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Hidden in Plain Sight: International Law and Marxist Praxis in the Life and Works of Merlin M. Magallona

Published online by Cambridge University Press:  19 October 2023

José Duke BAGULAYA
Affiliation:
Faculty of Humanities, the Education University of Hong Kong
Romel Regalado BAGARES*
Affiliation:
Philippine Judicial Academy, Manila
*
Corresponding author: Romel Regalado BAGARES; rbagarespil@gmail.com

Abstract

Through symptomatic reading, we analyze the visible and the invisible – the explicit and the implicit – in the works of Filipino international legal scholar Merlin Magallona (1934–2022). We argue that Magallona's international legal thought was rooted in Marxist theory and practice and honed through the mode of production debates in the Philippine communist movement during the 1960s. Specifically, he developed a critique of the neocolonial division of labour and produced a materialist reading of international legal doctrines through “Postcolonial Self-Determination” – a synthesis of the antinomy of positivism and self-determination. In practice, his Third World Marxism led him to support the NIEO and resist UNCLOS through constitutional litigation based on the imperialist Treaty of Paris of 1898. Magallona's critique and praxis suggest new forms of resistance to the new imperialisms and underscore the imperative of a practice turn in Marxist international legal theory.

Type
Article
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of the Asian Society of International Law

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References

1 HARCOURT, Bernard, “Critical Praxis for the Twenty-First Century,” in FASSIN, Didier and HARCOURT, Bernard, A Time for Critique (New York: Columbia University Press, 2019), 271 at 288CrossRefGoogle Scholar.

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3 This problem is recognized in KNOX, Robert, “Marxist Approaches to International Law”, in Anne ORFORD, Florian HOFFMANN, and Martin CLARK, eds., The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press, 2016), 306 at 324–5Google Scholar; see also, Bernard HARCOURT, Critique and Praxis (New York: Columbia University Press, 2020), at 11: “The global crises could not be greater, and yet critical theory is missing in action. Having disdained the question ‘What is to be done?’ critical theory has little to offer by way of critical praxis.”

4 See especially LUKACS, Georg, History and Class Consciousness: Studies in Marxist Dialectics, Rodney Livingstone trans. (Cambridge, MA.: MIT Press, 1968) at 149–209Google Scholar.

5 Ibid.; Tse-tung MAO, “On Practice”, Selected Works of Mao Tse-tung, vol. I (Peking: Foreign Languages Press, 1960), online: Marxists Internet Archive https://www.marxists.org/reference/archive/mao/selected-works/volume-1/mswv1_16.htm.

6 Harcourt, supra note 1 at 274.

7 [Une relation …entre le champ du visible et le champ du l'invisible]. Louis ALTHUSSER, “Du ‘Capital’ à la Philosophie de Marx’ in Louis ALTHUSSER and Étienne BALIBAR, Lire le Capital (Paris: Maspero, 1973), 9 at 20, 28. ALTHUSSER, Louis, “From Capital to Marx's Philosophy”, in Louis ALTHUSSER and Étienne BALIBAR, Reading Capital (London: Verso, 2009), 13Google Scholar at 20, 29. See the complete edition, Louis ALTHUSSER et al., Reading Capital (London: Verso, 2015). According to Althusser, symptomatic reading is a mode of reading that Marx applied to the classical political economists in which Marx allows us to see the blanks in the texts of Smith and Ricardo. Althusser theorizes that there are two principles here. The first is a reading establishing the silence or absences in the texts. The second is to see such absences in relation to the presences, the vision and non-vision within the vision itself. Althusser uses this Marxian mode of reading in reading the silences in Marx's Capital itself. Macherey applies Althusser's reading to literary texts.

8 Magallona hardly wrote book-length treatments of his subject matter, with the probable exception of two. See MAGALLONA, Merlin M., Fundamentals of International Law (Quezon City: C & E Publishing, 2005)Google Scholar, a reviewer for the Philippine bar examinations in catechetical form; and MAGALLONA, Merlin M., ed., Dictionary of Contemporary International Law: With Commentaries (Quezon City: University of the Philippines Law Center, 2011)Google Scholar, the first of its kind to be published in a long time in the Philippine academia. He often wrote in essay or article form, which, when accumulated over time, would then be anthologized into a book organized around a common theme.

9 At least 133 lawyers have been killed in the Philippines since the 1980s and nearly half of the killings happened in the last six years coinciding with the turbulent reign of the Duterte administration (2016–2022): Jim GOMEZ, “Rights group: 59 lawyers slain in 6 years in Philippines” (15 October 2022), Associated Press, online: ABC News https://abcnews.go.com/International/wireStory/rights-group-59-lawyers-slain-years-philippines-91547288. Counting other human rights defenders – environmentalists, unionists, and journalists – at least 250 have been killed under the Duterte administration: Ana P. SANTOS “ Duterte and the Climate of Impunity in the Philippines” (7 July 2020), Deutsche Welle, online: Deutsche Welle https://www.dw.com/en/dutertes-four-years-in-power-extrajudicial-killings-rights-abuses-and-terror/a-54082293.

10 Rommel J. CASIS and Theodore O. TE, “Merlin M. Magallona: A Giant of his Time, A Man Ahead of his Time” (2022) University of the Philippines College of Law, online: University of the Philippines College of Law https://law.upd.edu.ph/merlin-m-magallona-a-giant-of-his-time-a-man-ahead-of-his-time.

12 “Carrying your Legacy: Magallona, 87” (2022) University of the Philippines, online: University of the Philippines https://upd.edu.ph/carrying-your-legacy-magallona-87/.

13 Pierre MACHEREY, Pour Une Théorie de la Production Litéraire (1966/2014). This original text of Macherey is found online: OpenEdition Books https://books.openedition.org/enseditions/628?lang=en; The English translation by Geoffrey Wall is MACHEREY, Pierre, A Theory of Literary Production (London: Routledge, 2006) at 89Google Scholar. [All page citations below refer to the English translation. The French text refers to the online source.]

14 Ibid., at 97. [Ce qui est important dans une œuvre, c'est ce qu'elle ne dit pas.]

15 Ibid. [ce qui est important, c'est ce qu'elle ne peut pas dire, parce que là se joue l’élaboration d'une parole, dans une sorte de marche au silence]

16 Althusser, supra note 8, at 29. […un autre texte, présent d'une absence nécessaire dans le priemiere]

17 PKP, “Message of Condolence on the Passing Away of Dean Merlin Magallona, A former General Secretary of the PKP-1930” (2022), online: SolidNet http://solidnet.org/article/Philippine-CP-PKP-1930-THE-JANUARY-2022-ISSUE-OF-SULONG/; also found in the Partido Komunista ng Pilipinas (Communist Party of the Philippines-1930) website, online: PKP http://www.pkp-1930.com/january-2022. ‘PKP’ is the Tagalog acronym of the Communist Party of the Philippines-1930. Tagalog is a major language spoken on the main island of Luzon in the Philippine archipelago and is the principal basis of Filipino, the national language. Kasama is Tagalog for “comrade”. It means “one's companion” or “one who joins”. The brackets are added for the benefit of the reader, who may not be familiar with the history of the Philippines.

