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

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.

“Critical theory must now carefully attend to the dimension of praxis.”¹

The dissolution of the Union of Soviet Socialist Republics (USSR) had the paradoxical effect of deepening the legitimacy of the pursuit and exploration of Marxist thought in legal academia. Ironically, the flight of Marxist international law seems to have begun at the dusk of Soviet-style socialism; the demise of the world's first socialist state gave birth to new works on Marxist approaches to international law, sparking something of a renaissance and showing the exciting possibilities of a critical international law.²

Nonetheless, while contemporary writings are interesting and thought-provoking, they appear to have been written distantly from classical Marxism's field of praxis.³ Recent works reveal a less intimate connection to the everyday life of social movements and the working class, which Georg Lukacs considered the unified subject and object of history.⁴

Certainly, an independent scholarly position may produce an original and stimulating critique. One need not follow the unproblematized unified subject of classical Marxism, which Laclau and Mouffe have previously critiqued. But the question of practice is altogether critical. Without roots in practice, Marxist theory becomes a mere academic abstraction. Practice is not only the criterion of truth; it goes into the problem of theory's achievement of an “immediate actuality”.⁵

This problem of praxis is what the present article seeks to address if only to highlight “the most critical question in these times of global political turbulence: What is to be done?”.⁶ This article seeks to contribute to the growing scholarship on Marxist international legal theory through a study of the legal thought and critical practice of a Filipino international lawyer and scholar from the periphery, Merlin M. Magallona (1934–2022), who was actively involved in the Philippine communist movement from the 1960s to the 1990s, a proponent and popularizer of the New International Economic Order (NIEO), Dean of the University of the Philippines College of Law, and a founding member of the Asian Society of International Law.

The essay maps out Magallona's Marxism by analyzing the silences surrounding his work and reconstructing the context of his critique and practice, particularly his sustained involvement in mass movements, government, and cause-oriented litigation. It argues that Magallona's international legal thought and practice took the form of a critique of capitalism developed as a polemic against Filipino Maoists’ adoption of “semifeudalism, semicolonialism” during the mode of production debate in the Philippine Communist movement of the 1960s and 1970s. Magallona formulated a critique of the “neocolonial division of labour”, a development in the capitalist mode of production that transforms former colonies into appendages of Western transnational corporations’ supply chains. In line with his Marxist and anti-imperialist critique, he produced in his Third World texts a materialist explanation of the development of international legal principles through what may be described as “Postcolonial Self-Determination”, a synthesis of the antinomy of positivism and self-determination that transforms positivism into an expression of self-determination. Magallona's Third World Marxism would make him embrace and promote the NIEO and use imperialist treaties to resist new imperial claims. The article concludes that Magallona's anti-imperialist critique and praxis may find relevance in the practice of Marxist international legal theory in the face of new imperialisms.

This article's reading of Magallona will be pursued through a particular mode of Marxist practice called “symptomatic reading”. A lecture symptomale navigates between the said and the unsaid in the texts and establishes “connections between the field of the visible and the field of the invisible”.⁷ This mode of reading is appropriate for making the silence that surrounds Magallona's texts speak. Magallona lived a life in which “silence” was important for his political and personal survival. His writings were published under historical circumstances that make the unsaid more important than what was directly said. Hence, anyone who wants to make sense of his works must consider the silence and the voice one hears, establishing the connections between silence and words and between the visible and the invisible.

The article does not intend to cover all of Magallona's published works.⁸ It has a modest objective: a preliminary understanding of the Marxist roots of his international legal ideas, relating them to the historical contingencies of Marxist movements in the Philippines and their anti-imperial imagination. By studying Magallona's praxis, we seek to present a different kind of Marxism emanating from the Global South, which reconnects Marxist theory to the practice of social movements and international legal theory. Ultimately, it does not aim to present the truest form of Marxism but describes the specificity of Marxist theory and practice in postcolonial Philippines.

This article is divided into seven sections. Following the introduction, we discuss and apply the Marxist reading of textual silences to Magallona's biography. This is followed by a reconstruction of Magallona's critique of international political economy during the mode of production debates in the Philippines in the 1960s. The third section analyses the silences in Magallona's essays on jus cogens and human rights as Third World texts embodying the antinomy between positivism and self-determination. The fourth and fifth sections continue to read the silences that surrounded Magallona's practice of Third World Marxism, first, in his botched proposals for the NIEO at the United Nations through diplomatic means and, subsequently, through party politics in his role as General Secretary of the Communist Party of the Philippines (PKP) and, second, his utilization of imperialist treaties against empires in his critique of the UN Convention on the Law of the Sea (UNCLOS) regime. Finally, the last section reflects on Magallona's critique and practice and their importance in reviving interest in the dimension of practice in Marxist international legal discourse.

