude when I was
invited to lecture on the subject of Criminal Justice at the
International Session of the United Nations, Asia and Far East
Institute in Tokyo, Japan, in March 1982. In one session, a spirited
debate erupted on the subject of preliminary investigation. The
delegate from France argued that his country’s police investigation
was the most expeditious. The American representative contended
44 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
they have made and values they have adopted. Tradition thus has
the capacity to teach us from where we have come, and to cast
light on where we may go. It can enrich our understanding of our
own world by allowing us to see the possibilities, the consequences,
6
Ibid.
Supreme Court of the Philippines
Philippine Judicial Academy
in cooperation with the
Pontifical and Royal University of Santo Tomas
(The Catholic University of the Philippines)
present
by
Greetings
PROFESSOR ROBERTO A. ABAD
Officer in Charge, Faculty of Civil Law
University of Santo Tomas
Opening Remarks
HONORABLE LEONARDO A. QUISUMBING
Senior Associate Justice, Supreme Court
Musical Intermission
UST CONSERVATORY OF MUSIC
LECTURE
Justice Edward Taihakurei Durie, DCNZM (Ret.)
Panel of Reactors
Closing Remarks
HONORABLE REYNATO S. PUNO
Chief Justice
Master of Ceremonies
HONORABLE ADOLFO S. AZCUNA
Associate Justice, Supreme Court
O PENING R EMARKS ∗
M
r. Chief Justice, Honorable Reynato S. Puno;
Reverend Rector Magnificus, Father Rolando V. dela
Rosa, and Regent Father Maximo Gatela, and our
Hosts Professor Roberto A. Abad here in the University of Santo
Tomas
Our Highly Esteemed Lecturer from New Zealand
Our Colleagues in the Court and in the government service
Distinguished Guests
Members of the Faculty
Fellow Students
Ladies and Gentlemen.
∗
Delivered at the Second Distinguished Lecture, Series of 2008, held
on March 10, 2008, at the University of Santo Tomas, Manila.
∗∗
Senior Associate Justice Leonardo A. Quisumbing was born in
Masbate, Masbate. He obtained his Ll.B. degree in 1964 from the
University of the Philippines, and was awarded a Master of Laws
degree in 1969 by the Cornell University as a NEC-AID Grantee.
As a student, he was a college scholar, president of the UP Student
Council, editor in chief of The Philippine Collegian, president of
the Student Councils Association of the Philippines, and member
of the National Debating Team to Australia that won the Wilmut
Cup. He capped his achievements by placing 12th in the 1966 Bar
Examinations. At the MLQU, he edited The Quezonian and
graduated magna cum laude, A.B. Journalism. He has been awarded
four honorary doctorate degrees in law, public administration, and
humane letters.
60 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
Justice Ed
Edw war d Taihakur
ard aihakurei ei Durie
Durie,
a member of the Distinguished New
Zealand Order of Merit for his services
to the Maori Land Court, Waitangi
Tribunal and New Zealand High
Court, was appointed a High Court
Judge in 1998. In 2004, while
continuing to serve as judge, he was
appointed as a New Zealand Law
Commissioner. As Commissioner he
proposed a legal framework for the
management of tribal organizations, and
also for the development of legal
systems in Pacific states, and judicial
and constitutional strategies for
Maori land law as an adviser to the New
managing the interface of Pacific
Zealand Maori Council.
custom law, state-made law, and human
rights. He obtained his law degree from
Victoria University of Wellington and
In 1980, he was appointed Chief
received honorary degrees from Victoria
Judge of the Maori Land Court and
University, Massey University, and
then as Chairperson of the Waitangi
Waikato University.
Tribunal, a body to hear Maori claims
against the Crown in respect of historic In 2006, while in Manila to speak
losses and current policies – his main at the Liberty and Prosperity Forum, he
focus for the next 20 years. Previously, took part in workshops with the
in 1974, as a judge of the Maori Land Government, civil society, indigenous
Court, he was involved in the reform of groups, and MILF on indigenous issues.
∗
Delivered at the Second Distinguished Lecture, Series of 2008,
held on March 10, 2008, at the University of Santo Tomas, Manila.
64 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
I
t is a great honor to address this Academy. I acknowledge
the senior level at which the Academy is operated, as befits
its critical role in judicial education and in maintaining the
ethical conventions and constitutional standards necessary for good
governance.
I. I NTRODUCTION
NTRODUCTION
This address will refer to the law and indigenous peoples in the
context of indigenous Maori of New Zealand, of whom I am a
member. The Maori are reputed to have come from Asia’s outer
islands on the Pacific rim. They represent the final stage of that
oceanic migration by which the Pacific was populated. So with
you at one end of the South Pacific and Maori at the other, I am
hoping we can stake a claim to the ancestral title of the Pacific as
the Alpha and the Omega of the Pacific peoples.
Today, our countries share a commitment to certain values
of increasing universality. I refer to the concept of the rule of
law. I refer as well to the ethic of judicial independence and
acknowledge in so doing, the leadership of your Chief Justice,
2009] THE JUDICIAL ADMINISTRATION 65
OF INDIGENOUS AFFAIRS IN NEW ZEALAND
the right to every part of the country has now been determined
and secure titles have been given for the lands, Maori lands or
otherwise, now in private ownership.
Third, the history of warfare and of Maori land losses came
to weigh on the national conscience. The result was specific
legislation to prevent the same thing happening again in the future.
The legislative reforms began in earnest in the 1860s, with
legislation to establish the Maori Land Court to determine the
true owners of Maori land before the land was purchased. The
old system whereby the government purchased from those whom
the government decided were the true owners was too open to the
temptation that government would prefer as owners those who
were willing to sell. It was precisely a claim of that kind that had
led to the New Zealand wars.
The next strategy, which came later, was to expand upon the
functions of the Maori Land Court to protect Maori in the
ownership of such land as remained and to empower them to
make the best use of it, for their sake, and for the sake of the
national economy. Legislation directed to those ends was
introduced in the 19th century and dominated Maori policy in
the first half of the 20th century.
The final strategy did not develop until the second half of
the 20th century. It was a strategy to provide the tribes with some
compensation, in the form of land returns and cash. The broad
objective may be seen as one of securing to each of the main
tribal groups a sufficient endowment for the tribes’ future needs,
including a financial backing for the perpetuation of the culture,
and the engagement of tribal members in productive industries.
70 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
The Maori Land Court was the first specialist tribunal. Its origins
have already been described. Its functions developed over time
but included these:
• To determine the precise ownership of those lands that
had not previously passed to the government;
• To maintain an oversight of the necessary steps to survey
those lands and obtain secure titles;
• To supervise all proposed alienations, whether by sale,
lease or otherwise, to ensure that they were demonstrably
in the interests of the Maori owners; and finally
• To develop sound legal entities to manage the lands on
behalf of the several owners having regard to both cultural
and commercial imperatives.
While this court, first established in 1862, has been subjected
to much and often justified criticism over the many years of its
operations, it served to provide a great deal of protection for
Maori people in the ownership, use, and retention of their lands
and to advance the peoples’ development.
2009] THE JUDICIAL ADMINISTRATION 71
OF INDIGENOUS AFFAIRS IN NEW ZEALAND
IV
IV.. T HE W AITANGI T RIB
AITANGI UN
RIBUN AL
UNAL
The second tribunal was not established until 1975, and was not
significantly operative until after 1980. This is known as the
Waitangi Tribunal. It was established to hear Maori claims that
they are or have been prejudiced by the state policies or practices
which are contrary to the principles of the Treaty of Waitangi,
which I have mentioned; and where the Tribunal considers those
claims to have been proven, to recommend to government the
steps which might be taken to compensate for or remove that
prejudice.
Accordingly, the Tribunal serves to examine both current state
policies, legislative or administrative, and the historic policies by
which Maori suffered their major resource losses.
In some cases on the settlement of historic claims, the Tribunal
may go further than that of merely recommending. It may order
that certain former state assets, including former state farms and
forests, be transferred to tribal ownership. But so far it has not
been necessary to make those orders. Government has negotiated
with the tribes to achieve substantial and comprehensive
settlements from which the tribes have been able to advance.
Claims in respect of more than half the country have now been
settled.
Those settlements have not been limited to land matters. The
first major settlement concerned Maori fishing interests. It resulted
in Maori tribes owning some 40 percent of the New Zealand
Fishing Quota and buying into the infrastructure of the New
Zealand fishing industry.
72 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
V. T RIB AL C ORPORA
RIBAL TIONS
ORPORATIONS
Why did New Zealand opt for such a hands-on role for judges in
Maori administration? Elsewhere in the world such matters have
been handled by government bureaucracies.
Sometimes it seems that the New Zealand system developed
by chance rather than design, as a pragmatic response to particular
concerns as they arose. But I also suspect that notwithstanding
that for a long time the Treaty of Waitangi was overlooked in the
administration of New Zealand, there was an underlying
appreciation that indigenous people do have rights, social,
2009] THE JUDICIAL ADMINISTRATION 73
OF INDIGENOUS AFFAIRS IN NEW ZEALAND
VII. S YNOPSIS
T
his is the second time that the Honorable Taihakurei
Durie has visited the Philippines to share with us his
wisdom. The first time was two years ago when he
participated in a video conference during the Liberty and
Prosperity Forum hosted by former Chief Justice Artemio V.
