I. Marxism and the Reading of Silence: The Life of Merlin M. Magallona

The identification of Merlin M. Magallona as a Marxist in a country that continues to be plagued by a five-decade-old communist rebellion in the countryside where “red-tagging” and red-baiting of activists remains as lethalFootnote ⁹ as it was in the Cold War in the 1950s, or, closer still, Guomindang China in the 1930s, may have been both awe-inspiring and discomfiting for some of his younger colleagues at the University of the Philippines College of Law. Thus, read the evasion, silence, and other forms of disguise in otherwise effusive tributes to the man after his passing on 1 January 2022:

The narrative curiously adds that Magallona was “a man with a colourful history of involvement with struggles for meaningful freedoms; stories about his activities at the onset of martial law…are now urban legend”.Footnote ¹¹ What the nature of these “struggles” is, one does not know and finds no clue thereto. The unfamiliar reader is left to speculate.

The same evasion or silence can be gleaned from this official announcement from the University of the Philippines:

Marxist literary criticism holds that texts often bear “the imprint of a determinate absence”.Footnote ¹³ Thus, “what is important in the work is what it does not say”.Footnote ¹⁴ As Louis Althusser's student, Pierre Macherey, elaborates, “what the work cannot say is important, because there the elaboration of the utterance is acted out, in a sort of journey to silence”.Footnote ¹⁵ Reading the tributes to Magallona above, one feels that the texts direct the reader to a journey of silence. What are the things that the texts do not or cannot say?

To investigate this silence, Macherey advises us to move outside the work. We must look for what Althusser called the undivulged event in the text, which relates the text to a different text, “present as a necessary absence in the first”.Footnote ¹⁶ Following this symptomatic reading, we searched for that absent text and found the following:

The text issued by the PKP fills some gaps in the information needed to understand the context of Magallona's critique of international law. To understand critique, one must know the “what” and the “how” of critique – the context.Footnote ¹⁸ The “how” of critique is an “inquiry into the condition of critique”.Footnote ¹⁹ This inquiry includes an investigation or reconstruction of the space and time of critique. As such, the how of Magallona's critique cannot be known without the details provided by the text issued by the PKP, which deals with the least known aspect of his academic and practical work.

In a few paragraphs, the text of the PKP divulged the critical “events” in Magallona's life, which cannot be said in the first two texts. The PKP text identified Magallona as “Comrade Vidal” and a former “leader of the Party”. He was a “cadre” from the 1960s to the 1990s and was involved in the polemics with the Maoists that preceded the establishment of the Communist Party of the Philippines (CPP-Maoist) in 1968.Footnote ²⁰ He also led the PKP to a settlement with the Marcos dictatorship that culminated in the grant of amnesty to former guerrillas of the Huk RebellionFootnote ²¹ from the late 1940s to the 1950s. From 1987 to 1993, Magallona served as the General Secretary of the PKP.

That Magallona was a long-time communist and a leader of the Communist party, the same party that led the anti-Japanese guerrillas and the post-war peasant rebellion, could not be mentioned. Such facts could not be said. These important details had to be wrapped in silence, banished to what may be considered the Freudian “unconscious”.Footnote ²²

We argue, therefore, that anyone who reads Magallona must pry into the silences of his personal and professional life history to understand his intellectual work better, beyond the urban legend whispered about in the rooms and corridors of the law school that had served as his academic home for over half a century. His interpretation of international law, his embrace of the NIEO, and his utility of colonial treaties to defend the Philippines against new forms of imperialism can only be meaningful in the context of the silences we have identified. We do not argue that such details could complete the picture. No work is ever complete. No author's words can complete his speech. “To know what the writer is saying, it is not enough to let him speak, for his speech is hollow and cannot be completed at its own level”.Footnote ²³ There will always be gaps, silences, and the unsaid in the text. It is, therefore, impossible to have a complete text. Thus, while we try to make sense of these silences that surround Magallona's life and works, we also celebrate the silences that keep the contradictions within his work latent. It is the silence that gives life to his intellectual and practical work.Footnote ²⁴

II. In the Mode of Production Debate: Comrade Vidal's Contribution to a Critique of International Political Economy

In this section, we present Magallona's critique of international political economy in the context of the mode of production debate in the Philippines, attempting to reconstruct his contemporaries’ views, the polemics, and the absent interlocutor in his writings; in other words, the “how” of his critique. The aforementioned PKP statement revealed for the first time that for more than thirty years, Merlin M. Magallona, as Comrade Vidal, had served as a leading Party cadre and was responsible for the party's polemic with the Maoists. His lead role at that time had become obscured and turned into urban legend.

To reconstruct the context, we begin by reading his Maoist/National Democratic interlocutors. Maoist texts circulated widely in the Philippines as the Maoist movement became part of “global Maoism”.Footnote ²⁵ The Maoist rebellion that the PKP had opposed in the 1960s has survived to this day as the biggest and longest-running insurgency in the Philippines. For this reason, it is easier to find references to Magallona in their early texts.

Many Maoist texts reveal that Magallona was locked in a polemical debate with his erstwhile PKP comrade, José María Sison (1939–2022), founder of the Communist Party of the Philippines (CPP). Sison identified Magallona as one of the “ringleaders of the Lava revisionist renegade clique”. In his “On Lavaite Propaganda for Revisionism and Fascism” (20 July 1971), Sison specifically described Magallona as someone “employed with a reactionary government agency engaged in counterrevolutionary propaganda and previously with an agency of the US Government”.Footnote ²⁶

In another salvo, Sison attacked his enemies, once again using the Marxist/Maoist language of the day:

Earlier in 1967, the leading cadres of the PKP, Francisco Lava, Jr. and Magallona, had accused Sison of plagiarizing a collective statement by releasing it under his name.Footnote ²⁸ That was two years before Sison's “re-establishment” of the Communist party (CPP-Maoist) in Central Luzon, the heartland of the Huks.