18 FASSIN, Didier, “How is Critique”, in Didier FASSIN and Bernard HARCOURT, eds., A Time for Critique (New York: Columbia University Press, 2019) at 13Google Scholar.

19 Ibid., at 14.

20 There are two main communist parties in the Philippines: The Communist Party of the Philippines-1930 (PKP) and The Communist Party of the Philippines (Maoist). Union leaders established the PKP during the US colonial regime. The CPP was established by Merlin's erstwhile comrade José María Sison, who would apply Mao's “semifeudalism” and theory of the “protracted people's war”. The CPP would challenge the Marcos dictatorship from the 70s to 80s. It once claimed to have around thirty thousand armed fighters and militias. See WEEKLEY, Kathleen, The Communist Party of the Philippines: A Story of its Theory and Practice (Quezon City: The University of the Philippines, 2001)Google Scholar.

21 The Huk Rebellion was the largest peasant uprising in the post-war period until the Muslim rebellion and the second communist insurgency in the 1970s. Born in 1934, Magallona was around fifteen years old when the Huks finally fought back against the new republic's military. The Huks were mainly peasants who armed themselves during the Japanese occupation. They fought the Japanese well, but when the Americans returned they were prosecuted by the government as insurgents. Ultimately, they fought back and renamed the group “Hukbong Mapagpalaya ng Bayan” (HMB) or People's Liberation Army. See Benedict J. KERKVLIET, The Huk Rebellion: A Study of Peasant Revolt in the Philippines (Quezon City: Ateneo de Manila University Press, 2014).

22 See “Dire et ne pas dire” in Macherey, supra note 14.

23 Macherey, supra note 14 at 93.

24 See “Implicite et Explicite” in Macherey, supra note 14.

25 Fabio LANZA, “Global Maoism”, in Christian SORACE, Ivan FRANCESCHINI, and Nicholas LOUBERE, eds., Afterlives of Chinese Communism (London: Verso and Australian National University Press, 2019), 85.

26 See José María Sison, Defeating Revisionism, Reformism, and Opportunism: Selected Writings 1969 to 1974 (2013) at 145, online: BannedThought https://www.bannedthought.net/Philippines/CPP/Sison/SelectedWritingsOfJoseMariaSison-1968-1991-DefeatingRevisionismReformismAndOpportunism-1969-1974.pdf The Lava family led the PKP from the 1940s. Vicente, Jose, and Jesus Lava were former leaders of the PKP. See DALISAY, J. Y., The Lavas (Pasig City: Anvil Publishing, 1999)Google Scholar; LAVA, Jesus B., Memoirs of a Communist (Pasig City: Anvil Publishing, 2002)Google Scholar.

27 Ibid. Nemenzo, a political science professor, would become President of the University of the Philippines 1999–2005), while Magallona would become Dean of the University of the Philippines College of Law (1995–1999). Sison, an English professor before becoming a top communist cadre, was the putative leader of the biggest leftist group in the Philippines. The Maoist party CPP he founded still controls the New People's Army, its armed wing. For a long time, he lived in exile in Utrecht, the Netherlands, where he recently died when this paper was being written. At one or more points, all three had overlapping academic lives at the University of the Philippines.

28 Merlin M. MAGALLONA and Francisco LAVA, JR. “Footnote on Nationalism: A Case of Literary Piracy”, Philippine Collegian, November 1967, 6. This work is cited in Joseph SCALICE, “Crisis of Revolutionary Leadership: Martial Law and the Communist Parties of the Philippines, 1957-1974” (unpublished dissertation, 2017) at 33. The strength of the dissertation is the retrieval of the day-to-day polemics of the time. But it is quite a simplification for it to argue that the break between the CPP and PKP was merely an expression of the Soviet-China split or that the two parties were merely Stalinist copies. The dissertation, while proffering many previously hidden but illuminating facts about the Philippine communist movement, makes simplistic arguments about the ultimate cause of the party split. In the present authors’ view, the bone of contention between the older and younger cadres was the experience of the Huk Rebellion. A counter-argument may be made that the decisive break arose primarily from interpreting the lessons of the practice of armed struggle and not the Sino-Soviet split as its central cause. However, the latter may have also influenced the break or coincided with dissensions within the Philippine communist movement. In 1999, the PKP pioneers, the Lava brothers Jose and Francisco, responded to a book on the Philippine experience of martial law written by essayist Conrado de Quiros, which they perceived to be biased towards Sison's version of events: Jose B. LAVA and Francisco A. LAVA JR., “Some Fictions About the Left” (1999) 3 Philippine Journal of Public Policy 2 at 14-6. The following passage from their riposte is instructive:

Had de Quiros taken scholarly pains to look for documents of the [PKP] during the 1940s, 1950s and 1960s, or even just to interview the Lavas concerned, he might not have made so grave a mistake of giving currency to such falsities and distortions. He might have fairly reported that the Lavas were not subservient to the Soviet model… [PKP] documents have generally pointed out the protracted nature of the struggle… But after so many years of protracted armed struggle, the Party realized that the geographical conditions of the country, the relation of forces in and around the Philippines, etc. militated against the Maoist protracted war theory—i.e., building bases in the countryside and encircling the cities. Sison's experience over the last 30 years has proven the correctness of this assessment. [Emphasis added.]

The Lavas were responding here to the book published two years before: Conrado DE QUIROS, Dead Aim: How Marcos Ambushed Philippine Democracy (Pasig City: Foundation for Worldwide People's Power, 1997) at 136, 140, 141.

29 See FULLER, Ken, A Movement Divided: Philippine Communism, 1957-1986 (Quezon City: The University of the Philippines Press, 2011)Google Scholar.

30 See RICHARDSON, Jim, Komunista: The Genesis of the Philippine Communist Party, 1902-1935 (Quezon City: Ateneo de Manila University Press, 2011)Google Scholar.

31 See FULLER, Ken, Forcing the Pace: The Partido Komunista ng Pilipinas, from Foundation to Armed Struggle (Quezon City: The University of the Philippines Press, 2007)Google Scholar.