Panganiban. While in Manila for that Forum, Justice Durie took
part in a number of workshops with our Government, civil society,
indigenous groups, and the Moro Islamic Liberation Front on
indigenous issues, particularly ancestral domain. He is recognized
as an expert on indigenous people in the Asia-Pacific region. I
would like to thank him for following through with the work he
started two years ago. His lecture today on New Zealand’s
experience of resolving indigenous and land issues in the context
of a treaty settlement process imparts invaluable insight that will
greatly benefit us in our efforts to ameliorate the lot of our
Indigenous Peoples. We also thank the Panel, Professor Sedfrey
M. Candelaria, Dr. Maria Liza-Lopez Rosario, Secretary Rodolfo
Garcia for their enlightening comments on the lecture of Justice
Durie.
Eleven years ago, our Congress enacted a law that sought to
correct a grave historical injustice to our indigenous peoples. The
∗
Closing Remarks delivered at the Second Distinguished Lecture,
Series of 2008, held on March 10, 2008, at the University of Santo
Tomas, Manila.
78 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
law was Republic Act No. 8371, more popularly known as the
Indigenous Peoples’ Rights Act of 1997, or the IPRA. It came as
a welcome daybreak to end the long night of the centuries-old
neglect of our indigenous peoples.
Republic Act No. 8371 was meant to break the common
thread in our legal and social systems that forced the marginalization
of our indigenous peoples. History reveals that like the Spaniards,
the Americans pursued a policy of assimilation of our indigenous
people. After the Philippines gained independence, our Congress
adopted a policy of integration, which was like the colonial policy
of assimilation understood in the context of a guardian-ward
relationship. These attempts towards assimilation and integration
did not succeed as they were met with fierce resistance from our
indigenous Filipinos.
The result was a paradigm shift in the 1973 Constitution. It
provided the guide that “The State shall consider the customs,
traditions, beliefs, and interests of national cultural
communities in the formulation and implementation of State
policies.” The 1987 Constitution ggooes fur ther than the 1973
further
Constitution by expressly guaranteeing the rights of tribal
Filipinos to their ancestral domains and ancestral lands lands.
By recognizing their right to their ancestral lands and domains,
the State has effectively upheld their right to live in a culture
distinctly their own.
This change in policy from assimilation and integration to
recognition and preservation is statutorily implemented by the
IPRA. In synopsis, the IPRA recognizes the existence of
indigenous peoples as a distinct sector in Philippine society. In
doing so, it provides for their civil, political, social and cultural
rights, acknowledges a general concept of indigenous property
2009] THE IPRA: INDIGENOUS PEOPLES 79
AND THEIR RIGHTS
rights and their title thereto, and creates the National Commission
on Indigenous Peoples as its independent implementing body.
Despite all the noble intentions, the enactment of the IPRA
has not stopped the injustices suffered by our indigenous peoples.
In the hinterlands, armed rebel groups recruit our indigenous
people’s youth to be child soldiers; powerful politicians use armed
mercenaries to burn their villages and grab their lands; and large
corporations and mining companies intrude into their unprotected
communities1 in the mindless pursuit of profit.
The world has taken cognizance of the plight of indigenous
peoples. The United Nations General Assembly, of which the
Philippines is a member, has adopted the United Nations
Declaration on the Rights of Indigenous Peoples. Many of the
rights declared in that instrument, particularly “the right not to
be subjected to forced assimilation or destruction of their culture,”
reinforce the rights granted by the IPRA. Be that as it may, there
are rights in that Declaration that are not yet afforded to our
indigenous peoples. For example, the Declaration established the
right of indigenous peoples to have their cultures, traditions,
histories and aspirations “appropriately reflected in education and
public information.” The Declaration also calls on States not
only to “take effective measures to ensure that State-owned media
duly reflect indigenous cultural diversity,” but also to “encourage
privately owned media to adequately reflect indigenous cultural
diversity.” We have yet to push flesh to these aspirations.
The histories and cultures of the indigenes all over the world
are relevant to the evolution of Philippine law and culture and
1
Howard Dee, Justice for Our Indigenous Filipinos , 4 PHILJA
JUDICIAL JOURNAL 13, 15 (2002).
80 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
present
by
Greetings
DEAN MIGUEL M. CARPIO
Acting Vice President for Academic Affairs
Far Eastern University
Opening Remarks
HONORABLE PRESBITERO J. VELASCO, JR.
Associate Justice, Supreme Court
Musical Intermission
FEU CHORALE
LECTURE
AMBASSADOR LAURO L. BAJA, JR.
Panel of Reactors
Closing Remarks
HONORABLE REYNATO S. PUNO
Chief Justice
Master of Ceremonies
HONORABLE ADOLFO S. AZCUNA
Associate Justice, Supreme Court
O PENING R EMARKS ∗
Justice Presbitero J. Velasco, Jr.∗∗
C
hief Justice Reynato S. Puno
Esteemed Colleagues from the High Court, both past
and present
Madame Chancellor Ameurfina A. Melencio Herrera
Ambassador Lauro L. Baja
Distinguished Guests
Ladies and Gentlemen.
If there is one obvious thing we have in common, it is that we
belong to, cherish, and serve the same country. To borrow from
and paraphrase Seneca, we love the Philippines not because of its
size or eminence, but because it is our own.
∗
Opening Remarks delivered at the Third Distinguished Lecture, Series
of 2008, held on June 27, 2008, at the Far Eastern University,
Manila.
∗∗
Born on August 8, 1948, in Pasay City, Justice Presbitero J. Velasco,
Jr. is a product of the public school system. He went to J. Sumulong
Elementary School (First Honorable Mention) and the University
of the Philippines (UP) Preparatory School, respectively, for
elementary and high school. He obtained his Bachelor of Arts
Degree in Political Science from UP, finishing the course in only
three years, and went on to take up his Bachelor of Laws from the
same university. At the UP College of Law, Justice Velasco was a
member of the Order of the Purple Feather Honor Society and
served on the Editorial Board of the Philippine Law Journal. He
graduated eighth in the class of 1971 and placed sixth in the Bar
exams that same year. He engaged in private law practice for 20
years before becoming a regular member of the Judicial and Bar
86 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
firmness, and includes Sabah over which the Philippines had filed
a formal claim.1
Lastly, the 1987 constitutional definition of the country’s
territory, although seemingly delimiting in operation, does not in
any way prevent us from acquiring additional territory in the
future through modes permissible under international law, such
as exchange or purchase, assuming we have the bent, not to mention
resources, to acquire additional territory.
As may be noted, the 1987 definition of national territory
clearly points to the Philippines as an “archipelagic state.” An
archipelago, as its most basic, means a group of islands and
interconnecting waters forming a territorial, political or economic
whole. It may be noted too that the Philippines in the 1987
Constitution makes particular ownership claim over its internal
waters – meaning the waters around, between, and connecting the
islands of the archipelago, irrespective of their breadth and
dimensions. The assertion over internal waters articulates the
archipelagic doctrine of national territory.2 As an aside, while the
24,000 islands of Sweden certainly outnumber our 7,100 islands,
we can brag that our country is one of the largest archipelagos
with an area of 300,440 square kilometers and discontinuous
coastline of 300,500 kilometers. For sure, we should assert our
dominion over this large expanse as a rich source of natural
resources.
1
Fr. Joaquin Bernas, S. J., The Constitution of the Republic of the
Philippines, 1996 ed., p. 16.
2
Fr. Joaquin Bernas, S. J., The Constitution of the Republic of the
Philippines, 2003 ed., pp. 10-11.
90 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
3
Id. p. 3.
4
On November 16, 1994.
2009] OPENING REMARKS 91
∗
Delivered at the Third Distinguished Lecture, Series of 2008, held
on June 27, 2008, at the Far Eastern University, Manila.
94 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
I. I NTRODUCTION
NTRODUCTION
I
am honored by the invitation of the Philippine Judicial
Academy of the Supreme Court of the Philippines to
participate in their Third Distinguished Lecture and discuss
with you the topic Metes and Bounds of Philippine Territory. I
am awed at the high level at which the Academy is operated and
by its mission which in the words of the Chief Justice is “to
deepen and broaden our understanding of the law by considering
the realism and the pragmatism of contemporary principles and
the theoretical and transcendental issues and that will complete
our vision of what the law is and ought to be.”
The subject is important as it is relevant. It is important to
have an inventory of what we hold in common and know what
we are and where we are as a nation. Knowing the metes and
bounds of our national territory gives the nation a sense of self,
and would help the Government and other countries especially in
cases where there would be negotiations on overlapping maritime
regimes.
IV
IV.. A RCHIPELA GIC S TATE
CHIPELAGIC
VI. B ASELINES
The islands are considered part and parcel of the Republic of the
Philippines by virtue of Presidential Decree 1596 of 1978. The
Decree was registered with the UN Secretariat on May 14, 1980.
The Kalayaan Island Group is part of the Spratly Group of
Islands. As we know, China, Taiwan, and Vietnam claim the entire
Spratlys. All claimants, except Brunei, occupy parts of the Spratlys.