Behind the name-calling, denunciations, and counter-accusations lie irresolvable contradictions. Differences in social analysis, strategies, and ideologies were beginning to tear the PKP apart. By 1967, its membership showed signs of division that would ultimately end in the expulsion of Sison's group.Footnote ²⁹ Established in 1930, the PKP saw its fortunes rise with the post-war order.Footnote ³⁰ They were winning seats in government through elections. Nonetheless, the war and land problems in the countryside had radicalized many peasants in Central Luzon, who began to resist their landlords. In this brewing social conflict, the US colonial government and the new republic would support the landed elite and precipitate a civil war in the countryside. The PKP tried to follow a legal road to power, but the peasant uprising and the actions of the new government, including the disqualification of PKP-affiliated elected officials, would force it to adopt an “insurrectionist” line. The party's belated sponsorship of the rebellion eventually decimated its ranks after the government adjusted its counterinsurgency programme. The PKP went into decline after the defeat of the Huk Rebellion in the 1950s and the incarceration of its leaders.Footnote ³¹

By the 1960s, a new generation of cadres had joined the PKP, and the unresolved social problems were beginning to swell the student arm of the PKP. However, the new youth was impatient. China's newly launched cultural revolution lit their youthful imagination, pulling them towards the Maoist doctrinal orbit. In practical terms, Sison was demanding an open critique of past policies of the PKP and its defeat in the Huk Rebellion. He was looking for an opportunity to formulate a new policy. However, he failed to obtain his own Zunyi.

From the viewpoint of the PKP, it was Sison who was the factionalist. He was viewed as the enemy from within, who would take away the mass organizations and the party's membership. Moreover, although the PKP still had remnants of armed squads in Central Luzon, as pointed out by Sison in his diatribe, its leadership was leaning towards a parliamentary road to power. PKP leader Jesus Lava would later admit that the PKP decision to use armed struggle in 1949 was “the greatest error of the Party”.Footnote ³² The legal settlement with the dictatorship, negotiated by Magallona, was not surprising given the experiences of the older generation of revolutionists.

Ideological debates always accompany the break up of Marxist movements. In 1968, while aiming at the PKP for its past mistakes,Footnote ³³ Sison launched a mode of production debate by adopting Mao's concept of “semifeudal, semicolonial” to characterize Philippine postcolonial conditions. This characterization was an ingenuous way to justify a new revolutionary war in the countryside because this specific concept of mode of productionFootnote ³⁴ logically demands a corresponding military strategy.

The concept of “semifeudalism, semicolonialism” has long been a matter of faith and creed in Philippine Maoist circles.Footnote ³⁵ As a consequence, its analysis has not gone very far. But the concept has a long genealogy that can be traced to the late-nineteenth century legal discourse on the Chinese empire's “semicivilized” status. In international legal texts of the late nineteenth and early twentieth century, China's position was in a purgatory-like space, partly covered and partly uncovered by international law.Footnote ³⁶ This semicivilized status corresponded to a semicolonial position, differentiating it from the savage colonies.Footnote ³⁷ Lenin transformed the civilizational and juridical senses of the concept into a Marxist category that referred to China's subordination under monopoly capitalism. Lenin's concept of semicolonial status would later be adopted by Mao Zedong. As noted by Toni Barlow, the Chinese conception of “semifeudalism, semicolonialism” [半封建社会， 半殖民地] allowed the recognition of the singular while retaining the universal aspect of the contradiction. This recognition of the singularity allowed “for battle plans to be designed on the basis of real conditions”.Footnote ³⁸

The renewal of a peasant war after the defeat of the Huks in the 1950s depended on this new concept, popularized by Sison's Philippine Society and Revolution.Footnote ³⁹ It asserted that the semicolonial character of Philippine society springs from the dominance of US imperialism. At the same time, its semifeudal condition is characterized by the penetration of the feudal economy by US monopoly capital, transforming it into a commodity economy.Footnote ⁴⁰ This mode of production creates a multitude of impoverished peasants who then become the natural and reliable allies of the proletariat. However, Sison's appropriation of the Chinese concept ignored the specificity of the previous use to refer to a territory that has never been totally colonized. Moreover, calling the Philippines semifeudal justified a peasant-led protracted war in the countryside that diverged from the PKP's failed insurrectionist line. Indeed, the military utility of the concept would make it hard for the CPP to give up its formulation even after fifty years of protracted war because doing so would render passé its entire struggle. Hence, the CPP insists on a semifeudal, semicolonial Philippine society to this day.

It was against this astute, if unoriginal, adoption of the Chinese formula that Magallona had to respond.Footnote ⁴¹ Against Sison's formulation, Magallona theorized that the Philippines and former colonial states in Southeast Asia were being positioned in a “neocolonial division of labour”. He wrote:

This theory of a neocolonial division of labour led Magallona to consider this new development a reversal of the UN Declaration of a NIEO.Footnote ⁴³ Rather than seeing a liberating international order, what appeared to him was the NIEO version of transnational corporations of Western capitalist states – a “New Imperialist Economic Order”.Footnote ⁴⁴

In the context of the domestic economy, this formulation denies the preponderance of feudal or semifeudal relations that would justify the protracted war and more bloodshed.Footnote ⁴⁵ Magallona saw monopoly capital transforming the Philippine economy into industrial appendages of transnational corporations. This view was reiterated in his other writings, where he argued that the martial law regime was a political mechanism to reorient the Philippine economy from a colonial to an industrial neo-colony. Through this process, farmers were being siphoned into the “cash nexus of capitalism”,Footnote ⁴⁶ a process that effectively diminished the old feudal relations in the mode of production to a level that feudalism could no longer be considered dominant in Philippine society. In his critique of political economy, the Philippine economy was no longer dependent on the US.Footnote ⁴⁷ Rather, what appeared before the eyes was a growing multiplicity of imperialist transnational corporations dominating the domestic market. These corporations invested in backward economies to take advantage of low labour costs, transforming the latter into appendages to their complex supply chains. In effect, the anti-imperialist critique could no longer be a critique of monolithic US imperialism.