32 Lava, supra note 27. Also cited in Robert LAWLESS, “Review of J. Lava, Memoirs of a Communist”, (2004) 22 Journal of Third World Studies 244 at 245.

33 CPP, “Rectify Errors, Rebuild the Party” (1968), online: Marxists Internet Archive https://www.marxists.org/history/philippines/cpp/1968/rectify-errors.htm

34 The “mode of production” [produktionsweise] is a key concept of Marxism. Traditionally, it refers to the unity of the productive forces and the relations of production that (over)determine a superstructure of law, culture, politics, and ideology. Balibar enumerates the labourer, the means of production, the non-labourer, the property relation connexion, and the real or material appropriation connexion as the elements of any mode of production. See Étienne BALIBAR, “On the Basic Concepts of Historical Materialism”, in Louis ALTHUSSER and Étienne BALIBAR, Reading Capital (London: Verso, 2009), 223 at 225. The section “From periodization to the modes of production” is particularly helpful. The relation between “base” and “superstructure” becomes essential to understanding tactics, strategies, culture, etc. Raymond Williams suggests that the base is the real relations of human beings, which are more dynamic, complex, and contradictory. See Raymond WILLIAMS, “Base and Superstructure in Marxist Cultural Theory”, Culture and Materialism (London: Verso, 2020), 35 at 38. On the relationship between politics and strategy, see Perry ANDERSON, The Antinomies of Antonio Gramsci (London: Verso, 2017). The idea that a mode of production may produce a specific legal form, not legal substance, is argued by Evgeniy Pashukanis and explored further in Miéville, supra note 2, which, in turn, is critiqued by Bill Bowring and B.S. Chimni, supra note 2.

35 Especially after the 1990s when the CPP itself suffered a break up. See Armando LIWANAG, “Reaffirm our Basic Principles and Carry the Revolution Forward” (1991), online: Marxists Internet Archive https://www.marxists.org/history/philippines/cpp/liwanag/1991/reaffirm.htm

36 Lassa OPPENHEIM, International Law: A Treatise, vol. 1 (London: Longmans, 1905).

37 Umut ÖZSU, “The Ottoman Empire: The Origins of Extraterritoriality, and International Legal Theory”, in Anne ORFORD and Florian HOFFMANN, eds., The Oxford Handbook of the Theory of International Law, (Oxford: Oxford University Press, 2016), 123 at 132–6.

38 Indeed, the rhetorical formulation of a double ‘semi’ is undoubtedly Chinese. Parallel constructions form part of Chinese rhetoric. For a discussion of the concept, see Toni BARLOW, “Semifeudalism, Semicolonialism”, in Christian SORACE, Ivan FRANCESCHINI, and Nicholas LOUBERE, eds., Afterlives of Chinese Communism (London: Verso, 2019), 237 at 240. Mao Zedong connected protracted war with China's semicolonial, semifeudal mode of production. This is clear in Tse-tung MAO's “On Protracted War”, Selected Works of Mao Tse-tung, vol. II (1967), online: Marxists Internet Archive https://www.marxists.org/chinese/maozedong/marxist.org-chinese-mao-193805b.htm.

39 Amado GUERRERO, Philippine Society and Revolution (California: International Association of Filipino Patriots, 1970). Published in Hong Kong by the Communist Party of China's Ta Kung Pao [大公报], it is the so-called bible of the Maoist insurgency in the Philippines, written under what is now Sison's famous nom de guerre.

40 Ibid., at 63–4.

41 A PKP comment written by “Frunze” (Nemenzo) quoted in Sison's “On Lavaite” states: “Guerrero's dogmatism is even more absurd because the formulas he preaches are drawn from the experience of another country, and he does not consider the relevance of that experience to the realities we have been through since 1950. Instead, he arbitrarily selects facts and figures from different sources and fits all these into the Chinese schema” [italics supplied]. Sison, supra note 27.

42 Merlin M. MAGALLONA, “Some Patterns of Political and Economic Developments in the ASEAN”, (1981) Asian Studies Journal at 2, online: Asian Studies Journal https://asj.upd.edu.ph/mediabox/archive/ASJ-19-1981/magallona.pdf. ASEAN is the Association of Southeast Asian Nations, now comprising Brunei, Vietnam, Laos, Cambodia, Myanmar, Singapore, Malaysia, Thailand, Indonesia and the Philippines. It is now a fully-fledged international organization.

43 UN General Assembly Resolution 3201 (S-VI) 1 May 1974 “Programme of Action on the Establishment of a New International Economic Order)”, online: UN Documents http://www.un-documents.net/s6r3201.htm.

44 Magallona, supra note 43 at 15.

45 In his memoir, Benedict Anderson recalls his first fieldwork into the Philippines pre-martial law when Nemenzo introduced him to a PKP stronghold in Central Luzon. Here, two young party members assisted in his research. He writes: “Some years later, I discovered to my horror that when Nemenzo broke with the Old Party, those same two sweet boys were murdered by the veterans on party orders.” Benedict ANDERSON, A Life Beyond Boundaries: A Memoir (London: Verso, 2016), 131. Nemenzo himself would allegedly be made the target of an assassination posse sent by the PKP leadership following his ousting from the party for opposing the political arrangement with Marcos and for organizing an armed Cuban-inspired youth wing of the PKP, allegedly responsible for a series of bombing attacks around Manila without party blessing. It is unclear what Magallona's role was in this decision of the PKP leadership. On this sorry episode in the history of Philippine revolutionary movements, see Patricio ABINALES, “Pasion's Passion: Book Review: Living In Times of Unrest: Bart Pasion and the Philippine Revolution by Eduardo C. Tadem”, Positively Filipino (14 April 2021), online: Positively Filipino http://www.positivelyfilipino.com/magazine/pasions-passion. The book's subject was a key peasant leader of the PKP, Bart Pasion, a veteran of the anti-Japanese war. See also Fuller, supra note 30 at 123–4. The Lavas have denied that the Party sanctioned the use of violence against any of their erstwhile comrades, saying “[i]deas cannot be ‘killed’, and resorting to violence is a counterproductive manifestation of gross incompetence, as well as vindictive malevolence”. Lava and Lava, supra note 29 at 16. Nemenzo and Magallona somehow co-existed on campus as progressive academics with a shared critique of the political status quo. But over time, the description “Marxist” comfortably stuck to Nemenzo more than it did to Magallona. Nemenzo wore the label on his sleeve as a political science academic who operated largely in the parliament of the streets; this was not the case with Magallona, who was often enlisted to provide intellectual and legal heft to the government's foreign policy and international legal initiatives.