Kalayaan is a fifth class municipality of Palawan composed of
seven islands, namely:
1. Pag-asu – 32.2 hectares
2. Likas – 18.6 hectares
3. Parola – 12.7 hectares
4. Lawak – 7.9 hectares
5. Kota – 6.45 hectares
6. Patag – 0.52 hectares
7. Panota – 0.44 hectares
The KIG adds to the Philippines exclusive economic zone,
an area of 360, 850 square nautical miles.
That the Spratly Group of Islands, to which the KIG is a
part, is claimed by other countries should reinforce rather than
deter our determination to include the Kalayaan in drawing our
baselines. The KIG is the most strategic area in our exclusive
economic zone, significant in terms of food, energy, navigation,
trade and security. It is our national heritage, as the book edited
by Porfirio Aliño and Christine Quibilan aptly describes in detail
the dynamics of the islands.
We must formulate policies and adopt measures which will
not diminish that heritage. To exclude Kalayaan and just say we
2009] THE PHILIPPINE NATIONAL TERRITORY 105
are not abandoning our claim to the islands is empty rhetoric and
does violence to common sense. An unlikely diplomatic fallout
by including KIG in our baselines should not unduly worry the
Philippines. Nor should we entertain the bogey of war erupting
over this issue.
Notes verbale and aide memoires are SOP noises, required in
international relations, especially among claimant countries. We
should be doing the same. In foreign relations, silence is not
golden all the time. Let us note that the signals which come
from outside which gave the leadership of the country feet of
clay in drawing our baselines are mere talking points, if reports
are accurate.
Kalayaan and baselines are current challenges to Philippines
Diplomacy. The Department of Foreign Affairs (DFA) should
restore and renew being primus inter pares on foreign policy issues
and be confident, consistent and committed in its advocacies of
policies. There is a time for niceties and politesse and a time to be
proactive, forceful, and aggressive in international relations. To
be timid and pursue a serendipitous approach on Kalayaan and
baselines can be perfect diplomatic storm of irrelevance for the
Department. There is no greater tragedy for an institution than
to find itself, too late, that it has become irrelevant because of
inaction and/or timidity.
These thoughts should apply to our attitude towards the
Tripartite Agreement for Joint Marine Seismic Undertaking
(JMSU). The issue is sub judice. It is, however, relevant to note
that the area of JMSU falls within our EEZ; that seismic activities
are precursors of exploration and exploitation of natural resources;
that the undertakings were signed by the oil authorities of the
three countries, and that if reports are true, one of the parties
106 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
I. I NTRODUCTION
NTRODUCTION
∗
Delivered at the Third Distinguished Lecture, Series of 2008, held
on June 27, 2008, at the Far Eastern University, Manila.
∗∗
Atty. Jay L. Batongbacal obtained his Bachelor of Arts in Political
Science (1987) and Bachelor of Laws (1991) degrees from the
University of the Philippines, and his Master of Marine
Management degree (1996) from the Dalhousie University in
Canada. He is also a Doctoral Candidate at the Dalhousie Law
School.
2009] REACTIONS ON THE METES AND BOUNDS 109
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
friends, I had arranged for this senior member to meet with Justice
Feliciano on the first day of our workshop, and it was during that
meeting that he informed us of this Distinguished Lecture.
Subsequently, I was asked to come to this symposium to deliver
some remarks because since 1996, I have also been studying many
aspects of international marine law, particularly concerning the
Philippines and the International Law of the Sea.
At the outset, I would like to clarify that, contrary to what
you may have read in the newspapers, there is no deadline for
submission to the United Nations of the metes and
bounds of the national ter ritor ritoryy . There is no treaty,
convention, or other agreement stating this is to be done. What
the May 13, 2009 deadline refers to is the submission of technical
and scientific information on the outer limits of the continental
shelf beyond 200 nautical miles
miles, for countries intending to
make such a claim, pursuant to Article 76 of the United Nations
Convention on the Law of the Sea (UNCLOS).1 The deadline
is mentioned in Annex I1 of the UNCLOS, which was originally
2
United Nations. Report of the Eleventh Meeting of State Parties,
Paragraph 81, UN Doc. SPLOS l73 (June 14, 2001).
2009] REACTIONS ON THE METES AND BOUNDS 111
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
Figur
Figuree 1. Philippine national boundaries sho wn in of
shown offficial
Philippine maps
As shown in Figur
Figuree 22, we first see the limits of the original
Treaty of Paris of 1898 between the US and Spain,5 which
apparently omitted to enclose islands to the North and the
4
See J. Batongbacal, The Maritime Territories and Jurisdictions of
the Philippines and the United Nations Convention on the Law of
the Sea. 76 Philippine Law Journal 2, Quezon City, Philippines,
December 2001, pp. 123-168.
5
Treaty of Peace between the United States of America and the
Kingdom of Spain, Paris, France, December 10, 1898, Article 111.
2009] REACTIONS ON THE METES AND BOUNDS 113
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
Southwest areas of the country. It was because of this omission
that a second treaty, the Treaty of Washington, was signed in 1900
to clarify that these islands that were not within the Treaty of
Paris limits were also ceded to the US by Spain.6 Then in 1930,
the United States and the United Kingdom executed a Convention
to further clarify the division of the islands between their respective
colonies in the area off the northern coast of Borneo.7 When the
1935 Constitutional Convention debated the article on the
national territory, it was noted that the non-inclusion of parts of
the Batanes Islands in the North were due to the technical
description which located the line at the 20th parallel, however, it
was described as running through the Bashi Channel which was
located just above the 21st parallel. It was thus proposed to
unilaterally extend the Northern boundary to this location in the
article describing the national territory.8 This was not adopted in
the eventual wording of the 1935 Constitution, but has been
implemented in all official maps and charts issued by the
Philippines.9 Not shown in Figur Figuree 2 is the extent of the
continental shelf claimed by the Philippines since 1949.10
6
Sole Article, Treaty between the Kingdom of Spain and the United
States of America for the Cession of Outlying Islands of the
Philippines, Washington, D.C., November 7, 1900.
7
Convention between the United States of America and Great Britain
Delimiting the Boundary between the Philippine Archipelago and
the State of North Borneo, Washington, D.C., January 2, 1930,
Article I.
8
RECORD of the Constitutional Convention, Volume 11, Journal No.
21-40, in Lotilla, R.P. (Ed.) The Philippine National Territory,
Manila: UP Institute of International Legal Studies and Foreign
Service Institute, 1995, at pp. 168-258.
9
See NAMRIA 2006 and NAMRIA 2008, supra note 3.
10
Republic Act No. 387, The Petroleum Act of 1949, June 18, 1949,
Section 3, and Proclamation No. 370, Declaring as Subject to the
114 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
20
Declaring Certain Areas Part of the Philippine Territory and
Providing for Their Government and Administration, Presidential
Decree No. 1596 (1978), Sec. 1.
21
Establishing an Exclusive Economic Zone and for Other Purposes,
Presidential Decree No. 1599 (1978), Sec. 1.
2009] REACTIONS ON THE METES AND BOUNDS 117
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
Since other States are not bound by our laws, they may only
recognize maritime zones based on UNCLOS. Thus, as far as
the international community is concerned, the Philippines’
maritime zones are configured in the manner shown in Figur
Figuree 33.
Figure 3. Philippine maritime zones currently acceptable to the
international community
24
R. Aquino, and C. Grino, Law of Natural Resources, Manila: E.F.
David & Sons, 1957, at pp. 425-426.
25
Article 3, Treaty of Paris, 1898 states that:
Spain cedes to the United States the archipelago known as
the Philippine Islands, and comprehending the islands
lying within the following line x x x
while Article I, Convention between the US and Great Britain,
1930, states that:
It is hereby agreed and declared that the line separating
the islands belonging to the Philippine Archipelago on
one hand and the islands belonging to the State of North
Borneo which is under British protection on the other
hand shall be and is hereby established as follows x x x.
26
Sole Article, Treaty of Washington, 1930.
2009] REACTIONS ON THE METES AND BOUNDS 119
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
international community. What should be of concern to us is
that the international community’s current perspective leaves large
pockets of EEZs within the Philippines, between its component
islands, the largest being the Sulu Sea. Within the EEZ, foreign
States exercise high seas freedoms, while the Philippines only has
certain sovereign rights.
This need not be the case, however. Under Part IV of the
UNCLOS, the Philippines has the option of declaring itself to
be an Archipelagic State. This allows the Philippines to eliminate
the pockets of EEZs between its islands, and convert them into
archipelagic waters that are recognized to be under its sovereignty.27
Figur
Figuree 4 shows one possible configuration that this may
take.
Figur
Figuree 4. One possib le implementation of UNCL
possible OS P
UNCLOS ar
artt IV
Par
27
UNCLOS, Art. 49.
120 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
31
See Sections 7, 386, 442, 450, and 461, Republic Act No. 7160,
The Local Government Code of 1991, October 10, 1991.
2009] REACTIONS ON THE METES AND BOUNDS 123
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
Third, there is no need to “strengthen” sovereignty over the
Kalayaan Island Group because we have already been exercising
complete sovereignty over the area since the 1970s. It has been
continuously occupied and administered as a municipality of
Palawan, municipal elections are held annually for the area, and its
surrounding waters have been subject to Philippine control of
activities such as fishing, scientific research, and petroleum
exploration. To state now that we still need to “strengthen”
sovereignty may in fact be seen as a counterproductive admission
against interest that the Philippines believes that its sovereignty is
still imperfect and inchoate.