In hindsight, between Sison's and Magallona's respective formulations of the mode of production, the concept of “semifeudalism, semicolonialism” was explosive. If the recruitment of the Maoists alone was to be the basis of success, then the Chinese formula won the day. After all, it was not easy to recruit thirty thousand members and open fifty-nine guerrilla fronts all over the archipelago from 1968 to the mid-1980s.Footnote ⁴⁸ Of course, the semifeudal, semicolonial formula's success lies not in its originality; rather, it was simple and closer to Philippine reality in the 1960s and even the 1970s. There were many peasants to recruit and arm back then (when agriculture was more than one-third of the economy), and the declaration of martial law in 1972 drove many radicalized students from the city to the countryside, bloating the insurgency's ranks. In a sense, through the formula, the CPP offered the most radical solution at the dawn of the Marcos dictatorship and stole the thunder from the PKP when there was a resurgence of activism in the Philippines and the world.

Magallona's analysis, of course, had a point when it underscored the changing position of the US in the economy. Japanese aid and investments outpaced the growth of US aid and investment in 1974.Footnote ⁴⁹ Nonetheless, as Philippine and international events would later prove, this quantitative change was not enough to create a qualitative change in the political, economic, and cultural predominance of US imperialism. In 1986, the US airlifted the Marcos family to Hawaii. US fighter planes flew over Manila during the bloodiest coup against the post-dictatorship regime of Corazon Aquino. By the 1990s, Japan had become a junior partner of the US, and the latter was enjoying an unprecedented supremacy in world politics. Even the anti-American Rodrigo Duterte would leave the presidential palace in 2022 without being able to trash any US-RP military treaty.

Magallona's rejection of the semifeudal, semicolonial formula and his characterization of the martial law regime as a political mechanism to create an industrial neo-colony would also give him and the PKP the legal space to exist. However, the settlement with the Marcos dictatorship would have a political cost that relegated the PKP to the margins of Philippine political life. While it freed the older revolutionists from prison, the political settlement would mark the PKP as a collaborator of a dictator devoid of any political capital. It would appear to many younger idealists that the PKP had just filed its retirement from political life. It was a difficult Faustian choice.

In a way, the positions of Sison and Magallona were, in practice, the reiteration of the reform or revolution question that had been rehearsed within social movements from the Second International to contemporary times. Lenin's question of practice – “What is to be done?” –reappeared. At the most important historical junctures, it seems that social movements, including communist ones, confront the same question about practice.

Indeed, whatever weaknesses in Sison's and Magallona's theoretical formulations may now appear, one should note the undeniable connections of Marxist theorizing to the practice of their mass movements. These mode of production formulations were made at a particular historical conjuncture in the life of a mass movement, which had corresponding political strategies and tactics that determined the daily life of the Filipino masses. Undoubtedly, the theories had life-and-death ramifications for activists, party members, and mass organizations. It was a high rollers’ gamble; there was no space for a mistake.

Viewed from our present terrain, Magallona's formulation may have underestimated the appetite of the dictatorship for plunder that would turn back the economic development of the Philippines by a decade or two. By the end of the 1980s, the post-dictatorship government could not even provide a 24/7 electricity supply to households and industry, much less establish a neocolonial “industrial” base. At one point, debt servicing took half of the national budget.Footnote ⁵⁰ This crisis led successive governments to embrace a labour-export policy that would displace tens of millions of Filipino labourers to various parts of the world.Footnote ⁵¹ Thus, the “semi-feudal” countryside would be deprived of peasants not by industrialization but by exporting labour. By 2021, services would contribute sixty per cent to the economy, followed by twenty-eight per cent from industry and ten per cent from agriculture.Footnote ⁵² The industrial sector's share fluctuated while the agriculture sector's share would dive from thirty per cent in the 1970s to ten per cent by 2020.Footnote ⁵³ Certainly, there is now a new division of labour in the global capital structure, but not as Magallona imagined. However, this apparent flaw does not diminish the relevance of Magallona's materialist lenses in understanding the development of international legal doctrines. As we show below, an underlying Marxist logic in Magallona's work allows him to resolve the antinomy of positivism and self-determination in international law.

III. The Dialectic in Magallona's Third World Texts: Towards a Synthesis of the Antinomy of Positivism and Self-Determination

In this section, we turn from Magallona's formulation of the postcolonial mode of production to his actual writings on international law. In the silences of Magallona's works on international law, we read a critique of imperialism and a dialectical materialist explanation of the development of international legal principles, particularly jus cogens and human rights. We argue that Magallona's critique embodies a dialectical vision that resolves the antinomy between positivism and self-determination by transforming positivist thought into an expression of self-determination.

In one volume of Ashgate's Library of Essays in International Law under the general editorship of Robert McCorquodale, Magallona's 1976 article “The Concept of Jus Cogens in the Vienna Convention on the Law of Treaties” is anthologized.Footnote ⁵⁴ The essay does not explicitly reveal a Marxist polemicist. This is noted by the editor, who writes:

The essay appears to be an ordinary doctrinal discussion of the emergence of jus cogens as positive law, which Magallona traces to the municipal law concept of ordre public. He then goes into a discussion of the definition, the function, and the treaty rules of jus cogens. One may get lost in his doctrinal analysis of the provisions governing the application, termination, and change of jus cogens; nonetheless, the Filipino scholar who wrote the essay was no ordinary doctrinal scholar. He was newly released from prison after being granted an amnesty and had just returned to the University of the Philippines College of Law as a Senior Lecturer.Footnote ⁵⁶ A close reading of this essay will show that the author had not given up on Marxism, though an untrained eye barely recognizes it in the text. Perhaps prison has trained him to be subtler.Footnote ⁵⁷

There is no hint of Marxism in Magallona's statement that “[i]t is in the Vienna Convention on the Law of Treaties that the concept of jus cogens is introduced into positive international law for the first time”.Footnote ⁵⁸ Indeed, the statement sounds positivist rather than Marxist. This belief is reinforced by the writer's elaboration that identifying a norm that may be classified as jus cogens is “a consensual mechanism”.Footnote ⁵⁹ One may add to this positivist tendency Magallona's approving citation of Soviet jurist G.I. Tunkin's notion of “interconditionality of wills”.Footnote ⁶⁰

However, the absence of Marxism in Magallona's text is only apparent. Magallona's Third World text contains the antinomy of positivism and self-determination. It viewed colonial treaty making as a form of laissez-faire market where the imperialists had unlimited powers to make contracts. The codification of jus cogens, the text argues, ended this classical capitalist practice of treaty making and affirmed the self-determination of peoples, thereby establishing the social basis of international law.