46 Merlin M. MAGALLONA, “A Contribution to the Study of Feudalism and Capitalism in the Philippines”, in Feudalism and Capitalism in the Philippines: Trends and Implications (Quezon City: Foundation for Nationalist Studies, 1982), 26 at 29.

47 Ibid., at 29.

48 Weekly, supra note 21 at 104.

49 In 1974, Japan became the Philippines’ leading source of foreign investments. Magallona, supra note 47 at 55. See also Merlin M. MAGALLONA, Japan in the New Stage of World Capitalism: A Regional Context of Problems in Law and Development in Philippine-Japanese Relations (Quezon City: University of the Philippines Law Center, 1995); Merlin M. MAGALLONA, “Japan and the Industrial Integration of ASEAN: The Philippines as a Subcontracting State”, in Globalization and Sovereignty (Quezon City: University of the Philippines Law Center, 2016), 293.

50 See Arsenio BALISACAN and Hal HILL, “The Philippine Development Puzzle”, (2002) Southeast Asian Affairs 237 for an account by mainstream economists.

51 In 2019, there were 2.18 million workers and an estimated 210 billion pesos (4.2 billion USD) of remittances. This number does not include Filipinos who do not go through government agencies. Philippine Statistics Office (2020), online: Philippine Statistic Authority https://psa.gov.ph/statistics/survey/labor-and-employment/survey-overseas-filipinos#:~:text=The%20number%20of%20Overseas%20Filipinos,2.18%20million%20reported%20in%202019.&text=The%20number%20of%20Overseas%20Contract,from%202.11%20million%20in%202019.

52 Statista, “Share of Economic Sectors in the GDP in the Philippines” (2021), online: Statista https://www.statista.com/statistics/578787/share-of-economic-sectors-in-the-gdp-in-philippines/.

53 The World Bank, “Agriculture, Forestry, and Fishing, value added (% of GDP), Philippines” (2020), online: World Bank https://data.worldbank.org/indicator/NV.AGR.TOTL.ZS?locations=PH.

54 Scott DAVIDSON, ed. The Law of Treaties (London: Ashgate, 2004). Republished in 2016 by Routledge.

55 Davidson, “Introduction”, supra note 55 at xi, xix.

56 For some details on Magallona's life as a party member, his travels to the USSR and the Soviet Bloc, and his life in the underground, see the op-ed piece: Ruben TORRES, “Farewell to a Dear Friend and Comrade,” The Manila Times (7 January 2022). Torres, who would later serve as Secretary of Labor and Executive Secretary, admits that Merlin recruited him to the PKP in 1965. They travelled together to the Soviet Bloc, went underground, were detained, and received amnesty from the dictatorship.

57 In a landmark 1977 book on human rights in the Philippines, answers to the question “How has martial law affected human rights…?” were collected. Magallona's and Nemenzo's responses are a study in contrasts and an insight into the relative autonomy of the university under a situation of political oppression. Nemenzo responded briefly thus: “Since I have no wish to go back to jail, I prefer to keep my thoughts on the subject a matter of private concern.” (Francisco A. NEMENZO, “Response to Question No. 3” in Purificacion VALERA-QUISUMBING and Armando F. BONIFACIO, eds., Human Rights in the Philippines: An Unassembled Symposium (Quezon City: University of the Philippines Law Center, 1977) 81 at 112. On the other hand, Magallona echoed the classic Marxist concern for solidarity rights but elided mention of the tortures, arrests, and other egregious violations of civil and political rights committed by the agents of martial law that other contributors to the publication courageously pointed out in their answers: “Martial law has produced strong negative effects on the right of the working people to form organizations to defend or advance their interests. The curtailment of the right to strike is a serious blow to the trade union movement. Since the strength of the working people as expressed in mass organizations is the only stable basis of economic development and social progress (in terms of the interests of the broad ranks of the working people), the struggle for human rights as this is explained in my response to Question No.1 above, has suffered a setback under the martial law administration… The martial law administration lacks the perception that a new society can only be built through the mobilization and participation of politically active masses, not by technocratic decision-making. Concomitantly, as martial law has impeded the organizational advance[ment] of the working people, it has strengthened in effect and by direct measures the position of social groups, which thrive on the right to make [a] profit at the expense of the labor of Filipino working people, particularly the foreign monopoly groups.” (Merlin M. MAGALLONA, “Response to Question 3”, ibid., at 104–5). The UP Law Center had sent out questionnaires on six aspects of human rights in the Philippines to respondents across the political spectrum: from members of the academe, business, government (civilian and military), religious organizations, workers and peasant groups, and artist and professional groups. The responses were then gathered into a 278-page “unassembled symposium”. The more cautious responses proffered by the former may be explained by the fact that Magallona had the cover of the political arrangement between the PKP and the Marcos administration and could invoke the arrangement as the basis for his studied criticisms of the government. Nemenzo, however, did not have the same protection; by this time, he had already been expelled from the Party (recall the discussion above in n 46). Ibid., at 237.

58 Merlin M. MAGALLONA, “The Concept of Jus Cogens in the Vienna Convention on the Law of Treaties”, in S. DAVIDSON, ed., The Law of Treaties (London: Routledge, 2004), 495 at 497.

59 Ibid.

60 Ibid., at 502.

61 Iain SCOBBIE, “A View of Delft: Some Thoughts about Thinking about International Law”, in Malcom EVANS ed. International Law (Oxford: Oxford University Press, 2018), 51 at 70.

62 Bill BOWRING, “Positivism versus Self-determination: the Contradictions of Soviet International Law” in Susan MARKS, ed., International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008), 133 at 136.

63 Scobbie, supra note 62. Vishinsky, cited in Bowring, ibid., mentions the treaty as the basic source of international law.

64 Magallona, supra note 59 at 497.

65 Ibid., at 501.

66 Magallona, supra note 59 at 516.

68 Antony ANGHIE, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005).

69 General Act of the Berlin Conference on West Africa (signed 26 February 1885) (1909) 3 American Journal of International Law 51 Supplemental Official Documents, at 7–25.

70 Treaty of Peace between the United States of America and the Kingdom of Spain of 10 December 1898 (entered into force 11 April 1899) 30 Stat. 1754.

71 Treaty between His Britannic Majesty and the King of the Netherlands, Respecting Territory and Commerce in the East Indies of 17 March 1824, Consolidated Treaty Series, International Court of Justice.

72 Antonio CASSESE, International Law (Oxford: Oxford University Press, 2005); Paola GAETA, Jorge VIÑUALES, and Salvatore ZAPPALÀ, Cassese's International Law (Oxford: Oxford University Press, 2020), at 70.