In connection with this, there are also those who assert that
the conduct of the seismic surveys under the Joint Marine Seismic
Undertaking (JMSU) somehow derogates or diminishes the
Philippines’ sovereignty over the Kalayaan Island Group. Since
the issue is sub judice, I cannot comment upon this in great detail.
But without dealing with the JMSU in particular, the question is
whether seismic surveys, which is a scientific method of
determining the nature and character of the seabed beneath, per
se, diminish or affect Philippine sovereignty. For that matter, it
could be considered whether scientific surveys conducted by
foreign States affect the status of sovereignty. FigurFiguree 5 is a
collection of the tracklines of not only seismic, but also
hydrographic, gravimetric, thermographic, chemical, and other
scientific surveys conducted by foreign institutes and vessels within
and around the Philippines. All the data from these surveys are
freely accessible from the internet.32 Aside from these, one must
32
See National Geophysical Data Center (NGDC), “Marine Geophysical
Trackline Data,” <http://www.ngdc.noaa.gov/mgg/geodas/trackline.html>
(last accessed June 25, 2008).
124 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
33
See for example, M. Magallona, “The UNCLOS and Its
Implications on the Territorial Sovereignty of the Philippines” in
World Bulletin, Vol. 11, Nos. 1-2 (Jan-April 1995) UP Institute of
International Legal Studies, UP Diliman, Quezon City (I995), pp.
50-76; M. Magallona, The Dismantling of the Philippine State
and Its Impact on Civil Society,” UP Institute of International
Law Studies, 1996; and M. Defensor-Santiago, Sponsorship Speech
for a Congressional Commission on National Territory, Philippine
Senate, May 21, 2008.
34
See Note Verbale, January 20, 1956, supra Note 22.
35
See for example, J. Morgan, and M. Valencia, Eds., Atlas for Marine
Policy in Southeast Asian Seas. Berkeley: University of California
Press, 1984. Also L. T. Ghee, and M. Valencia, Eds., Conflict over
Natural Resources in South-East Asia and the Pacific. Oxford,
New York, and Toronto: Oxford University Press, 1990.
126 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
36
National Center for Ecological Analysis and Synthesis (NCEAS), “Data:
Impacts,” <http://www.nceas.ucsb.edu/GlobalMarine/impacts> (last
accessed June 25, 2008).
2009] REACTIONS ON THE METES AND BOUNDS 127
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
IV
IV.. A RCHIPELA GIC B ASELINES
CHIPELAGIC
AND THE S OUTHEAST A SIAN R EGION
37
Declaration on the Conduct of Parties in the South China Sea.
Phnom Penh. November 4, 2002. Available from ASEAN website
<http://www.aseansec.org/l3163.htm> (last accessed June 25,
2008).
2009] REACTIONS ON THE METES AND BOUNDS 129
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
the Philippines itself spearheaded to prevent further complicating
the South China Sea disputes through the addition of artificial
structures in the area. By pushing our potential maritime spaces
further into the South China Sea than ever before, and enclosing
islands that are claimed by other States, the Philippines also ensures
that the new archipelagic baselines system will be subjected to
diplomatic protests by the other States, which directly undermines
any legal effect the baselines may have on foreign States. If the
new Philippine baselines are protested, then the maritime zones
they generate are again left in limbo and uncertainty, a situation
no better than what we had before. Moreover, in the long term,
politically and practically, the Philippines will find it extremely
difficult to negotiate any peaceful settlement of the territorial
issues since any compromise fixes our negotiating options to only
one single position. Legislating the maximalist position will only
complicate and prolong the territorial issues in the South China
Sea, and not contribute toward their settlement.
The executive position which encloses only the main
archipelago and leaves the Kalayaan lsland Group and Scarborough
Shoal as separate islands is indeed a minimalist position, and
minimizes changes to the status quo. But, it also has a better chance
in international law. It avoids protests that would jeopardize the
integrity of the baselines around the rest of the Philippine
archipelago. It limits the effect of such protests to the islands
themselves and thus permits the Philippines to exercise its
sovereignty and jurisdiction over other areas unhindered. It also
helps to rationalize and harmonize the configuration of the
Philippine maritime zones with international law in a manner
acceptable to the international community. Maintaining an island
regime around the Kalayaan lsland Group also provides more
flexibility in the long term to the Philippines in seeking the peaceful
130 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
V. C ONCL USION
ONCLUSION
From an international law perspective, the key issue for the country
is not how much maritime area will be enclosed, but which action
is more likely to be considered valid. Maritime sovereignty and
jurisdiction are not created by simply drawing on a map; they
must also be recognized and accepted by other States, in addition
to conforming to the rules and principles that have already been
agreed upon in UNCLOS. If not, then they will be continually
challenged and will never be settled. We shall never get any support
for them, and much of what we think we can do may be nothing
more than mere illusions. If we are to act in ways that affect other
members of the international community, or if we want them to
support our actions and strengthen our hand in the face of stronger
competitors, we simply cannot continue merely asserting things
without finding acceptance from the rest of the world.
But this is more than a question of international law. What
makes it most challenging for us is the fact that our use and
implementation of UNCLOS have unavoidable impacts on the
maritime zones of all our neighboring countries, and have definite
implications on the navigational interests of the rest of the world.
Enacting a new baselines law, whatever the final configuration,
will shape the geopolitics of the Southeast Asian region for years
to come, but not necessarily change the status of Philippine
sovereignty over the KIG or Scarborough Shoal. Whether a new
2009] REACTIONS ON THE METES AND BOUNDS 131
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
law perpetuates or aggravates the regional issues to spur further
contestation, or opens the door for cooperation and settlement, is
the international responsibility that attaches to its enactment. We
can choose to be a leader or a troublemaker; what happens in the
region has impacts on the rest of the world. This is the broader
national interest involved, and the true gravity of the act of
establishing our baselines. We decide not only the future of our
country, but that of Southeast Asia as well.
REA CTIONS ON W HY
EACTIONS
THERE IS AN I MMEDIA
MMEDIATETE N EED
TO E NACT A B ILL A MENDING
REPUBLIC A CT N O. 3046, AS A MENDED,
TO C ONFORM TO THE C ONVENTION
ON THE LAW OF THE S EA∗
I. I NTRODUCTION
NTRODUCTION
∗
Delivered at the Third Distinguished Lecture, Series of 2008, held
on June 27, 2008, at the Far Eastern University, Manila.
∗∗
Former Minister of Justice and Solicitor General Estelito P.
Mendoza was born on January 5, 1930, in Manila, Philippines. He
obtained his Preparatory and Legal Education from the University
of the Philippines in 1948, his Bachelor of Laws degree also from
UP in 1952, and his Master of Laws degree from Harvard
University in 1954.
1
See Article 1, 1935, 1973 and 1987 Constitutions.
2
Landlocked countries, of which there are 42 of the approximately
190 states, particularly have the problem.
2009] REACTIONS ON WHY THERE IS AN IMMEDIATE NEED 133
TO ENACT A BILL AMENDING RA NO. 3046
7
Declaring Certain Areas Part of the Philippine Territory and
Providing for Their Government and Administration, Presidential
Decree No. 1596, enacted on June 11, 1978.
136 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
IV
IV.. C ONCL UDING O BSER
ONCLUDING VATIONS
BSERV
∗
Closing Remarks delivered at the Third Distinguished Lecture, Series
of 2008, held on June 27, 2008, at the Far Eastern University,
Manila.
1
Sun Tzu, The Art of War 67-68 (Samuel Griffith, Trans., 1971).
2009] THE FOUNDATION OF THE STATE 145
2
Malcolm Shaw, International Law 409 (5th ed. 2003).
3
Id. at 410.
4
1982 United Nations Convention on the Law of the Sea, Art. 760
(7), in relation to Annex II, Art. 4.
5
See Vera Files, Arroyo neglect, government in-fighting jeopardize
RP’s territorial claim, Malaya, March 24, 2008.
146 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
8
See Alejandro Roces, More on Spratlys, Philippine Star, April 3,
2008.
9
See Lian Mito, The Timor Gap Treaty as a Model for Joint
Development in the Spratly Islands, 13 Am. U. Int’l L. Rev. 727,
728 (1998).
10
Brian Murphy, Dangerous Ground: The Spratly Islands and
International Law, 1 Ocean & Coastal L.J. 187, 188 (1995).
11
See Id., at 189.
12
Raul Ilustre Goco, Spratly Islands and Potential Legal Issues,
Philippine Star, March 29, 2008.
148 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
13
See Brian Murphy, Dangerous Ground: The Spratly Islands and
International Law, 1 Ocean & Coastal L.J. 187, 189 (1995).
Supreme Court of the Philippines
Philippine Judicial Academy
in cooperation with the
International Committee of the Red Cross
present
THE DEVELOPMENT OF
INTERNATIONAL HUMANITARIAN LAW
AND THE CONTINUED
RELEVANCE OF CUSTOM
by
Greetings
HONORABLE CONRADO M. VASQUEZ, JR.