Yet it must be noted that the interconditionality of wills was a Soviet attempt to unify international law despite the opposing capitalist and socialist determinants of the wills of states. As a theory, it allowed for a “peaceful coexistence” between capitalist and socialist states during the Cold War.Footnote ⁶¹ This theoretical move had an ironic result: it transformed the Soviets into extreme positivists despite the Leninist perspective that underpins Tunkin's legal theory.Footnote ⁶² It made the “treaty” the most basic and reliable source of international law.Footnote ⁶³

This positivist tendency is certainly found in Magallona's conception of jus cogens as an “inter-national law”. By grounding jus cogens on consent, he denied an abstract or teleological origin for it; instead, he proposed a materialist conception of legal development based on state relations and consensus. He argued that the concept developed from (1) the common experience of states in the struggle against fascism, (2) the new values that arose from the formation of socialist states, and (3) the exercise of self-determination by newly independent states. The norms that make up jus cogens can be “identified by the State themselves in their actual experience of struggle and cooperation”.Footnote ⁶⁴

Yet, Magallona does not advocate decadent formalism and positivism.Footnote ⁶⁵ What animates his concept of jus cogens is a vision of radical self-determination. Indeed, Magallona does not fail to note in his conclusion that the inclusion of jus cogens in the convention resulted from strong support from Third World states.Footnote ⁶⁶ More importantly, the openness and the consensual basis of jus cogens would allow states, including postcolonial states, to identify the norms that qualify as jus cogens.Footnote ⁶⁷ This would then negate the imperialist practice of excluding colonials from international conferences, as during the American-Spanish meetings that led to the Treaty of Paris of 1898, through which the Philippines was transferred from one colonial power to another like a commodity. Substantively, jus cogens would function as limits to the objects of treaties, thereby eliminating the recurrence of colonialist transactions.

Marxist scholar Bill Bowring identified this antinomy of positivism and self-determination as one of the contradictions in Soviet international law. Positivism and self-determination may indeed be contradictory. Positivism was historically a tool of imperialism. Nineteenth-century positivism denied natives sovereignty, thereby transforming them into colonials and dependents.Footnote ⁶⁸ Positivism also curtailed the rights of colonials through agreements made by Western powers, embodied in treaties such as the Act of Berlin,Footnote ⁶⁹ the US-Spanish Treaty of Paris of 1898,Footnote ⁷⁰ the Anglo-Dutch Treaty of 1824,Footnote ⁷¹ and many others. In contrast, self-determination was/is a revolutionary right that amounts to a constituent power. Its codification in international law was likened to international law's recognition of the right to revolution by granting colonial peoples a “legal licence to use force”.Footnote ⁷²

This antinomy of “colonialist” positivism and “revolutionary” self-determination also appears in Third World texts such as Magallona's. This is not surprising because the Third World state was both the object of positivist international law and the subject of the right to self-determination. While in the Soviet case, it was a matter of foreign policy and solidarity, the Third World state embodied the contradiction. In a sense, the colony had to resolve this object-subject position or, in Marxist parlance, the Third World state needed an “aufhebung”, a synthesis of the contradiction.

Thus, we find in Magallona a positivism that does not descend to a mere formality. We see a positivism that would allow participation in international lawmaking simultaneous with the exercise of self-determination. Indeed, one may see that Magallona's positivism is positivism with limits, one that cannot encroach on the self-determination of nations and is dialectically transformed and appears now as a right to self-determination, a synthesis earlier described as Postcolonial Self-Determination.

Through this synthesis, Magallona celebrated the codification of jus cogens as “an end” of “the regime of laissez-faire in treaty making”.Footnote ⁷³ On the one hand, he considered the “will of states” in the article as an expression of self-determination; on the other hand, he saw the end of unlimited state power in treaty making as a significant development of international law.Footnote ⁷⁴ Jus cogens bade farewell to the “obsolete rules” that served the “exploitative interests” of the “major capitalist powers”.Footnote ⁷⁵ Its codification against the opposition of the major capitalist powers was, without doubt, a manifestation of the power of the self-determination of peoples.

Magallona's account of jus cogens is of a piece with his theory about the philosophical development of human rights resulting from the “sharp antagonism of social classes and social interests exploding into revolutionary upheavals”.Footnote ⁷⁶ The clash of philosophies of rights merely reflects the historical struggle of social forces; here, history inevitably “screens out”Footnote ⁷⁷ those that “impede the expanding socialization of freedom” in favour of those that advance the “felt necessities of the times”.Footnote ⁷⁸ In this particular essay, written in 1989, Magallona never provides express clues of the provenance of his theory on human rights.Footnote ⁷⁹ But the question of provenance is unmistakably answered by the central thesis of his paper:

Human rights are a product of active engagement with social reality to secure not the promotion of an “isolated material benefit or redress [of a violated] right”Footnote ⁸¹ but “the greater enterprise of human rights as an affirmation of the need for broader democratic changes: it is a moment in the greater enterprise of social transformation, i.e., the revolutionary moment to enthrone the supremacy of the majority's interests”.Footnote ⁸²

Remarking on the then two-year-old post-Marcos constitution, Magallona argues that the constitutional framework it established directs a process of social transformation toward “a regime of comprehensive human rights”Footnote ⁸³ through which the Filipino people are empowered to exercise their collective right to self-determination to transform themselves into a “constitutional sovereign force in order that they can take their place in the seat of sovereignty as the source of ‘all government authority’”.Footnote ⁸⁴ Thus, human rights consist of the objectives of comprehensive democratic changes in the life of the Filipino people as individuals – yet inseparable from their national life – as well as the means of achieving the possibilities they collectively and individually embody and protecting them from derogation.Footnote ⁸⁵ This is further explained in Magallona's reading of the new guarantees for freedom of expression provided in the new constitution, which states that “no law shall be passed abridging the freedom of speech, of expression or of the press, or the right of the people peaceably to assemble and petition the government for [a] redress of grievances”.Footnote ⁸⁶ Magallona argues that the 1987 Constitution's new understanding of free expression converged and “posited”Footnote ⁸⁷ the inseparability of civil and political rights and social, economic, and cultural rights. There, both the individual and collective human need for self-fulfilment and development find the fullest expression:

Here, the state is a central instrument for progressive change. Yet, in principle, Magallona's theory of human rights does not reject remedies beyond the state; this is evident in the overall thrust of his argument that the concept and practice of human rights are a function of the conflict of historical forces. Such an historical conflict will necessarily marshal all institutional tools, whether domestic or international, toward human rights, as needed.Footnote ⁸⁹ Contrast this to some of his Maoist counterparts who, in the early years following the People Power Revolution that removed Marcos from power, considered the UN human rights system as no more than an appendage to the world capitalist system and, therefore, secondary to the revolutionary imperative.Footnote ⁹⁰ Since then, the Maoists have embraced human rights as part and parcel of their national democratic struggle, if not in theory, at least in practice.Footnote ⁹¹

That Magallona considers international mechanisms as useful fetters to state abuse of rights is also made evident when he considers human rights as a cornerstone of the UN Charter, such that any reading of the supremacy clause of the UN Charter found in Article 103Footnote ⁹² in relation to Articles 55 and 56 and the Universal Declaration of Human RightsFootnote ⁹³ cannot be done outside human rights lenses,Footnote ⁹⁴ whose grids presumably include jus cogens norms.

Thus, the erasure of the Filipino “Comfort Women ” in the 1951 San Francisco Peace Treaty cannot be said to have waived all claims against the State of Japan arising from the Second World War, such a Treaty being subject to the UN Charter's supremacy clause,Footnote ⁹⁵ insofar as human rights obligations under the same Charter form part of the context of the Treaty and prevail over its waiver clause.Footnote ⁹⁶

However, Magallona would insist on consistency in method when invoking UN human rights instruments to protect the rights of Filipino citizens against political tyranny. This is evident in his critique of a landmark Philippine case arising from the so-called “interregnum” – one month following the 1986 People Power Revolution, when there was no constitution to speak of, Corazon Aquino's revolutionary government scrapped the 1973 Marcos constitution.Footnote ⁹⁷ In Republic v Sandiganbayan, the Philippine Supreme Court (PSC) held that even without a constitution, citizens’ rights are protected through the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, to which the Philippines is a signatory.Footnote ⁹⁸ The ratio decidendi of the case treated Filipinos as “subjects of the rules of international law”Footnote ⁹⁹ and then held that the international documents applied directly to them, invoking previous Philippine jurisprudence that considered these instruments embodiments of customary international law (CIL). The problem with this reasoning, according to Magallona, is that, under Article 2(1) of the International Covenant on Civil and Political Rights, the state party is the subject of international law as the possessor of obligations towards citizens.Footnote ¹⁰⁰ Second, the reasoning does not square with the long-established doctrine that CIL (as “generally-accepted principles of international law” described in the constitution)Footnote ¹⁰¹ becomes part of Philippine law through the Incorporation Clause of the Constitution, as held in the very same jurisprudence invoked by the majority opinion. Since there is no constitution, there is no Incorporation Clause. Thus, there is no channel through which CIL, from the plane of objective international law, may be given direct effect in Philippine municipal law without the need for legislation. The Court's reasoning practically makes the Incorporation Clause a surplusage.Footnote ¹⁰² The Court would not have had to resort to methodological incoherence in Republic had it invoked the long-standing precedents (such as, for example, those on unreasonable searches and seizures).Footnote ¹⁰³ Magallona was certainly no exponent of cosmopolitan human rights.Footnote ¹⁰⁴ But his texts reveal an international legal scholar who understood human rights as a positivization of individual and collective self-determination through treaties but subject to national constitutions that embody the self-determination of peoples. The following section shows how Magallona's Postcolonial Self-Determination was pursued in practice.

IV. The New International Economic Order as a Field of Praxis of the Third World Marxist International Lawyer

In the dialectic between critique and practice, the two collide, clash, and confront each other as theorization challenges practice and vice versa.Footnote ¹⁰⁵ In the following two sections, we discuss how Magallona's critique of imperialism was concretized and actualized in praxis through his engagement with the government and mass movement in popularizing the NIEO and his legal challenge to Philippine baseline law. We discuss Magallona's engagement with the NIEO in this section and his practice of litigation in the next.

In 1979, or five years after the PKP's political settlement with the Marcos regime, Magallona inserted himself into the ongoing international debate on the development debacle in the Third World. On November 2 of that year, the Philippine Mission to the UN circulated a principal working paper he had authored in the Sixth Committee of the UN General Assembly, titled “Towards the Consolidation and Progressive Development of the Principles and Norms of International Economic Law”.Footnote ¹⁰⁶ The paper was commissioned to support a Philippine draft resolution on the same theme in relation to legal aspects of the international economic order,Footnote ¹⁰⁷ the resolution of which was subsequently approved by the Sixth Committee on 6 December 1979 and adopted by the UN General Assembly on 17 December 1979 by a vote of 112 in favour, 6 against, and 26 abstentions.Footnote ¹⁰⁸

Being the principal working paper's author, Magallona was enlisted as a member of a group of experts convened to study the legal aspects of the NIEO. His political affiliation – in his own words, a “political reason”Footnote ¹⁰⁹ – would prove to be a stumbling block to his participation in the experts’ meeting at the UN headquarters in New York in 1982: the US Embassy in Manila refused to issue him a visa.Footnote ¹¹⁰ By his telling, we know that the Philippine mission in New York even called the Department of Foreign Affairs headquarters in Manila to conduct an inquiry into the US Consul's refusal to issue him a visa given the embarrassment it caused to the Philippines, it being the main proponent of the subject matter to be discussed in New York.Footnote ¹¹¹ The Marcos administration proved hapless before a minor American government functionary, whose machinations underscored the Philippines’ continuing neocolonial subservience to its former colonial master. Yet once again, we are not informed exactly what specific political reason might have served as the basis for the US embassy's non-issuance of a visa or what came out of the investigation by the DFA.Footnote ¹¹²