73 Magallona, supra note 59 at 515.

74 Indeed, many Third World states believed that the draft articles of the Vienna Convention embodied a new international law that “was becoming a set of legal principles that applied to all countries and not a few favoured States”. Representative of Ghana as cited in R. KEARNEY and R. DALTON, “The Treaty of Treaties” in S. DAVIDSON, ed., The Law of Treaties, (London: Routledge 2004), 3 at 3, 9.

75 These quoted words appear in the essay's conclusion. Magallona, supra note 59 at 516.

76 Merlin M. MAGALLONA, “On the ‘Philosophical Basis’ of Human Rights” in Merlin M. MAGALLONA, International Law Issues in Perspective (Quezon City: University of the Philippines Law Center, 1996), 145 at 145.

79 Ibid., at vii.

80 Ibid., at 149.

81 Ibid., at 150.

82 Ibid. In the aforementioned 1977 book, to the question “what must be done in order to encourage respect for and ensure observance of human rights in the Philippines?”, Magallona responded in part, “[i]n social reality, human rights are activities, not concepts…They are to be acted out… Human rights are not studied for the sake of study. Human rights are not a fetish but a dynamic living force for progressive change even as, at the same time, the product of that change. An effective way to nullify human rights is to study them to death.” (Merlin M. MAGALLONA, “Response to Question 6” in Valera-Quisumbing and Bonifacio, supra note 58 at 195).

83 Ibid., at 150.

84 Magallona, supra note 77 at 151 [italics in the original].

85 Ibid., at 151–2.

86 1987 Constitution, art. III, sec. 4.

87 To use the proper analytical positivist's term. See Leslie Green, “Introduction” in H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 2012), i at xix.

88 Magallona, supra note 77 at 152–3. This is a marked departure from an earlier definition of human rights he had adhered to. In the aforementioned 1977 human rights book, consistent with Marxist orthodoxy, he defined Human Rights as “liberties that necessarily pertain to the great majority of working people in their collective and organized efforts for the transformation of the social framework, to the end that the most human conditions in society are realized in terms of freedom from exploitation and want, the fulfillment of the right to work, and the abolition of poverty and illiteracy. In concrete social realities, human rights are exemplified in the working people's right to strike against oppressive condition[s] of employment, and the right to mobilize themselves and participate fully in the political decisions of the country.” (Merlin M. MAGALLONA, “Response to Question 1”, in Valera-Quisumbing and Bonifacio, supra note 58 at 21).

89 It bears noting that Magallona's academic career intersected with and benefited from that of the prize-winning liberal essayist and statesman Salvador “ SP” Lopez, who, prior to his presidency at the University of the Philippines (1969–1975), served as Chair of the UN Commission on Human Rights and, subsequently, a UN Rapporteur to the Economic and Social Council on Freedom of Information. Lopez played a key role in crafting UN human rights individual complaints mechanisms. In 1969, when Lopez became UP President, Magallona was appointed assistant professor at the College of Law. Lopez was also responsible for the policy to reinstate UP faculty released from Martial law detention automatically: 1 University of the Philippines Gazette 4 (30 April 1971), at 48; see “Salvador P. Lopez: Diplomat and Nationalist” University of the Philippines Forum (July–August 2011), at 6–8; Lisandro E. CLAUDIO, Liberalism and Postcolony: Thinking the State in the 20th Century Philippines (Quezon City: Ateneo De Manila University Press, 2017), at 111–46; and Steven L.B. JENSEN, The Making of International Human Rights: The 1960s, Decolonization and the Reconstruction of Global Values (Cambridge: Cambridge University Press, 2016); Francisco A. NEMENZO, “What I Remember of SP Lopez” University of the Philippines Forum (July–August 2011), at 5.

90 Ramon CASIPLE, “Debate: Burning Issues in the Human Rights Debate: Questioning Human Rights” (1995) 1 The Human Rights Journal 1 at 82–93.

91 On CPP and human rights in recent years, see Nathan Gilbert QUIMPO, “The Use of Human Rights for the Protraction of War” (2006) 21(1) Kasarinlan: Philippine Journal of Third World Studies 34–54 and Jayson S. LAMCHECK and Emerson M. SANCHEZ, “Friends and Foes: Human Rights, the Philippine Left and Duterte, 2016-2017” (2021) 45(1) Asian Studies Review at 28–47.

92 Charter of the United Nations, 1 U.N.T.S.XVI (entered into force, 24 October 1945) art. 103.

93 Universal Declaration of Human Rights, GA Res. 217 (III), UN Doc. A/810 (1948) arts. 55–6.

94 Merlin M. MAGALLONA, “The San Francisco Peace Treaty with Japan and the Case of Filipino ‘Comfort Women’”, in Merlin M. MAGALLONA, International Law Issues in Perspective (Quezon City: University of the Philippines Law Center, 1996), at 266–77.

95 Ibid., at 267.

96 Ibid., at 268.

97 See Perfecto V. FERNANDEZ, “Lecture on Dictatorship” in Marcia Ruth Gabriela P. FERNANDEZ, ed., Law and Society: Collected Works of Perfecto V. Fernandez (Quezon City: University of the Philippines Law Center, 2005) 507 at 507–13.

98 Republic v Sandiganbayan [2003] G.R. No. 104768 [En Banc] 21 July 2003. This essay's citations to Philippine cases are from the Philippine Supreme Court's official website's jurisprudence archive at https://elibrary.judiciary.gov.ph/search.

99 Ibid.

100 Merlin M. MAGALLONA, The Supreme Court and International Law: Problems and Approaches in Philippine Practice (Quezon City: University of the Philippines Law Center, 2010), 73 at 77, citing International Covenant on Civil and Political Rights, 16 December 1966, 1999 UN Treaty Series, art. 2, (entered into force 23 March 1976).

101 Ibid.

102 Ibid., at 77–8.

103 Ibid., at 79.

104 Magallona's insistence on methodological consistency is also rooted in his dualist theory of the Philippine practice of international law, in which a protectionist Constitution is supreme over international law. Magallona, supra note 101 at 1–8. See also Merlin M. MAGALLONA, A Primer in International Law in Relation to National Law (Quezon City: Central Professional Books, 1997); Merlin M. MAGALLONA, Fundamentals of Public International Law (Quezon City: C & E Publishing, 2005).

105 Harcourt, supra note 3 at 43: “The process of theorization challenges and pushes my own praxis and vice versa … the praxis also confronts my critical theories and challenges them…As a critic, I must engage, I must practice, and I must critique and reflect … I agonize over this relation between my theory and praxis”.