Presiding Justice, Court of Appeals
Opening Remarks
HONORABLE ANTONIO EDUARDO B. NACHURA
Associate Justice, Supreme Court
Message
MR. FELIPE DONOSO
Head of Delegation, International Committee of the Red Cross
Musical Intermission
SUPREME COURT CHOIR
Introduction of the Lecturer
HONORABLE MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice, Supreme Court
LECTURE
DR. JEAN-MARIE HENCKAERTS
Panel of Reactors
HONORABLE ADOLFO S. AZCUNA
Associate Justice
Supreme Court
HONORABLE LEILA M. DE LIMA
Chairperson
Commission on Human Rights
Closing Remarks
HONORABLE REYNATO S. PUNO
Chief Justice
Master of Ceremonies
HONORABLE LEONARDO A. QUISUMBING
Senior Associate Justice
Supreme Court
G REETINGS ∗
T
he Honorable Chief Justice of the Supreme Court
Reynato S. Puno
Our guest lecturer, Dr. Jean-Marie Henckaerts
the Honorable Associate Justices of the Supreme Court
Madame Justice Ameurfina Melencio Herrera, Chancellor of the
Philippine Judicial Academy
Associate Justices of the Court of Appeals
Honorable Leila M. De Lima, Chairperson of the Commission
on Human Rights
International Community of the Red Cross Representatives
Mr. Felipe Donoso, Head of Delegation, International Committee
of the Red Cross
Distinguished Guests and Friends,
Dr
Dr.. JJean-Marie
ean-Marie Henc kaer
Henckaer ts
kaerts
ts, a legal
adviser in the ICRC Legal Division since
October 1996, is currently head of the
project on customary international
humanitarian law, and co-author of the
ICRC study on the subject. He was a
member of the ICRC delegation to the
Diplomatic Conference on a Second
Protocol to the 1954 Hague
Convention for the Protection of
Cultural Property in the Event of Armed
Conflict (The Hague, 1999). Before
joining the ICRC, he was a postdoctoral
research fellow at the University of
Brussels (1993-1996) heading its the University of Georgia (1990); and
Project on Strengthening Democracy Bachelor of Laws from the University
in Societies in Transition, while serving of Brussels (1989).
as legal assessment commentator for the
He has taught at the University
American Bar Association’s Central and
Centre for International Humanitarian
East European Law Initiative.
Law in Geneva and at Boston University
He obtained his Doctor of Brussels and Webster University Geneva.
Juridical Science degree from the He has lectured at various international
George Washington University Law fora, and published books and numerous
School (1994); Master of Laws from articles on his expertise.
∗
Delivered during the Fourth Distinguished Lecture, Series of 2008,
held on August 13, 2008, at the Court of Appeals, Manila.
Published in Howard M. Hensel (Ed.), The Legitimate Use of
Military Force: The Just War Tradition and the Customary Law of
Armed Conflict (Ashgate Publishing, Aldershot 2008), Chapter 5,
pp. 117-133.
156 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
I. I NTRODUCTION
NTRODUCTION
did exist but up until then, these rules were based mainly on
tradition and custom. It is fair to say, therefore, that humanitarian
law started as a body of customary rules and remained so for
centuries and that its codification is a much more recent
phenomenon.
The main milestones in the codification of humanitarian law
include:2
• 1864: First Geneva Convention protecting wounded and
sick soldiers
• 1907: Hague Regulations governing the means and
methods of hostilities
• 1925: Geneva Gas Protocol
• 1929: Two Geneva Conventions updating the protection
of wounded and sick and adding rules on the treatment
of prisoners of war
• 1949: Four Geneva Conventions updating the 1929
Conventions and adding rules on the protection of
civilians and on armed conflicts “not of an international
character” (common Article 3)
• 1954: Hague Convention and Protocols on the protection
of cultural property and two Protocols
• 1972: Biological Weapons Convention
• 1977: Two Protocols Additional to the 1949 Geneva
Conventions updating the rules on the conduct of
hostilities and on the protection of war victims and
providing the first international convention specifically
2
For a more complete overview, see <http://www.icrc.org/ihl>.
158 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
A. T he Requir
Requir ement of Ratif
equirement ication
Ratification
The first impediment, the need for treaty ratification, does not
affect the application of the four Geneva Conventions of 1949
since they have been universally ratified today. Nauru was the
last State to ratify the Geneva Conventions and with the entry
into force of the Geneva Conventions for Nauru on December
27, 2006, their applicability has truly become universal. The
Conventions are binding on all States as a matter of treaty law,
regardless of whether they are also part of customary international
law.
The impediment of ratification is rather relevant for those
treaties that are not universally ratified, such as the 1977 Protocols
Additional to the Geneva Convention, the 1954 Hague
Convention on the protection of cultural property in time of
armed conflicts and its two Protocols and the 1980 Convention
on Certain Conventional Weapons and its five Protocols.
For example, at the time of writing, March 1, 2007, the
ratification record of some of the principal treaties of
international humanitarian law was as follows:3
3
For a continuous update <http://www.icrc.org/ihl>.
160 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
B. T he Need ffor
or Characterization of Ar med Conf
Armed licts
Conflicts
The second impediment is that the characterization of an armed
conflict is required in order to determine which treaty law applies.
Depending on particular circumstances of an armed conflict, its
characterization as international or non-international will inform
the conclusion whether only common Article 3 or the entire body
of Geneva Conventions applies, whether Additional Protocol I
or Additional Protocol II applies and whether the grave breaches
and serious violations of humanitarian law in Article 8(2)(a)
and (b) of the Statute of the International Criminal Court are
applicable or whether the serious violations of Article 8(2)(c)
and (e) of the Statute are applicable. But the determination as to
whether the conflict is international or non-international can be
problematic in some cases. For example, the current conflicts going
on in and around the Democratic Republic of the Congo or the
conflicts in the former Yugoslavia are/were not easy to characterize
as international or non-international because in reality they are/
162 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
C. Rudimentar
udimentaryy Treaty La
Laww Go
Govver ning
erning
Non-Inter national Ar
Non-International med Conf
Armed Conflicts
licts
The third, and by far the most important, impediment to the
application of humanitarian treaty law is that it offers only a
rudimentary framework for the regulation of non-international
armed conflicts, in particular with respect to the conduct of
hostilities. Common Article 3 of the Geneva Conventions, the
only provision of the Geneva Conventions that is formally
applicable to non-international armed conflicts, does not as such
deal with the conduct of hostilities. In addition, Additional
Protocol II, to the extent that the State in question has ratified it,
does not deal with the conduct of hostilities and a number of
other issues in sufficient detail either. For example, unlike
Additional Protocol I, Additional Protocol II does not provide
for the obligation to distinguish between military objectives and
civilian objects. As a result, it does not contain any protection for
civilian objects in general, nor does it define civilian objects and
military objectives. This is problematic in practice because even
in non-international armed conflicts, armed forces (both State
armed forces and armed opposition groups) will actually be
required to limit their military operations to military objectives.
Additional Protocol II lacks other key provisions on the conduct
of hostilities as well, such as the prohibition and definition of
2009] THE DEVELOPMENT OF INTERNATIONAL 163
HUMANITARIAN LAW AND THE
CONTINUED RELEVANCE OF CUSTOM
18
These violations are listed as war crimes in international, but not
in non-international armed conflicts. See Statute of the
International Criminal Court, Rome, July 17, 1998, Article
8(2)(b)(ii) and (iv).
19
Statute of the International Criminal Court, supra note 18, Article
8(2)(e)(iii).
20
Statute of the International Criminal Court, supra note 18, Article
8(2)(e)(xii).
168 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
21
Statute of the International Criminal Court, supra note 18, Article
6(a)(i) (a contrario).
22
Second Protocol to the Hague Convention of 1954 for the
Protection of Cultural Property in the Event of Armed Conflict,
The Hague, March 26, 1999, Article 1(f).
23
Second Protocol to the Hague Convention of 1954 for the
Protection of Cultural Property in the Event of Armed Conflict,
supra note 22, Article 7 (containing a list of detailed precautionary
measures very similar to those listed in Article 57(2) of Additional
Protocol I).
24
Second Protocol to the Hague Convention of 1954 for the
Protection of Cultural Property in the Event of Armed Conflict,
supra note 22, Article 6(d).
25
Second Protocol to the Hague Convention of 1954 for the
Protection of Cultural Property in the Event of Armed Conflict,
supra note 22, Article 8 (containing a list of detailed precautionary
measures very similar to those listed in Article 58(a) and (b) of
Additional Protocol I).
2009] THE DEVELOPMENT OF INTERNATIONAL 169
HUMANITARIAN LAW AND THE
CONTINUED RELEVANCE OF CUSTOM
26
CCW, Protocol on Prohibitions or Restrictions on the Use of
Incendiary Weapons, Geneva, October 10, 1980, Article 2(1)
[hereinafter Protocol III].
27
CCW, Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby Traps and Other Devices, Geneva, October 10, 1980,
Article 2(4) [hereinafter Protocol II]; and Protocol III, supra note
26, Article 1(3).
28
CCW, Protocol II, supra note 27, Article 2(5); and CCW, Protocol
III, supra note 26, Article 1(4).
29
CCW, Protocol II, supra note 27, Article 3(3).
30
CCW, Protocol II, supra note 27, Article 3(3)(a)-(c).
31
CCW, Protocol II, supra note 27, Article 3(3)(c).
