WITHOUT MIRIAM, ICJ HAS NO WOMAN JUDGE

By a hairsbreadth, feisty Sen. Miriam Defensor Santiago, missed election as judge of the International Court of Justice, after winning in the popular General Assembly, but losing in the elite Security Council. 

  Her narrow and colorful defeat makes the 15-member ICJ and all-male enclave, despite repeated UN advocacy of gender balance. 

“It was a hard campaign, but ultimately it was a power game. The developed states tend to vote for countries where they have interests to protect, such as foreign investments, use of natural resources, and a big export market. As a developing state, we have no such cards to play,” Santiago said, after arriving Friday midnight from the UN New York. 

  The Philippine delegation led by Foreign Affairs Sec. Alberto Romulo and UN Amb. Hilario Davide put up such a brave battle that after the first round of voting, after four judges had already been elected, Santiago ’s votes compelled the voting to reach four rounds. 

  “Big countries like China and France refused to support the Philippines while small countries like Indonesia and Vietnam remained staunch Philippine allies up to the end. Probably none of the Big Powers voted for the Philippines ,” Santiago said. 

  The Big Powers, who are the five permanent members of the Security Council, are US, UK , France , Moscow , and China . 

  “Reportedly, the US considers the Philippines negligible in world affairs. UK and France prefer to support former colonies, where they have big investments. China has big investments to protect in Jordan . Moscow is sore at the Philippines , because we did not vote for it in the last Security Council elections. All this is realpolitik,” Santiago said. 

  Santiago , a former UP international law professor, said realpolitik is politics based on the national interest and on power, in other words, practical politics. 

  “The United Nations keeps advocating gender balance but now in the ICJ there are 15 judges without a single woman judge. This shows that the UN does not advance international interest, as much as the national interests of powerful countries,” Santiago said. 

  Santiago , who is chair of the Senate Foreign Relations Committee, said that her recent practical lesson in realpolitik has colored her perception of treaties between the Philippines and certain developed states. 

  “Powerful states promote international law only when it works in their favor. For example, they advocate gender balance on paper, but reject it when it hinders their own national interests,” she said. 

  Santiago noted that while in the General Assembly some 143 states promised in writing to vote for the Philippines , she got only 107 votes, still the required majority, but showing that some states cannot be trusted to keep their promises. 

  “In the same manner, the Philippine mission received nine written promises to vote for the Philippines in the Security Council, but only five voted for me. Fortunately, I was already warned that UN diplomacy can be accompanied by betrayal, because of the practice of secret balloting,” she said. 

  Santiago said that if the Philippines plans to nominate another candidate for the ICJ three years from now, the government should already start the process of mutual exchange of favors at this time. 

  “One strategy is that each time a country approaches the Philippines for a favor, immediately our government should ask for a commitment to the ICJ or any other international organization. Another strategy is to strengthen solidarity among the 10 Asean member states so that we shall form a united power bloc. But the best way is to work at increasing Philippine power in international terms,” she said.

JPEPA FLAWED, BUT OK WITH CHARTER

Sen. Miriam Defensor Santiago, chair of the foreign relations committee and principal sponsor of the Jpepa said that it is “flawed,” but can pass the test of constitutionality.

Santiago made the statement after the Senate concurred in the ratification of the Jpepa at nearly midnight last Wednesday, the last day before Congress takes a one-month break.

During interpellation, Santiago said she had insisted to the executive branch that a supplemental agreement should contain three exemptions from Jpepa, but only one was secured.

The supplemental agreement was made by an exchange of notes between foreign affairs Sec. Alberto Romulo and Japanese foreign minister Masahiko Koumura.

“After months of locking horns, our negotiators were able to get only one of the three exemptions that are necessary to make the Jpepa airtight in protecting Philippine interests. For now, the exemption obtained will enable Jpepa to pass Supreme Court scrutiny,” she said.

Santiago said she sought to limit Jpepa by three proposals, but only one was accepted by Japan.

“ Japan accepted the first proposal, but insisted on using language that should have been left out. We shall have to trust that it will observe these exemptions in good faith,” she said.

The first Santiago proposal was that the Jpepa shall observe all existing Philippine constitutional provisions, laws, and rules and regulations concerning investment activities

The second Santiago condition was that the Jpepa shall observe any future Philippine laws, including those passed by Congress, local governments, and administrative agencies.

“My second proposal was temporarily shelved, with a commitment by Japan that in the near future, it shall accept negotiations to amend Jpepa,” she said.

The third Santiago proposal was that Jpepa shall observe any act of Congress or any Supreme Court decision limiting the President’s delegated power to set tariffs applicable to RP-Japan trade.

“This third proposal was also shelved, with the Japanese commitment that it will be considered during future negotiations for amendment,” she said.

Sen. Francis Pangilinan said that by next year, he would file a resolution requesting the Office of the President to renegotiate Jpepa in order to amend it, by incorporating the three Santiago proposals.

“Unfortunately, we operate in the world as it is, not as it ought to be. Just the first proposal alone exhausted and endangered the health of trade Sec. Peter Favila, who was the lead negotiator,” she said.

But Santiago said she is confident that if questioned in the Supreme Court, the Jpepa will pass the test of constitutionality, because it has been modified by the August exchange of notes between the two governments.

“Under the Vienna Convention on the Law of Treaties, an exchange of notes, if so intended, is in itself a treaty binding on the parties. The Senate resolution of concurrence provides that concurrence is conditioned on the exchange of notes,” she said.

The first exchange of notes was on the Japanese commitment not to export hazardous wastes to the Philippines .

The second exchange of notes was on the observance by Jpepa of all Philippine constitutional provisions that require Philippine citizenship in certain investment activities.

Before the voting, Santiago was grilled on constitutional and legal issues by Sen. Aquilino Pimentel, Sen. Francis Pangilinan, and Sen. Jamby Madrigal.

Undecided senators like Sen. Loren Legarda said that after Santiago answered the interpellation on constitutional and legal issues, they decided to vote for the treaty, because it appears that it now has bright chances of being declared constitutional, if it is brought to the Supreme Court.

Santiago had earlier warned that if the Supreme Court declares Jpepa as unconstitutional, under international law, Japan would have the right to seek damages before an international tribunal.

During interpellation, Santiago paid tribute to the Jpepa opposition, particularly the Magkaisa Junk Jpepa Coalition, whom she said provided “helpful insights” on the treaty.

Santiago said she tried “to do better than my best” during the interpellation in order to obtain the required two-thirds majority vote, before she leaves for the United Nations in New York, where elections for the International Court of Justice to which she has been nominated, will be held on November 6.

While Santiago defended the treaty on the floor, her husband, Sec. Narciso Santiago, Jr., presidential adviser for revenue enhancement, was undergoing surgery for bleeding ulcers at St. Luke’s Medical Center in Quezon City .

To questions from her fellow senators, Santiago said that the surgery was successful, and her husband is expected to be discharged soon.