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5th International Conference of Chief Justices of the WorldDraft speech ofHon’ble Mr Justice L. A. QuisumbingJudge of Supreme Court, Manila, Philippines[Hon’ble Mr Justice L.A. Quisumbing had sent his speech in advance, but could not come to participle owing to compellingcircumstances at the last moment. However, his speech is being published]Has the time arrived for the idea of truly enforceable international law to reign in the global arena? Is international law nowenforceable in cases among individuals in domestic courts as they are for sovereign states in international tribunals ? Dopeople think of and accept international law as part of legal culture, what jurists and laymen alike universally consider the“the Rule of Law,” rather than of naked force among men and among nations ?Questions like these are not novel. Nor are they idle. They bring anew, and to the forefront of our concerns, the profoundneed for rationality, predictability and reciprocity in the conduct of foreign policy and international relations. But even moreimportant, they signal our individual as well as collective longing for human rights and for safety and security, for rectitudeand respect in our daily lives.For as well said on television by an Iraqi refugee, “The more we are told we are free, the more we fear for our lives and forour future.” Our anxiety breeds doubt. In the words of our Chief Justice Hilario G. Davide, Jr. speaking recently beforeEuropean and Asian jurists and advocates. “It makes absolutely no sense to assert human rights without at the same timeclaiming them at all.”My short answer to the principal query propounded before us is affirmative. It could be an enthusiastic, “Yes” But myinstincts as an advocate tell me that such enthusiasm must be qualified by due diligence and a lengthy reservation. We havearrived, we have gained a foothold, but I am not certain that we will not side back to another dark age of interstatelawlessness resulting in chaos. Our daily media fare, as everyone could see, now mainly consists of globalization, ofconflict, violence, and war on terror. Human rights, the mantra of the past half-century, must now be yoked to the cry forhuman security.Indeed in the 20th century, according to Prof. Weston and his colleagues, (Weston et al., International Law and WorldOrder, 1992, 2nd ed., p.1137)‘……in reaction to two world wars and the advent of nuclear weapons, legal constraints on the use of force have beenformally agreed upon by States and interpretative and implementing organs have been established in the form of internationalorganizations— first the League of Nations, more recently the United Nations. As well as Nuremberg principlesestablished a legal foundation for imposing criminal sanctions on those who act on behalf of the State in a manner thatviolates international legal obligations in the area of war and peace.”But as Weston et al. observed, the results of these legal efforts have been generally disillusioning. They concluded that “Theself-help ethos has persisted, especially for the major international players. The United Nations remains marginal to majorpolitical crosscurrents in most instances, even where the super powers have not been directly involved. The Iran-Iraq Warwas waged over a period of almost eight years in the 1980s, about twice as long as World War II, while the UN was gridlocked the whole time by contrary political currents and became, in fact, an awkward spectator.”While lately it has become fashionable to lay the blame on the Sovereign States System, which underlies our presentconcept of international law, I am not prepared to say that the shortcomings or the weaknesses of the states within theUnited Nations Organization in the task of maintenance of peace, eradication of war, and the promotion of human rights,justice and security have doomed that organization. For unilateralism, or dominance by one super-power, especially afterNine-Eleven, is not now a consummation devoutly to be wished. Allegations of torture and other abuses from Abu Ghraibprison to Guantanamo Bay detention cells grab our attention and fill us with foreboding. Neither Leviathan nor Hegemonfulfills mankind’s aspirations for a just order in the world. We have had enough of man’s inhumanity to man. And yet,concerned observers of humanitarian law harken to better days ahead, perhaps with a reformed Security Council, lessconstrained International Court of Justice, and more pro-active tribunals sponsored by United Nations. As Edward Newman--94--
of the UN University said, security “lies in the heart of our individual and communal existence. It is the public good fromwhich all other individual and societal values and goods can flourish. Whilst our basic human needs have changed little, henoted, “our conceptualization of security, and our approaches to achieving and maintaining security, have undergone arapid evolution.”The present UN Secretary General, Kofi Annan, in his 1999 report rightly remarked that we entered the 21st century, andthe new millennium, with an “international code of human rights” which is one of the “great accomplishments” of the 20thcentury. Everything that the United Nations would undertake, said Prof. David Forsythe, “is to be ultimately measuredagainst the protection of personal rights defined under international.” Prof. Forsythe suggested that considering “the extensiverange of universal human rights already recognized by the international community, it is crucial that more be done tosecure their implementations—to move the law on the books into the realm of living law.”Sanguine as we are in this regard, however, we must face the task of international law implementation even more realisticallyand forcefully than before. Classic natural law foundations have been greatly shaken by positivism in our jurisprudence.Law enforcement, even at the domestic level, as noted by legal historian, Lawrence M. Friedman, is not a job thatmostly depends on the state, the law, and the government. The level of law enforcement, he states, “is profoundly variableand, like every other aspect of the legal system, a matter of norms, desires and politics.” And we stress especially realpolitikin the world scene.In affirming the observations of a legal specialist on civil war, Erik Castren, that “states have been inconsistent with regardto the relevant legal questions, while consistently keeping in mind their own interest,” Prof. Richard Falk commented :“Governments are guided not by fidelity to norms but their conception of what their interests are. Interests have been selfdefinedby governments in light of their capabilities, foreign policy priorities, and their perception of what others will do inresponse to provocative action and response.”It may be that times are a-changing, despite the skeptics in many places. Yet again, in the creation of the InternationalCriminal Court, through the Rome Statute, we find the forces of delay and obstruction at work. The current status of theICC’s support by way of the treaty’s ratification, however, is no longer at issue. We are informed that as of September,2004, more than half of the world has joined the ICC. The ratifiers now total 97 states, and growing. As William Pace,convenor of the Coalition for the ICC, enthused : “For a multilateral treaty to gain such acceptance in only six years is aremarkable achievement. In a world increasingly alarmed by the destructive path of unilateralism, these ratifications addgrowing momentum to international support for the ICC. We hope that more countries . . . will join the majority of the worldthat has come to realize the need for a real system of global justice in the 21st century.”Since “the ICC has no police or prison to speak of,” the focus of concern for its effectiveness will be upon the cooperationof State Parties to the Rome Statute. Even monist countries (more so the dualist,) must adopt implementing legislation.They must pass laws concerning the ICC’s sitting in the territory of a State Party; the criminalization of offenses against theICC’s administration of justice; the taking of evidence; the execution of searches and seizures; the arrest and surrender ofpersons; certain immunities for ICC officials; and provisions for penalties and enforcement.Apropos, our view of enforceability of international law, in the domestic courts, has been greatly simplified by the adoptionof the incorporation principle by the Philippines. Reiterating what as early as 1935 was already provided for, the presentConstitution states that : “The Philippines renounces war as an instrument of national policy, and adopts the generallyaccepted principles of international law as part of the law of the land...”Succeeding amendments to and revisions of that Constitution have not diminished our adherence to the generally acceptedprinciples of international law. The present understanding of the above cited clause maintains that provisions of conventionsand treaties of which the Philippines is a party are of equal authoritativeness as the Acts of our legislature. Internationalconventions and treaties occupy in our constitutional regime equal prominence as domestic statues. In the early casesdecided just after World War II, customary international law was given pride of place and directly applied as binding by ourSupreme Court. Thus, in Yamashita v.s Styer, G.R.L-129, December 19, 1945, it was held by the Supreme Court of thePhilippines that war crimes were within the jurisdiction of regular civilian courts, concurrently with the jurisdiction of military--95--
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