170 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
IV
IV.. P RA CTICAL R ELEV
RACTICAL ANCE OF C UST
ELEVANCE OMAR
USTOMAR Y
OMARY
I NTERN
NTERNA ATION AL H UMANIT
TIONAL ARIAN L AW T OD
UMANITARIAN ODAAY
A. Military Operations
Customary humanitarian law continues to be an important
framework for the conduct of hostilities, including in very recent
and current armed conflicts. This was the case, for example, during
the US invasion of Afghanistan in 2001 and of Iraq in 2003 as
neither Afghanistan, nor Iraq, nor the US are party to Additional
Protocol I. A similar situation prevailed during the 2006 conflict
between Israel and Lebanon, and particularly against Hezbollah
forces, as well as during the intervention in early 2007 of Ethiopian
and US forces in Somalia.
With respect to non-international armed conflict, customary
humanitarian law provides an important framework in both States
party to Additional Protocol II, such as Colombia, and a fortiori
in those not party to Additional Protocol II, such as Sri Lanka.
In these conflicts, State armed forces and, where applicable,
non-State armed groups, are bound to respect customary
humanitarian law. Customary humanitarian law will be an
important yardstick to be used by civil society in the States
concerned, as well as by third States and international organizations
in the exercise of their obligation to ensure respect for humanitarian
law.
2009] THE DEVELOPMENT OF INTERNATIONAL 175
HUMANITARIAN LAW AND THE
CONTINUED RELEVANCE OF CUSTOM
Finally, in coalition warfare, such as the current military
operations of the US and its partners in Iraq and the operations
of NATO member States in Afghanistan, as part of the
International Security Assistance Force in Afghanistan (ISAF),
customary humanitarian law represents common rules applicable
to all coalition partners. This stands in contrast to treaty
obligations which may vary greatly among coalition partners. Joint
operations must therefore comply with those common rules,
although individual partners may still have wider obligations under
the respective treaties they have ratified.
B. Fact-Finding
Since customary international law continues to be one of the
main legal frameworks in many armed conflicts, it is not surprising
that fact-finding missions related thereto also operate within that
framework. One example of this was the work of the International
Commission of Inquiry on Darfur in 2004-2005.42 As the
Commission reviewed facts related to the conflict in Darfur at a
time when Sudan was not yet a party to Additional Protocol II,
customary international humanitarian law applicable in non-
international armed conflicts was of particular relevance for the
work of the Commission. More recent examples include the report
of several special Rapporteurs of the UN Human Rights Council
and the Representative of the Secretary-General on Internally
Displaced Persons on their mission to Lebanon and Israel in the
wake of the 2006 conflict.43
42
See Report of the International Commission of Inquiry on Darfur
to the United Nations Secretary-General, pursuant to Security
Council Resolution 1564 of September 18, 2004, Geneva, January
25, 2005.
43
Report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions, Philip Alston; the Special Rapporteur on the
176 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
46
Israel, The Supreme Court Sitting as the High Court of Justice,
The Public Committee against Torture in Israel and others v. The
Government of Israel and others, December 13, 2006, HCJ 769/
02, paras 23, 29-30 and 41-42; see also references to the commentary
of the Study in paras 33-34 and 40 and 46.
47
See Theodor Meron, “The Revival of Customary Humanitarian
Law,” American Journal of International Law, Vol. 99, p. 817.
178 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
55
See A Guide to the Legal Review of New Weapons, Means and
Methods of Warfare: Measures to Implement Article 36 of
Additional Protocol I of 1977 , ICRC, January 2006, Revised
November 2006, pp. 13-14 and 16.
56
See Customary International Humanitarian Law, supra note 41,
Rules 12-14, 44-45 and 70-86.
182 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
E . National Legislation
Pursuant to customary international law, States have an obligation
to investigate war crimes allegedly committed by their nationals
or armed forces, or on their territory and, if appropriate, prosecute
the suspects.57 In order to discharge this obligation, States will
need a proper legislative framework concerning war crimes,
regardless of whether or not they are party to treaties requiring
the adoption of war crimes legislation, such as the Geneva
Conventions and Additional Protocol I.58
In addition, under customary international law, States may
vest universal jurisdiction in their national courts over war
crimes.59 As a result, if States do not wish to see their nationals
prosecuted abroad but instead ask for their extradition to stand
trial at home, they will have to show that they have proper war
crimes legislation.
Finally, under the principle of complementarity, the
International Criminal Court will only prosecute a suspect if the
State concerned is either unable or unwilling to do so.60 In order
for a State to show that it is able to prosecute suspected war
criminals, it will be required to have proper war crimes legislation.
57
See Customary International Humanitarian Law, supra note 41,
Rule 158.
58
See First Geneva Convention, Article 49; Second Geneva Convention,
Article 50; Third Geneva Convention, Article 129; Fourth Geneva
Convention, Article 146; Additional Protocol I, Article 85.
59
See Customary International Humanitarian Law, supra note 41,
Rule 157.
60
Statute of the International Criminal Court, supra note 18, Article
17.
2009] THE DEVELOPMENT OF INTERNATIONAL 183
HUMANITARIAN LAW AND THE
CONTINUED RELEVANCE OF CUSTOM
The fact that the Security Council can refer cases to the Court
involving States which are not party to the Statute of the Court
implies that all States are potentially concerned by the jurisdiction
of the International Criminal Court. Therefore, all States should
adopt national war crimes legislation, regardless of being a party
to specific treaties, including the Statute of the International
Criminal Court, or not.
V. C ONCL USION
ONCLUSION
C
ommand responsibility is an important legal tool for
international criminal tribunals in trying high-ranking
superiors for crimes committed by often unidentified
subordinates.1 As our distinguished speaker Dr. Jean-Marie
Henckaerts has just demonstrated, the command responsibility
doctrine—that military and other superiors may be held
criminally responsible in respect of the acts of their
subordinates —is well-established in conventional and
customary international law.2
As stated by Chairperson Leila M. de Lima, the doctrine of
command responsibility has echoes in the Articles of War. The
principle is also echoed under Philippine law. Executive Order
No. 226 dated February 15, 1995, entitled “Institutionalization
of the Doctrine of ‘Command Responsibility’ in All Government
Offices, Particularly at All Levels of Command in the Philippine
National Police and Other Law Enforcement Agencies,” holds
∗
Closing Remarks delivered at the Fourth Distinguished Lecture,
Series of 2008 , held on August 13, 2008, at the Court of Appeals,
Manila.
1
Joakim Dungel, Command Responsibility in International Criminal
Tribunals, in A Conspiracy of Hope: Report on the National
Consultative Summit on Extrajudicial Killings and Enforced
Disappearances (2007), 149.
2
Id. at 150, citing Prosecutor v. Delalic et al., Case No. IT-96-21-A,
Judgement, February 20, 2001, par. 195.
2009] COMMAND RESPONSIBILITY: QUO VADIS? 185
6
Pacifico Agabin, Accountability of the President Under the
Command Responsibility Doctrine, in A Conspiracy of Hope:
Report on the National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances (2007), 123.
2009] COMMAND RESPONSIBILITY: QUO VADIS? 187
however, avoided the issue when it issued the Rule on the Writ of
Amparo. It opted to give Congress, instead, the first crack at
determining the metes and bounds of command responsibility.
The Melo Commission, the independent commission created
by President Gloria Macapagal-Arroyo to address media and
activist killings, also recommended that the President propose
legislation that would penalize superior government officials who
encourage, incite, tolerate, or ignore any extrajudicial killing
committed by their subordinates. The Commission suggested
that the failure of such government officials to prevent an
extrajudicial killing if they had a reasonable opportunity to do
so, or their failure to investigate and punish their subordinates, or
to otherwise take appropriate action to deter or prevent the
commission of the crime or to punish their erring subordinates,
should be criminalized. The Commission suggested that even
“general information” like media reports that would place the
superiors on notice of possible unlawful acts of their subordinates,
should be sufficient to hold the superiors criminally liable if they
failed to investigate and punish those subordinates.7
We have bills filed in the Senate and in the House of
Representatives. Unfortunately, none of these bills have come
into fruition. Evidently, these have failed to negotiate the various
slippery slopes of command responsibility. Meanwhile, the killings
and disappearances continue. Worse, a de facto war has been
rekindled in the south between the government forces and the
Moro Islamic Liberation Front, a war where several have died
and thousands rendered homeless. But, while the guns are firing,
the laws are silent.
7
Independent Commission to Address Media and Activist Killings
Report, at p. 71 (The Melo Report).
188 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
8
<http://www.law.harvard.edu/library/collections/special/online-
collections/common_law/index.php> (last accessed August 6,
2008).
Supreme Court of the Philippines
and the
Philippine Judicial Academy
present
COMMAND RESPONSIBILITY:
FROM INTERNATIONAL
CRIMINAL TRIBUNALS
TO NATIONAL JURISDICTIONS
by
Invocation
HONORABLE CONCHITA CARPIO MORALES
Associate Justice, Supreme Court
Greetings
HONORABLE CONRADO M. VASQUEZ, JR.