106 “Towards the Consolidation and Progressive Development of the Principles and Norms of International Economic Law”, Sixth Committee of the UN General Assembly A/C.6/34/L.7, Working Paper, 2 November 1979.

107 Merlin M. MAGALLONA, “Preface” in Merlin M. MAGALLONA, International Law Issues in Perspective (Quezon City: University of the Philippines Law Center, 1996), v at vi. The resolution, as approved, became UN General Assembly Resolution 35/166, Consolidation and Progressive Development of the Principles and Norms of International Economic Law, Relating in Particular to the Legal Aspect of the New International Economic Order, A/RES/34/150 (15 December 1980).

108 Magallona, supra note 109 at vi.

109 Ibid.

110 Ibid., at vi–vii.

111 Ibid., at vii.

112 Ibid.

113 MAGALLONA, Merlin M., “Towards the Consolidation and Progressive Development of the Norms of International Economic Law”, in Merlin M. MAGALLONA, International Law Issues in Perspective (Quezon City: University of the Philippines Law Center, 1996), 112 at 114Google Scholar.

114 Ibid., at 114–5, quoting UN General Assembly Resolution 3201 (S-VI) 1 May 1974 (Programme of Action on the Establishment of a New International Economic Order).

115 Ibid., at 119.

116 Ibid., at 120.

117 Ibid., at 121.

118 UN General Assembly Resolution 3201 (S-VI) 1 May 1974.

119 UN General Assembly Resolution 3281 (XXIX) of 12 December 1974.

120 UN General Assembly Resolution 3362 (S-VII) of 16 September 1975.

121 Magallona, supra note 115, at 120, quoting Charter of the United Nations, 1 U.N.T.S.XVI (entered into force, 24 October 1945, Preamble.

122 Ibid., quoting Charter of the United Nations, 1 U.N.T.S.XVI (entered into force, 24 October 1945), art. 1(3).

123 Ibid., at 120, quoting Charter of the United Nations, 1 U.N.T.S.XVI (entered into force, 24 October 1945), art. 55.

124 Ibid., quoting Charter of the United Nations, 1 U.N.T.S.XVI (entered into force, 24 October 1945), art. 56.

125 Ibid., at 121–2.

126 Ibid., at 122.

127 Ibid., at 123, citing Charter of the United Nations, 1 U.N.T.S.XVI (entered into force, 24 October 1945), art. 13(1).

128 In particular, the United Nations Conference on Trade and Development (ibid., at 125). See also Antony ANGHIE, “Legal Aspects of the New International Economic Order” (2014) 6 Humanity Journal 148.

129 Magallona, supra note 115 at 124, quoting UN General Assembly Resolution 3201 (S-VI) 1 May 1974.

130 For instance, B.S. Chimni has argued: “While it is true that the State is, in terms of international demarcation of territories, an institution of collective property, the ultimate control over this property is to vest with people. From this perspective, there is a need to address the difficult question of how to give legal content to peoples’ sovereign rights. There is often in this respect the absence of appropriate legal categories and are difficult to implement in practice” (B.S. CHIMNI, “Third World Approaches to International Law (TWAIL): A Manifesto” (2006) 8 International Community Law Review 24).

131 Merlin M. MAGALLONA, “National Interest and the New International Economic Order” in Merlin M. MAGALLONA, International Law Issues in Perspective (Quezon City: University of the Philippines Law Center, 1996), 129 at 134.

132 Ibid., at 135–6.

133 Ibid., at 137.

134 Ibid., at 138

135 Ibid., at 141.

136 Ibid.

137 PKP, “The Philippine Path for Economic Independence, Popular Democracy, and Social Progress”, Ninth Congress Party Programs and Aims (30 December 1986), online: PKP http://www.pkp-1930.com/pkp-9th-congress?fbclid=IwAR0an0UD9wWOZ8npdW9T4ySeezFb6WhtVtSREMdn-gQmFUO_kg-hYmlbPF4.

138 Ibid.

139 Magallona, supra note 133 at 141.

140 Merlin M. MAGALLONA, General Secretary of the Central Committee, Communist Party of the Philippines (PKP) Speech, in Meeting of Representatives of Parties and Movements Participating in the Celebration of the 70th anniversary of the Great October 1917 Socialist Revolution, Moscow, October 4-5 1987 (Moscow: Novosti Press Agency Publishing House, 1987), at 344. His speech said in part thus:

And how small is the number of big-time capitalists [on] the boards of directors of transnational corporations who decide on the plunder of vast neocolonial territories and countries and control their economies? As time passes, more and more extensive human and natural resources in the Third World are coming under the domination of relatively fewer monopolists. For that matter, how small is the number of financiers and bankers who decide on the pauperization of nations through [the] unpayable foreign debt? …

141 See current efforts “to present, deliberate, and develop proposals for a New International Economic Order fit for the twenty-first century” (Progressive International, “New International Economic Order: 1974–2024”, online: Progressive International https://act.progressive.international/nieo/). On 12 December 2022, the UN General Assembly, voting 123–50 with one abstention (Turkey), adopted a draft resolution entitled “Towards a New International Economic Order” – a symbolic vote for now, yet evocative of the continuing appeal of the NIEO. Qatar introduced the full text of the resolution as A/C.2/77/L.46 on 15 November 2022. The official press statement of the UN issued following the vote declared in part that:

By its terms, the Assembly expressed concern over the increasing debt vulnerabilities of developing countries, the net negative capital flows from those countries, the fluctuation of exchange rates and the tightening of global financial conditions, and in this regard stressed the need to explore the means and instruments needed to achieve debt sustainability and the measures necessary to reduce the indebtedness of developing states. United Nations, “General Assembly Takes Up Second Committee Reports, Adopting 38 Resolutions, 2 Decisions: Texts Aimed at Eradicating Rural Poverty, Promoting Development among Approved” (14 December 2022) GA/1248, online: UN https://press.un.org/en/2022/ga12482.doc.htm. Unsurprisingly, opposition to the resolution came largely from the developed world: the United States of America and European states and their rich allies such as Israel, Japan, and Korea.

142 Anghie, supra note 130 at 156. Moreover, recent scholarship (Jochen VON BERNSTORFF and Philipp DANN, “Introduction” in von Vernstorff and Dann, supra note 2 at 3) argues that:

These [NIEO] debates and their third-world international legal protagonists, as well as the new embattled concepts, have often been portrayed as a short-lived Southern or socialist (Cold War-) revolt within UNGA with ultimately minor and negligible implications for international law and legal scholarship…[N]othing could be more mistaken. Not only that, the outcome of this battle has fundamentally shaped what we presently conceive of as international legal structures. With hindsight, we hold that international legal structures in many areas of international relations have been transformed during this era, albeit with the effect of enabling a transition from classic European imperialism to new forms of US-led Western hegemony. The underlying aspirations, strategies, and failures of this battle thus are of vital importance for any future project aiming to address and alter the relationship between international law and fundamental inequalities in this world.