In his working paper, Magallona argued for a “restructuring of international law”Footnote ¹¹³ from its old colonial roots through which purportedly civilized nations laid the foundations of an international economic order skewed against decolonized and developing states to one based on “equity, sovereign equality, interdependence, common interest and cooperation among all states, irrespective of their economic and social system”.Footnote ¹¹⁴ Development has become a legal question insofar as “no system of norms can pretend to apply to an international community without embodying the major concerns and vital interests of the developing countries[,] which are rooted in their state of underdevelopment and premised in their just demand for equity”.Footnote ¹¹⁵ He thus argued that the standards for development under an NIEO may now be defined through an erga omnes “right to development” owed by states to the international community as a whole,Footnote ¹¹⁶ constituted by its three founding documents;Footnote ¹¹⁷ namely, the NIEO Declaration and Programme of Action,Footnote ¹¹⁸ the Charter of Economic Rights and Duties,Footnote ¹¹⁹ and the Resolution on Development and International Economic Cooperation.Footnote ¹²⁰ The three documents spring from the UN Charter's objective of “social progress and better standards of life in larger freedom”Footnote ¹²¹ through “international cooperation in solving problems of an economic, social, cultural, or humanitarian character”.Footnote ¹²² Other provisions of the UN Charter provide further support: Article 55 obligates the UN to promote “conditions of economic and social progress and development” toward “the creation of conditions of stability and well-being…necessary for peaceful and friendly relations among nations”.Footnote ¹²³

Moreover, through Article 56, member states pledged “to take joint and separate action in cooperation with the Organization”.Footnote ¹²⁴ The duty to cooperate toward solving economic problems in the international order is now a general principle of law.Footnote ¹²⁵ International economic law is central to this project, as it deals with the public international law aspect of one purpose of the UN, namely international cooperation to solve problems of an economic character.Footnote ¹²⁶ While the UN General Assembly played a leading role in the progressive development of norms and principles of international economic law,Footnote ¹²⁷ the various organs and agencies of the UN system and international conferences helped crystallize these norms and principles,Footnote ¹²⁸ as embodied in the founding documents, which are summarized in the following principles:

1. (a) Sovereign equality of states, self-determination of all peoples, inadmissibility of the acquisition of territories by force, territorial integrity and non-interference in the internal affairs of other states;

2. (b) The broadest cooperation of all state members of the international community, based on equity, whereby the prevailing disparities in the world may be banished and prosperity secured for all; and

3. (c) Full and effective participation on the basis of equality of all countries in the solving of world economic problems in the common interest of all countries.Footnote ¹²⁹

Magallona had anticipated a later critique of the NIEO's statist vision.Footnote ¹³⁰ Thus, in a 1977 essay, he concretized NIEO principles in the Philippine setting in a way that emphasized the sovereignty and self-determination of the people. Magallona saw the NIEO as the continuation of the struggle for national liberation of decolonized states like the Philippines through economic development. After decolonization, “they were confronted, as they are still confronted, with powerful impediments to economic independence, which consequently continue to nullify the meaning of their political independence”. He argued that the Philippine national interest coincided with NIEO principles and was inseparable from a long history of colonial exploitation and continuing victimization through neocolonial patterns of economic development and foreign economic and financial domination.Footnote ¹³¹ To counter these regressive influences, the Philippines needed to do the following. First, it needed a strong-willed assertion of national sovereignty and self-determination.Footnote ¹³² Second, such an assertion meant full sovereignty over raw materials and natural resources against the unfettered exploitation by multinational corporations and recognition by the state that the national interest embraces not just state interests but:

Third, the national interest had to be understood as “the welfare of the broadest ranks of the people, not of an economically privileged few”.Footnote ¹³⁴

But Magallona remarked that these elements of the national interest, reflective of the NIEO, were missing in the existing framework of national policies promoted by the so-called “New Society” being touted by the dictator Ferdinand E. Marcos Sr. as the aim of his declaration of martial law. Magallona identified seven indicators of such pro-foreign capital national development programmes being carried out by the dictator's government: (1) an export-oriented economy based on processing and light manufacturing industries; (2) heavy reliance on foreign-controlled technology and finance to build the same industries; (3) high incentives for multinational corporations, such as (a) profit and capital repatriation, (b) tax breaks, (c) access to domestic credit facilities, (d) low wages for workers, and (e) guarantees against expropriation; (4) allocation of land and mineral resources for export-oriented processing zones; (5) creation of free-trade processing zones; (6) massive infrastructure projects through foreign loans; and (7) private sector lead in economic development, with the government providing conditions for political stability and worker availability.Footnote ¹³⁵

In line with his mode of production formulation, Magallona argued that such an approach to development reduced the Philippine economy into a mere “production unit of an internationally integrated production system of global corporations” and raised the “urgent question” of whether or not the interest promoted is really that of the broadest masses of the people rather than foreign monopoly-capital.Footnote ¹³⁶ In these two essays, there is no express mention of Marxist sources. Perhaps his double silences here are understandable. The first was forwarded as a Philippine government position to the UN at the international level; the second, while it first saw the light of day in a journal for Filipino lawyers, was circulated in a domestic context in which martial law had been imposed and the author – released not too long ago from jail under presidential amnesty – has had to keep, somehow, to his party's bargain with the ruling power. Yet they dealt unmistakably with the outstanding issues from Third World Marxism's transformational imperatives and his stance in his mode of production debates with the Maoists.