Presiding Justice, Court of Appeals
Opening Remarks
HONORABLE ANTONIO EDUARDO B. NACHURA
Associate Justice, Supreme Court
Musical Intermission
SUPREME COURT CHOIR
LECTURE
PROFESSOR FAUSTO POCAR
Panel of Reactors
HONORABLE ADOLFO S. AZCUNA
Associate Justice
Supreme Court
Closing Remarks
HONORABLE REYNATO S. PUNO
Chief Justice
Master of Ceremonies
DR. PURIFICACION V. QUISUMBING
Chairperson
Department of International and Human Rights Law
Philippine Judicial Academy
O PENING R EMARKS ∗
Justice Antonio T. Carpio∗∗
C
hief Justice Reynato S. Puno
My esteemed colleagues in the Court
Appeal Judge Fausto Pocar
Chancellor Ameurfina A. Melencio Herrera
Excellencies of the Diplomatic Corps
Justices of the Court of Appeals, Sandiganbayan, and
Court of Tax Appeals
My co-workers in the Judiciary
Distinguished guests, friends,
Good afternoon.
∗
Opening Remarks delivered at the Fifth Distinguished Lecture, Series
of 2008, held on November 27, 2008, at the Court of Appeals
Auditorium, Court of Appeals, Manila.
∗∗
Born in Davao City, Philippines, Justice Antonio T. Carpio was
sworn in as member of the Supreme Court on October 26, 2001.
He obtained his law degree from the College of Law of the
University of the Philippines where he graduated valedictorian
and cum laude in 1975. He placed sixth in the 1975 Bar
Examinations. He earned his undergraduate degree in Economics
from Ateneo de Manila University in 1970.
As a student, he was Chairman of the Editorial Board of the
Philippine Law Journal of the U.P. College of Law and Editor in
Chief of The Guidon, the school paper of Ateneo de Manila
University. He was also Managing Editor of the Philippine
Collegian, the school paper of the University of the Philippines.
194 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
Judg
udgee FFausto
austo P ocar is a Professor
Pocar
of International Law at the
University of Milan, where he had
served as Dean of the Faculty of
Political Sciences and as Vice Rector.
He became a member of the
International Criminal Tribunal for
the former Yugoslavia in 2000, serving
as Vice President (2003), and as
President (2005-2008).
Since his appointment to the
ICTY, he has served first as a Judge
in a Trial Chamber, sitting on the first
case of rape as a crime against humanity
and later in the Appeals Chamber. He Representative of the UN High
is also Appeals Chamber Judge of the Commissioner for Human Rights for
International Criminal Tribunal for visits to Chechnya and the Russian
Rwanda, participating in the adoption Federation. He has also chaired the
of the final judgments in several ICTY informal working group that drafted the
and ICTR cases heard at The Hague Declaration on the rights of national or
and at Tanzania. ethnic, religious or linguistic minorities
adopted in 1992 by the General Assembly.
His 16-year experience in the UN
(1984-2000) includes being rapporteur A prolific author of publications on
of the Human Rights Committee under International Law, he has also lectured at
the International Covenant on Civil and The Hague Academy of International
Political Rights, and being Special Law.
∗
Delivered at the Fifth Distinguished Lecture, Series of 2008, held
on November 27, 2008, at the Court of Appeals Auditorium, Court
of Appeals, Manila.
198 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
I. I NTRODUCTION
NTRODUCTION
F
irst of all, I would like to thank you very much for your
warm welcome and for having invited me to deliver this
Distinguished Lecture.
The starting point of most of the international scholars’
books and articles focusing on Command Responsibility (also
defined as Superior Responsibility in the past decades, in order to
account for its civilian nature) is usually exactly Manila, the very
city where I have the honor to address you today. Indeed, the
first world-famous judgment focusing on command responsibility
was rendered in the trial against Tomoyuki Yamashita, the
commanding general of the Japanese Army in the Philippines
who was convicted and sentenced to death by a US military
commission for the atrocities committed by the Japanese troops
under his command. The case eventually reached the US Supreme
Court, which upheld the conviction in a split decision over
vigorous dissent.
The origins of the superior responsibility doctrine can be
traced back to principles espoused much before that date, however,
and they have their roots in the duties of military commanders
to ensure discipline in their troops. Moreover, at least in the
Western tradition, at least since the 17th Century, a rule is deemed
to exist that public officials, up to the highest level of authority,
must answer when they do not prevent certain illegal acts by their
subordinates:
Ex neglectu tenentur reges ac magistratus qui ad inhibenda
latrocinia et piraticam non adhibent ea quae possunt ac
debent remedia.1
1
Hugo Grotius, De iure belli ac pacis libri tres, Book 2, Ch. XVII,
para. 20 (1625), See also Ch. XXI, para. 2.
2009] COMMAND RESPONSIBILITY: FROM INTERNATIONAL 199
CRIMINAL TRIBUNALS TO NATIONAL JURISDICTIONS
A. Superior -Subor
Superior-Subor dinate R
-Subordinate elationship and Ef
Relationship Efff ecti
ectivv e
Control
The existence of a superior-subordinate relationship is
characterized by a hierarchical relationship, whether formally
recognized within a domestic legal system (de jure) or not (de
facto).3 What must be shown is that the superior had “effective
control” based on a duty to exercise his or her authority “so as to
prevent and repress the crimes committed” by their subordinates.4
To have “effective control,” a superior must have more than
mere influence.5 What is required is the material ability within
the existing superior-subordinate relationship, directly or
indirectly,6 to prevent, punish, or to initiate measures leading to
proceedings against alleged perpetrators where appropriate.7 Thus,
mere formal de jure authority is not sufficient to establish the
3
Celebici Appeals Judgement, paras. 193, 197, 303.
4
Celebici Appeals Judgement, para. 197, citing Celebici Trial
Judgement, para. 377; see also Celebici Appeals Judgement, para.
240; Aleksovski Appeals Judgement, para. 76.
5
Celebici Appeals Judgement, para. 266.
6
Celebici Appeals Judgement, para. 252.
7
Celebici Appeals Judgement, paras. 192, 255-256; Blaškic Appeals
Judgement, para. 69.
2009] COMMAND RESPONSIBILITY: FROM INTERNATIONAL 203
CRIMINAL TRIBUNALS TO NATIONAL JURISDICTIONS
B. Kno wledg
wledgee
Knowledg
As regards the mental element of superior responsibility, it must
be established that the superior knew or had reason to know that
his or her subordinate was about to commit or had committed a
crime. As discussed above, Yamashita has been abandoned and
nowadays, superior responsibility is not a form of strict liability.14
It must be proved that the superior had:
1. actual knowledge, established through direct or
circumstantial evidence, that his or her subordinates were
about to commit, were committing, or had committed
crimes within the jurisdiction of the Tribunal;15 or
2. constructive knowledge, meaning that the superior had
in his or her possession information that, in the specific
circumstances of the case,16 would at least put him or her
14
Celebici Appeals Judgement, para. 238-9; Bagilishema Appeals
Judgement, para. 28.
15
In the jurisprudence of the Tribunal, circumstantial evidence of
“actual knowledge” has been found to include the number, type and
scope of the illegal acts; the period over which the illegal acts
occurred; the number and type of troops involved; the logistics
involved, if any; the geographical location of the acts; the widespread
occurrence of the acts; the speed of the operations; the modus
operandi of similar illegal acts; the officers and staff involved; and
the location of the superior at the time (Celebici Appeals Judgement,
para. 386).
16
Celebici Appeals Judgement, para. 239; Bagilishema Appeals
Judgement, para. 37 (“the Trial Chamber established that Bagilishema
neither knew nor possessed information which would have enabled
him to conclude, in the circumstances at that time, that the murders
had been committed or were about to be committed by his
subordinates”).
2009] COMMAND RESPONSIBILITY: FROM INTERNATIONAL 205
CRIMINAL TRIBUNALS TO NATIONAL JURISDICTIONS
C. Failure to Act
Finally, it must be established that the superior failed to take the
necessary and reasonable measures to prevent future crimes or to
punish past crimes of the subordinates.19
With regard to the meaning of “necessary and reasonable
measures,” “necessary” measures are the measures appropriate for
the superior to discharge his obligation (showing that he genuinely
tried to prevent or punish) and “reasonable” measures are those
17
Celebici Appeals Judgement, para. 241. “In possession of ” means
that the commander is not required to have actually acquainted
himself with the information. Celebici Appeals Judgement, para.
239. Wilful blindness is clearly covered by this provision, since it
presupposes that would put the accused on notice of the risk of
offenses.
18
Celebici Appeals Judgement, para. 238. The ICTR Appeals Chamber
in Bagilishema, para. 42, cautioned that a distinction is necessary
between knowledge of the general situation that prevailed in the
country at the time (which would not be enough to raise the level
of awareness to constructive knowledge) and the fact that the accused
had in his possession information which put him on notice that his
subordinates might commit crimes.
19
Blaškic Appeals Judgement, para. 83.