143 Convention on the Law of the Sea, 10 December 1982; 1833 U.N.T.S. 397 (entered into force 16 November 1994), online: UN Treaty Collection https://treaties.un.org/doc/Publication/UNTS/Volume%201833/volume-1833-A-31363-English.pdf.

144 Merlin M. MAGALLONA, “The Treaty of Paris of 10 December 1898: History and Morality in International Law” (2000) 75 Philippine Law Journal 2 159–71.

145 Ibid., at 159.

146 Ibid., at 160.

147 One of his last publications was MAGALLONA, Merlin M., The Philippines in the International Law of the Sea (Quezon City: University of the Philippines Law Center, 2015)Google Scholar, an anthology of eight of his essays and lectures on the topic written between 1995 and 2013.

148 ARREGLADO, Juan M., Delimitation of the Extent of the Philippine Maritime Territory (Manila: University Book Supply, 1982), at 31–5Google Scholar.

149 Treaty Between the Kingdom of Spain and the United States of America for Cession of Outlying Islands of the Philippines of 7 November 1900 31 US Stat. 1942; II Malloy 1696; Official Gazette, online: Official Gazette https://www.officialgazette.gov.ph/1900/11/07/the-philippine-claim-to-a-portion-of-north-borneo-treaty-between-the-kingdom-spain-and-the-united-states-of-america-for-cession-of-outlying-islands-of-the-philippines-1900/.

150 Convention Between the United States of America and Great Britain Delimiting the Boundary Between the Philippine Archipelago and the State of North Borneo of 2 January 1930, entered into force 13 December 1932 Official Gazette, online: Official Gazette https://www.officialgazette.gov.ph/1932/12/15/convention-between-the-united-states-of-america-and-great-britain-delimiting-the-boundary-between-the-philippine-archipelago-and-the-state-of-north-borneo-1930/.

151 For a comprehensive account of this position, see BAUTISTA, Lowell B., The Philippine Treaty Limits: Historical Context and Legal Basis in International Law (University of the Philippines Law Center, 2015)Google Scholar.

152 Magallona v Executive Secretary [2011] G.R No. 187167 [En Banc] 16 August 2011.

153 Republic Act 9522, “An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended Republic Act No. 5446, to Define the Archipelagic Baseline of the Philippines and for Other Purposes” (10 March 2009) Official Gazette, online: Official Gazette https://www.officialgazette.gov.ph/2009/03/10/republic-act-no-9522/ [RA 9522].

154 Republic Act 3046, “An Act to Define the Baselines of the Territorial Sea of the Philippines” (17 June 1961), UN.org, online: UN https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PHL_1961_Act.pdf. It was amended by Republic Act 5446 to correct certain typographical errors: Republic Act 5446, “Act to Amend Section One of Republic Act Numbered Thirty Hundred and Forty-Six, entitled ‘An Act to Define the Baselines of the Territorial Sea of the Philippines’” (18 September 1968), Official Gazette, online: Official Gazette https://www.officialgazette.gov.ph/1968/09/18/republic-act-no-5446/.

155 Arreglado, supra note 150 at 12.

156 Ibid.

157 Bautista, supra note 153, Appendix 6 at 148–9.

158 Ibid., at 149.

159 Among the petitioners were students from the public international law class at the University of the Philippines College of Law taught by Professor H. Harry L. Roque, Jr., the lead counsel for the Petitioners, was himself a former student of Magallona.

160 RA 9522, supra note 155.

161 Magallona v Executive Secretary, Petition (23 March 2009) at 3.

162 Ibid., at 39.

163 The Philippine Constitution (1935) art. 1, Official Gazette, online: Official Gazette https://www.officialgazette.gov.ph/constitutions/the-1935-constitution/.

164 The Philippine Constitution (1973) art. 1, Official Gazette, online: Official Gazette https://www.officialgazette.gov.ph/constitutions/1973-constitution-of-the-republic-of-the-philippines-2/.

165 The Philippine Constitution (1987) art. 1, Official Gazette, online: Official Gazette https://www.officialgazette.gov.ph/constitutions/1987-constitution/.

166 Magallona v Executive Secretary, supra note 163 at 153–6.

167 Ibid., at 48–9, quoting the Philippine Constitution (1987), art 1.

168 PD 1596, “Declaring Certain Area Part of the Philippine Territory and Providing for Government and Administration” (11 June 1978), Official Gazette, online: Official Gazette https://www.officialgazette.gov.ph/1978/06/11/presidential-decree-no-1596-s-1978/.

169 Magallona v Executive Secretary, supra note 163 at 48–9.

170 Ibid., at 53–5; see arts. 46–9, UNCLOS III supra note 146.

171 Ibid., at 2, quoting the Philippine Constitution (1987), art. 1, supra note 163.

172 Ibid., at 61; see arts. 52–3, UNCLOS III supra note 146.

173 Ibid., at 62.

174 Ibid., at 63.

175 The PSC ruled (ibid.):

Even under [the] petitioners’ theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III…UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory.

176 The US State Department, however, argues that RA 9522 did not make clear whether the waters within the baselines are archipelagic or remained as internal waters under the Philippine Constitution: United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, “Philippines: Archipelagic and other Maritime Claims and Boundaries” (Limits in the Seas Report no. 142, 15 September 2014), online: https://2009-2017.state.gov/documents/organization/231914.pdf.

177 On the one hand, the Philippine negotiating team at UNCLOS III entered reservations to the treaty that essentially sought to preserve the Philippine position expressed in the notes verbales of 1955–1956 and the KIG claim. On the other hand, they also committed the Philippines to the same treaty by signing it. See Philippine Declaration to the UN Secretary-General (10 December 1982), online: 2009–2017 Archive for the US Department of State https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec. See especially paras. 1–3, 6–7 of the Declaration. Magallona criticized this schizophrenic position taken by the Philippines. See Merlin M. MAGALLONA, “The Ecuadorian and Philippine Models: Distinctions and Implications” in Merlin M. MAGALLONA, The Philippines in the International Law of the Sea (Quezon City: University of the Philippines Law Center, 2015), 17 at 17–29.