Despite the short-lived promise of the proposals for establishing the NIEO, Magallona continued his advocacy of its principles in and out of the groves of academe. On 30 December 1986, the PKP held its “first open Congress since 1946, and its fourth open Congress since its founding in 1930”Footnote ¹³⁷ in Cabiao, in the Nueva Ecija province in Northern Philippines, where Magallona was elected General Secretary.Footnote ¹³⁸ With his election, the NIEO principles he had been advocating as an academic were rendered indivisible from the Marxist vision of his party politics; the PKP's political action programme included the promotion of NIEO principles, which were announced at the party congress.Footnote ¹³⁹ In 1987, speaking in Moscow before a gathering of Marxist parties and representatives on the occasion of the 70th anniversary of the October 1917 Revolution, Magallona echoed the NIEO's issues as he spoke against the unchecked power of transnational corporations in Third World states as an ever-urgent concern.Footnote ¹⁴⁰

Today, Magallona's contributions to the NIEO discourse deserve a rereading in the wake of efforts in some quarters to revisit the NIEO's visionFootnote ¹⁴¹ and the continuing relevance of the question: “[I]s the international system, including the international legal system, structured in a manner that leads to the systematic immiseration of the vast majority of the world's population?”.Footnote ¹⁴²

V. Using Imperial Treaties against Empires: Reading Magallona's Marxist Praxis of Inversion

We now turn to Magallona's work on the Third UN Convention on the Law of the Sea (UNCLOS III).Footnote ¹⁴³ Here, we see his Third World Marxism expressed as a staunch opposition to imperial projects of any kind – even those by Russian and Chinese Marxists – albeit his express targets were Western powers such as the United States of America. His approach to UNCLOS in relation to Philippine national territory assumes a paradoxical stance. On the one hand, he critiqued the imposition of a racist and colonialist international law in 1898 by the United States of America and Spain through the Treaty of Paris (TOP), by which the latter relinquished to the former control over its far-flung colonial outpost of the last three centuries for US $20,000,000.Footnote ¹⁴⁴ He wrote that the TOP “consolidated [the] historic crime” of obliterating the sovereignty of the Filipino people just as they emerged victorious from a revolutionary war against their colonial mastersFootnote ¹⁴⁵ and proved to be “an integral part of a legal regime of the international community constructed by the great powers based on their interests in the division and re-division of the world into colonies and protectorates”.Footnote ¹⁴⁶ On the other hand, he followed an older nationalist (read: anti-colonial, anti-imperialist) tradition built on the colonial imposition of an exceptionalist Philippine national territorial claim. On such a stance, his scholarship rejected the multilateralism – and what he saw to be a militaristic and imperialistic bias – of the UNCLOS regime.Footnote ¹⁴⁷ More importantly, towards the last two decades of his life, he dedicated himself to a defence of this nationalist view of Philippine national territory, concluding it with a constitutional challenge before the Philippine Supreme Court against a new Philippine Baselines Law that, in his view, severely diminished the constitutional foundations of the country's territorial borders.

The nationalist school had treated the TOP as the ultimate basis for establishing national borders. Its rectangular-shaped limits formed a colonial boundary that preceded UNCLOS and was long accepted, either by their acquiescence or through active participation in its development and embodiment into a treaty of cession by the leading Western colonial powers of the time, consolidated by effective occupation.Footnote ¹⁴⁸ The territory Spain sold to the United States of America, as described in longitude and latitude in Article III of the TOP, assumes a rectangular area measuring 600 miles in width and 1,200 miles in length. The area embraced by the TOP's so-called “International Treaty Limits” was expanded by two other treaties, the 1900 Treaty of Washington,Footnote ¹⁴⁹ wherein Spain relinquished to the United States islands belonging to the Philippine archipelago but lying outside the lines described in the TOP, particularly referring to the islands of Cagayan, Sulu, and Sibutu, and the 1930 United States-Great Britain Treaty,Footnote ¹⁵⁰ which demarcated the boundaries of the Philippines and North Borneo, then under the administration of the United Kingdom.

Indeed, for a long time, it has been a Philippine constitutional truism that the TOP and its associated treaties formed the basis of the Philippine national territory and are writ large in Article 1, the National Territory provision, of the Philippine Constitution.Footnote ¹⁵¹ That is, until Magallona v Executive Secretary,Footnote ¹⁵² the case that ironically bears his name, came along. In 2009, the Philippines passed the Republic Act (RA) 9522,Footnote ¹⁵³ which further amended the country's first baseline law, RA 3046 of 1961,Footnote ¹⁵⁴ transforming the Philippines into an archipelagic state under the Law of the Sea regime. RA 3046 of 1961 was passed into law to strengthen the Philippines's territorial claim of an archipelago as a unity of land and water founded under the TOP it had espoused, which was rejected by UNCLOS I. This position is summarized in two notes verbale sent by the Philippines to the UN in 1955 and 1956, respectively, explaining for the first time to the international community its “sui generis”Footnote ¹⁵⁵ territorial and maritime entitlements pertinent to “the only mid-ocean archipelago existing in the world”.Footnote ¹⁵⁶ The relevant sections of the first note verbale stated, among other things:

1. 1. All waters around, between and connecting different islands belonging to the Philippine Archipelago, irrespective of their width or dimensions, are necessary appurtenances of its land territory, forming an integral part of the national or inland waters subject to the exclusive sovereignty of the Philippines.

2. 2. All other water areas embraced within the lines described in the Treaty of Paris of 10 December 1898, the Treaty concluded at Washington, D.C., between the [US] and Spain on 7 November 1900, the Agreement between the [US] and the [UK] of 2 January 1930, and the Convention of 6 July 1932 between the [US] and Great Britain…are considered as maritime territorial waters of the Philippines for purposes of protection of its fishing rights, conservation of its fishery resources, enforcement of its revenue and anti-smuggling laws, defense and security, and protection of its national welfare and security, without prejudice to the exercise of friendly foreign vessels of the right of innocent passage over these waters…Footnote ¹⁵⁷ [emphasis added]