206 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
20
Halilovic Appeals Judgement, para. 63, referring to: Article 86 of
Additional Protocol I provides that superiors are responsible if,
inter alia, “[t]hey did not take all feasible measures within their
power to prevent or repress the breach”; in this respect, the ICRC
Commentary explains that, for a superior to be found responsible,
it must be demonstrated that the superior “did not take the measures
within his power to prevent it” and elaborates that these measures be
“feasible” measures, since it is not always possible to prevent a breach
or punish the perpetrators” (ICRC Commentary, paras. 3543 and
3548, emphasis added); Article 87 adds the duty to “initiate such
steps as are necessary to prevent such violations [x x x] and, where
appropriate, to initiate disciplinary or penal action against violators
thereof.” See also US v. Karl Brandt et al., in TWC, Vol. II, p. 212
(“The law of war imposes on a military officer in a position of
command an affirmative duty to take such steps as are within his
power and appropriate to the circumstances to control those under
his command x x x”).
21
Blaškic Appeals Judgement, para. 72.
22
Blaškic Appeals Judgement, para. 72.
2009] COMMAND RESPONSIBILITY: FROM INTERNATIONAL 207
CRIMINAL TRIBUNALS TO NATIONAL JURISDICTIONS
23
Kordic Trial Judgement, para. 446. Blaškic Trial Judgement, para.
335. However, the measures are “inextricably linked to the facts of
each particular situation” and to the “type and nature of the effective
control exercised by the accused over his subordinates.” Celebici
Appeals Judgement, para. 394.
208 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
IV
IV.. E XTENSION OF C OMMAND R ESPONSIBILITY
TO C IVILIAN S UPERIORS
V. S UPERIOR R ESPONSIBILITY
IN THE R OME S TATUTE OF THE ICC
humanity and war crimes in their domestic legal order. Thus, the
ICC will have jurisdiction over crimes.
But, is it sufficient that national legislations incorporate the
four categories of crimes listed in Article 5 of the ICC Statute,
in order to ensure that domestic systems adequately reflect
substantive international criminal law, as codified in the Rome
Statute? Would it be enough for the complementarity standard
to be satisfied?
As is well known, in most of the criminal law systems of the
world (although more clearly in the civil law systems), criminal
law is usually composed of two sections: the so called “general
part” including principles, norms on the applicable law, definitions
of the general requirements of the actus reus and mens rea, forms
of liability, regulation on the system of sanctions, and so on
x x x ; and the so called “special part” including the specific offenses
which each State’s legislator intended to criminalize. Of course,
the border between a criminal and non-criminal conduct depends
not only upon the number and nature of offenses included in
the special part, but also on the features of the general part.
Thus, a domestic judicial system pr obab
obablly w
probab ould not
would
pass the text of complementarity (in the event the need
would arise), if national criminal law would inc lude def
include enses
defenses
expressly rejected by the Rome State, such as the obedience to
superior orders; nor a domestic judicial system would pass the
complementarity text if it would declare applicable the statute
of limitation to genocide, or to crimes against humanity,
provided that the prosecution of these crimes, in the light of
their exceptional gravity, is not affected nor in any way limited
because of the time passed since the moment they were committed;
the same result would be produced by a national legislation
2009] COMMAND RESPONSIBILITY: FROM INTERNATIONAL 215
CRIMINAL TRIBUNALS TO NATIONAL JURISDICTIONS
VII. C ERTAIN S OL
ERT UTIONS A DOPTED
OLUTIONS
TO I MPLEMENT A RTICLE 28 OF THE ICC
S TATUTE IN N ATION
TIONALAL L EGISLATIONS
EGISLATIONS
B. Some Ci vil La
Civil Laww Countries: T he Ger man and Dutc
German Dutchh
Examples
The German legislator clearly seems to have used, as a starting
point for implanting Article 28 of the Rome Statute in the Code
of Crimes Against International Law of 2002 (Code), the
sophisticated analysis carried out by the German criminal law
2009] COMMAND RESPONSIBILITY: FROM INTERNATIONAL 219
CRIMINAL TRIBUNALS TO NATIONAL JURISDICTIONS
A. Bosnia-Herze
Bosnia-Herzeggovina
As you may know, as part of its Completion Strategy to conclude
its activities within a few years, the ICTY has been busy, inter alia,
transferring cases related to lower- and middle-level accused to
domestic institutions in the region of the former Yugoslavia. This
was done on the premise that these countries are once again proving
to be able to deal with such sensitive and complex cases. However,
before transferring such cases, the ICTY needs to make sure that
the State in question is willing and adequately prepared to accept
such a case (Rule 11bis). In order to be considered adequately
prepared, for example, Bosnia-Herzegovina has modified its
criminal code, so as to include, inter alia, superior responsibility.
The War Crimes Chamber of Bosnia and Herzegovina is a
domestic court, albeit with an important international component
and backing, and therefore any indictment based on superior
responsibility must be written into the domestic legal code.
Currently, section 180(2) of the BH criminal code has established
superior responsibility in their jurisdiction. This particular
definition was taken wholly from the ICTY Statute.
224 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
and the ICTY and ICTR case law provides “insights” into the
required elements of command responsibility.30 In certain
instances, U.S. civil law courts have chosen to depart from the
existing case law. However, differences in the applicable law are
to be regarded as both logical and desirable, considering that the
underlying focus of tort law and criminal law differ fundamentally.
Criminal proceedings concentrate on the personal liability of the
accused, in order to verify the need to apply a sanction aimed to
serve the purposes of retribution, general and special prevention;
conversely, civil proceedings focus upon the determination of
damage suffered by the victims, in order to ensure them adequte
reparations. Moreover, the civil and criminal law processes are
fundamentally different in terms of evidentiary requirements:
criminal processes require that the responsibility of the accused is
established beyond reasonable doubt, whereas the lesser standard
of “more probable than not” applies in civil proceedings.
In the light of these considerations, it is particularly interesting
to take notice of the fact that U.S. civil courts have confirmed
that some of the strict requirements for holding a superior
responsible under international criminal law also apply in the
framework of tort law. This is true, for example, for the “effective
control” element, which has been transposed in the U.S. tort law
without nearly any modifications.
In For
ordd vv.. Garcia
Garcia
cia, the appellants sought to recover damages
for claims of torture and murder against two El Salvadorian
generals. Three nuns and one layperson, all Americans engaged in
missionary and relief work in El Salvador, were abducted,
tortured, and murdered in December 1980 by five members of
the Salvadorian National Guard. The plaintiffs requested civil
30
Ford v. Garcia, 289 F.3d 1283, 1286 (11th Cir. 2002).
228 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
IX. C ONCLUSIONS
∗
Reaction delivered at the Fifth Distinguished Lecture, Series of 2008,
held on November 27, 2008, at the Court of Appeals Auditorium,
Court of Appeals, Manila.
∗∗
Justice Adolfo S. Azcuna was born in Katipunan, Zamboanga del
Norte, on February 16, 1939, the son of Felipe B. Azcuna and
Carmen S. Sevilla. He received the degree of Bachelor of Arts,
with academic honors, at the Ateneo de Manila in 1959 and the
degree of Bachelor of Laws, cum laude, at the same institution in
1962. He was admitted to the Philippine Bar in 1963, placing
fourth in the 1962 bar examinations. He forthwith embarked on a
government career as Assistant Private Secretary of then Presiding
Justice Jose P. Bengzon of the Court of Appeals in 1963 and,
thereafter, upon the appointment of the latter to the Supreme Court
in 1964, as his Private Secretary.
Justice Azcuna taught International Law at his alma mater, Ateneo
de Manila, from 1967 to 1986. In 1982, he completed post-graduate
studies in International Law and Jurisprudence at the Salzburg
University in Austria.
2009] REACTIONS ON COMMAND RESPONSIBILITY: 231
FROM INTERNATIONAL CRIMINAL TRIBUNALS
TO NATIONAL JURISDICTIONS
I focus on the last paragraph of the paper/lecture: that,
without doubt, the Principle of Command Responsibility is now
part of customary international law.
First, what is that doctrine? How is it formulated?
While it started here in the Philippines in the Yamashita case,
it has undergone transformations and changes in all its elements,
i.e., mens rea and the material element of control. While, in
M
any crimes are seldom isolated acts of individual
offenders. Often, they are committed as a part of
large-scale atrocities that can only be carried out by a
plurality of organized perpetrators. In these cases, it may be very
difficult to ascribe individual criminal liability to specific members
of the criminal group, particularly those who hold positions of
leadership. Command responsibility has been one of the legal
notions developed to address this problem.
Of late, this doctrine of command responsibility has been
brought to the fore of Philippine legal thought. Just last year, the
many extralegal killings and enforced disappearances that have
plagued our country since the start of the new millennium –
particularly those involving political activists and members of
the media – led to a reexamination of the doctrine of command
responsibility. Thus, in last year’s national consultative summit
on extrajudicial killings and enforced disappearances, Father
Joaquin Bernas urged the government to devise ways of
implementing the doctrine of command responsibility in such
∗
Closing Remarks delivered at the Fifth Distinguished Lecture, Series
of 2008 , held on November 27, 2008, at the Court of Appeals
Auditorium, Court of Appeals, Manila.
234 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
6
Beatrice Bonafe, Finding a Proper Role for Command Responsibility,
5 J. Int’l Crim. Just. 599, 603-604 (2007).
7
Id. at 604-605, citing Judgment, Delalic and others (IT-96-21-T),
Trial Chamber, November 16, 1998, §346.
2009] LEARNING FROM THE INTERNATIONAL CRIMINAL 237
TRIBUNAL FOR YUGOSLAVIA
8
Id. at 612-613.
9
Id. at 599, 617.