178 Magallona v Executive Secretary, supra note 154.

179 The PSC held thus (Magallona v Executive Secretary, supra note 154):

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III…Second, Article 47 (2)…

180 See PD 1596, supra note 170, first “whereas” clause.

181 MAGALLONA, Merlin M., “Internationalization of Philippine Territory: The Question of Boundaries” in Merlin M. MAGALLONA, The Philippines in the International Law of the Sea (Quezon City: University of the Philippines Law Center, 2015), 116 at 133Google Scholar.

182 Merlin M. MAGALLONA, “Demystifying [the Republic of the Philippines's] Delimitation Dilemma” in MAGALLONA, Merlin M., The Philippines in the International Law of the Sea (Quezon City: University of the Philippines Law Center, 2015), 151 at 161–2Google Scholar.

183 The Philippine Memorial to the South China Sea arbitral proceeding omitted mention and meaningful discussion of PD 1596 of 1978 in its statement of relevant Philippine laws on territorial and maritime domains. See In the Matter of the South China Sea Arbitration: An Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea (The Republic of the Philippines v The People's Republic of China), Philippine Memorial Vol 1 (30 March 2014), at paras. 3.2–3.7.

184 In the Matter of the South China Sea Arbitration: An Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea (The Republic of the Philippines v The People's Republic of China), Arbitral Award of 12 July 2016, PCA Case No 2013-19, at para. 223. Aside from the fact that PD 1596 of 1978 was expressly attached to the TOP ITL, it had the effect of constituting an offshore archipelago of the area it straddled, with the maritime features; that is, the continental shelf and the waters within such area subject to full Philippine sovereignty. But also often missed in popular discussion of the SCS arbitration is that the AA held that the creation of an offshore archipelago in the Spratlys, whether in its entirety or only in part, violated the Law of the Sea. Ibid., at paras. 571–6. Instead, the Arbitral Award ruled that the Spratlys, outside of low tide elevations, was little more than rocks or high tide elevations able to generate no more than a territorial sea. Ibid., at para. 626. The Philippines had argued in the arbitral proceedings that treating the Spratlys as but a collection of rocks and Low-Tide Elevations (LTEs) would lessen showdowns of sovereignty over such insignificant features and thus help establish law and peace in the South China Sea. Ibid., at para. 421. However, the Arbitral Award did not quite capture the nature of the Philippine claim to maritime sovereignty under the TOP regime, as the claim considered the waters within the TOP ITL as internal waters while the territorial sea is measured from the archipelago's baselines. See Magallona, supra note 186 at 155–61.

185 Republic of the Philippines v Province of Palawan [2020] G.R. No. 170867, G.R. No. 185941 [En Banc, Consolidated Cases, on Motion for Reconsideration] 21 January 2020. The ruling quoted in toto paras. 285–90 of the AA. See AA supra note 186 at 121–2.

186 We borrow a phrase from the title of a famous essay. See Renato CONSTANTINO, “Veneration Without Understanding (1972) 1 Journal of Contemporary Asia 3. The incoherence in Philippine reception of the 2016 SCS AA is discussed in greater detail in a book chapter for an anthology on the pedagogy of international law by the British Institute of International and Comparative Law: Romel Regalado BAGARES, “Teaching the Philippine National Territorial Imaginary or ‘Geobody’ after the 2016 South China Sea Arbitral Award” (forthcoming, Routledge).

187 On inversion as a Marxist practice, there is a discussion in ALTHUSSER, Louis, “Contradiction and Overdetermination”, For Marx (London: Verso, 2005), 87Google Scholar at 89–94. See also Marx's inversion of Hegel and the need to reverse the invertedness produced by the commodity form in Karl Marx, Capital, vol. 1 (London: Penguin, 1990) at 103, 163.

188 See TANAKA, Yoshifumi, The South China Sea Arbitration: Toward an International Legal Order in the Oceans (London: Hart Publishing, 2020)Google Scholar.

189 See, for example, MAGALLONA, Merlin M., “The New Bases Treaty: Political and Legal Issues” in Merlin M. MAGALLONA, International Law Issues in Perspective (Quezon City: UP Law Center, 1996) 171Google Scholar at 171–200. In his 1987 Moscow speech, Magallona (supra note 142 at 344–5) also said:

The two largest military bases of the United States are established in the Philippines. The nuclear weapons in these bases place the survival of the Filipino people in the hands of the US military forces. By what necessity, how, when and against whom will these weapons be used and for whose interests are they deployed on Philippine soil? These questions are not for the Filipino people to decide, not even for the Philippine government to decide. These are issues which are for the exclusive decision of US politico-military leaders. Hence, the right to life—the central question of national sovereignty—hangs by some unknown contingency that is left to US imperialism… I do not think that US imperialism has imposed upon this kind of brutality in any other country.

On 16 September 1991, the Philippine Senate voted to discontinue a treaty allowing the US bases in Subic and Clarkfield, the two largest US military facilities outside the American mainland. However, Chinese actions in the South China Sea opened new opportunities for their return. A Visiting Forces Agreement (VFA) and, more recently, an Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States ensured the return of a US military presence in the country. The leading cases involving the return of US military presence on Philippine shores are Bayan v Zamora [2000] G.R. No. 138570, G.R. No. 138572, G.R. No. 138587, G.R. No. 138698 (En Banc, Consolidated Cases] 10 October 2000 (on VFA) and Saguisag v Executive Secretary [2016] G.R. No. 212426, G.R. No. 212444 [En Banc, Consolidated Cases] 12 January 2016 (on EDCA). The PSC was trounced in all constitutional challenges filed against the VFA and its various iterations between these two cases. Thus, it had taken twenty-five years for the Philippine Supreme Court to wholly reverse the popular action taken by the Philippine Senate against US military presence in the Philippines. See Roland G. SIMBULAN, “The Historic Senate Vote of 16 September 1991: Looking Back and Looking Forward Twenty-Five Years After” (2018) 66 Philippine Studies: Historical & Ethnographic Viewpoints 3.

190 See also MAGALLONA, Merlin M., “A Framework for the Study of National Territory” in Merlin M. MAGALLONA, The Philippines in the International Law of the Sea (Quezon City: University of the Philippines Law Center, 2015), 78Google Scholar at 91.

191 A complete annotated bibliography of Magallona's works is yet to be made. Perhaps this is something that his academic home for over half a century can easily do if a Philippine viewpoint on international law is to be given wider access under the current push for an Asian TWAIL.

192 JAMESON, Fredric, “Third-World Literature in the Era of Multinational Capitalism”, in Allegory and Ideology (London: Verso, 2020) at 159Google Scholar.