The second note verbale stated that “the breadth of the territorial sea may extend beyond twelve miles” based on historical grounds.Footnote ¹⁵⁸ Magallona would lead a cast of petitioners – including a legislator, a former student of his and later on a law school colleague, and other law studentsFootnote ¹⁵⁹ – to challenge RA 9522 of 2009,Footnote ¹⁶⁰ a law that, according to the seventy-one page petition filed with the Philippine Supreme Court (PSC), meant nothing less than the “dismemberment of Philippine national territory”.Footnote ¹⁶¹ The Magallona petition assailed the new baselines law on the following principal grounds. First, it radically revised the scope and breadth of the Philippine archipelago as defined and ceded under the TOP and associated treaties and incorporated in all the constitutions of the PhilippinesFootnote ¹⁶² in 1935,Footnote ¹⁶³ 1973,Footnote ¹⁶⁴ and the present 1987 ConstitutionFootnote ¹⁶⁵ under the principle of uti possedetis juris.Footnote ¹⁶⁶ Second, by reclassifying the country's Kalayaan Islands Group (KIG) in the South China Sea as a regime of islands and deleting references to the Philippine Sabah claim, the law amended the 1987 Constitution, which defined the national territory to include “all other territories over which the Philippines has sovereignty or jurisdiction”.Footnote ¹⁶⁷ The KIG was constituted by Presidential Decree 1596 of 1978,Footnote ¹⁶⁸ placing within a polygonal area maritime features over which the Philippines claimed full sovereignty and attaching it to a section of the TOP International Treaty Limits.Footnote ¹⁶⁹ Third, RA 9522 converted Philippine internal waters into “archipelagic waters”, as defined under UNCLOS III.Footnote ¹⁷⁰ In particular, the shift to UNCLOS III in the assailed law burdened Philippine internal waters “around, between, and connecting the islands”Footnote ¹⁷¹ with the right of innocent passage, including those of warships, submarines, nuclear-powered ships, and ships carrying nuclear or other inherently dangerous or noxious substances.Footnote ¹⁷² Fourth, concerning the regime of islands in the KIG and the Scarborough Shoal, the Philippines would have lost about 15,000 square nautical miles of territorial waters,Footnote ¹⁷³ thus violating the Philippine government's constitutional duty to protect exclusive marine wealth and the offshore fishing grounds for Filipino subsistence fishermen.Footnote ¹⁷⁴

The PSC, however, side-stepped the constitutional question raised by the Magallona petition by saying that RA 9522 was no more than Philippine compliance with its UNCLOS III commitments.Footnote ¹⁷⁵ Thus, the Magallona majority opinion elided the ultimate question of compatibility between the UNCLOS III commitments and the National Territory provisions of the 1987 Constitution, ignoring the reservations the Philippines made when it signed UNCLOS IIIFootnote ¹⁷⁶ precisely for that reason.Footnote ¹⁷⁷ It also ingeniously skirted the petitioners’ argument that under UNCLOS III, some 15,000 nautical square miles of territorial waters will be lost by saying that “the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris”.Footnote ¹⁷⁸ As to the KIG and Scarborough Shoal, the PSC, while saying that the assailed law maintains the Philippine claim of sovereignty and jurisdiction over both areas, admitted that both claims could not be observed in their original form because they violated UNCLOS III requirements for an offshore archipelago.Footnote ¹⁷⁹ The PSC glossed over the fact that the KIG claim had been tacked to one leg of the TOP's International Treaty Limits (ITL).Footnote ¹⁸⁰ While the PSC was concerned about the country's non-compliance with UNCLOS III, it was silent on whether complying with it violated the constitution. For Magallona, the full turn to the UNCLOS III regime in RA 9522 meant a disastrous new “internationalization” of Philippine national territory, by which he meant: “what the Constitution described as ‘National Territory’ had become the object of the rights of every State Party or of their nationals, exercisable by them without the requirement of express consent or prior authorization on the part of the Philippine government in every instance”.Footnote ¹⁸¹ Magallona's warning about the consequences of enclaving the KIG into a regime of islands under UNCLOS III proved prescient.Footnote ¹⁸² In the arbitral proceedings between the Philippines and China over the latter's nine-dash-line claim over the South China Sea, foreign lawyers for the Philippines adopted a strategic silence in formal submissions to the proceedings regarding the Marcos decree that established the KIG.Footnote ¹⁸³ Perhaps this approach was necessary to prosecute the case successfully or, at least, avoid unnecessarily complicating the proceedings. Yet, it is also a potent source of confusion today among many Filipino policymakers and institutional gatekeepers, who remain tethered to the old Philippine constitutional national territorial imaginary anchored to the TOP regime.

In fact, in one brief paragraph, following the Philippines’ own submission, the 2016 South China Sea Arbitral Award (AA) did away with the TOP regime – and with it, Article 1, the National Territory provision of the 1987 Philippine Constitution, as well as the KIG claim embodied in PD 1596 of 1978. The AA noted that in UNCLOS III, the Philippines “was the principal proponent of the concept of historic title”, employing it “with respect to a claim (which it has since abandoned) to a territorial sea within the lines fixed by the Treaty of Paris (TOP) of 1898 between Spain and the [US] that governed the cession of the Philippines”.Footnote ¹⁸⁴ Thus, witness the PSC handing down a ruling in 2020 appreciatively invoking the KIG regime, as if the AA that had already declared it dead and buried did not exist and had never happened and as if, in the first place, the PSC did not pay tribute to the AA in another section of the very same ruling.Footnote ¹⁸⁵ The AA has become the subject in some official quarters in the Philippines of “veneration without understanding”,Footnote ¹⁸⁶ where it is accorded import contrary to its own holdings and honoured by being misread (often, from the very position UNCLOS III had rejected – the TOP regime).

But Magallona, the Third World Marxist, saw fit to defend the TOP – a legacy of colonialism – by inverting it and making it central to the Philippine postcolonial project's right to self-determination.Footnote ¹⁸⁷ At its intersections with international law, Philippine national history is what the Filipino people must make of what other people have made of them. In Magallona's thought, the Philippines’ right to self-determination eschewed a universalist UNCLOS IIIFootnote ¹⁸⁸ because, for him, the justifications for such universalist claim veil imperialist and militaristic interests. His dualist theory of international law allowed him to give primacy to the Philippine Constitution against international commitments enshrined in the Law of the Sea regime. While it may appear obvious that the target of his anti-imperialist stance is the United States of America, given that he has also written substantially on the depredations suffered by national sovereignty as a result of the US military presence in Philippine territory,Footnote ¹⁸⁹ his critique of UNCLOS III does not discriminate between Marxist and capitalist warships – nuclear-powered and armed, or otherwiseFootnote ¹⁹⁰ –entering what the Treaty of Paris-International Treaty Limits considered as Philippine internal waters and violating the Filipinos’ right to self-determination.