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 lethal⁹ 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:

Dean Merlin was instrumental in promoting international law through the many institutions he joined. He was a founding member of the Asian Society of International Law and was a member of its Executive Council (2007-2009). He was instrumental in setting up the Philippine Society of International Law and [re-establishing] the Philippine Yearbook of International Law[,] which he also led as Editor-In-Chief. Prior to this, he was Editor of the IBP [Integrated Bar of the Philippines] Journal for a considerable number of years. He was a member of the Expert Group on the Legal Aspects of the New International Economic Order established by the UN Institute on Training and Research in [1982] and was also listed as an Expert in Human Rights [by] the UN Human Rights Commission. He served as a member of the arbitral tribunal of the International Chamber of Commerce in Paris, France. Until his voluntary retirement from service at the Philippine Judicial Academy (PHILJA), he was Chair of its Department of International Law and Human Rights…¹⁰

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”.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:

Born on Aug. 6, 1934, Magallona earned his bachelor of laws from the UP College of Law and served as one of the college's faculty, teaching international law. He then became its associate dean from 1991 to 1995 and later its dean from 1995 to 1999. He also served as director of the UP Law Center Institute of International Legal Studies from 2000 to 2001…

He was undersecretary of foreign affairs from 2001 until his resignation in July 2002. He was a member of the Supreme Court Committee on Legal Education from 1999 to 2003.

Magallona was counsel for the Philippines in the oral arguments before the International Court of Justice. He handled the case of “Legality of the Threat or Use of Nuclear Weapons” (Advisory Opinion, 1995) and the case “Concerning Sovereignty over Palau Ligitan and Palau Sipadan (Indonesia v. Malaysia)”, in which the Philippines intervened in 2001.

Magallona was a member of the expert group on the legal aspects of the New International Economic Order established by the UN Institute on Training and Research in [1982]…

In 2002, he represented the Philippines in the working group of the UN Diplomatic Conference on the Establishment of an International Criminal Court in Rome. He headed the Philippine delegation to the meeting of the International Criminal Court Preparatory Committee in 2002.¹²

Marxist literary criticism holds that texts often bear “the imprint of a determinate absence”.¹³ Thus, “what is important in the work is what it does not say”.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”.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”.¹⁶ Following this symptomatic reading, we searched for that absent text and found the following:

It is with sadness that the Partido Komunista ng Pilipinas (PKP-1930, the Philippine Communist Party) belatedly learned of the passing away on January 1^st, 2022, at the age of over 87 years, of Comrade Merlin M. Magallona (also known within the Party as “Ka. Vidal” [Ka or Kasama/Comrade Vidal]), who was the General Secretary of the PKP-1930 from 1987 to mid-1993. Previous to that position, he was a leading member of the Politburo of the Central Committee and a member of the Party Secretariat, heading the Ideological Affairs Department…

The PKP-1930 highly values his lengthy services as a cadre and leader of the Party from the 1960s to mid-1993, and his advisory positions in several mass organizations during the same period. He was responsible for a number of the Party's polemics against Maoism and Trotskyism in the late 1960s and early 1970s.

Held as a political detainee under martial law, he served as one of the main negotiators of the Party with the Marcos martial law regime, with the negotiations leading to the Political Settlement of November 1974. Under that landmark agreement, the Party regained legal status and was able to rebuild legal mass organizations; political prisoners and detainees belonging to the Party and its pre-martial-law mass organizations were granted amnesty and freed; and surviving members of the Party-led HUKBALAHAP [Hukbo ng Bayan Laban sa Hapon/People's Army Against Japan] guerrilla army were given recognition and benefits as Filipino World War 2 veterans.

In exchange, the Party renounced the armed struggle, dissolved the Hukbong Mapagpalaya ng Bayan (HMB, the People's Liberation Army) [the former HUKBALAHAP in World War II], and surrendered its remaining weapons. All these steps were in line with the Party's much earlier realization of the need to regain legal status for the Party to bring its communist advocacies to the masses of our people and of the futility of the armed struggle in gaining political power, given the absence of prospects for a revolutionary situation.

The PKP-1930 thanks Cde. [Comrade] Merlin M. Magallona's past contributions for the cause of the Party and the international communist movement, and extends heartfelt condolences to his bereaved family and friends.

Secretariat of the Central Committee¹⁷

January 05, 2022

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.¹⁸ The “how” of critique is an “inquiry into the condition of critique”.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 1968.²⁰ 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 Rebellion²¹ 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”.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”.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.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”.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”.²⁶

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

Such revisionist bureaucrats as Francisco Lava, Jr… Francisco Nemenzo… Merlin M. Magallona and others sit on their asses dictating their Rightist line, but they have such lumpen proletarian putschists elements as those of the Briones-Diwa Pasion gang to perpetrate fascist crimes for them.²⁷

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.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.²⁹ Established in 1930, the PKP saw its fortunes rise with the post-war order.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.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”.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,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 production³⁴ logically demands a corresponding military strategy.

The concept of “semifeudalism, semicolonialism” has long been a matter of faith and creed in Philippine Maoist circles.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.³⁶ This semicivilized status corresponded to a semicolonial position, differentiating it from the savage colonies.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”.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.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.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.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:

The ASEAN countries are now in the throes of a transition from the colonial division of labor based on raw materials-finished products exchange to a neocolonial division of labor, which is transforming them into industrial appendages of transnational corporations based in the leading capitalist countries, for the manufacture of labor-intensive products, parts and components and for resource-intensive processing. Their economic growth still weighed down by dependence on primary export commodities, from which they are emerging, the ASEAN economies are entering a new stage in which they forge their technological links of integration to the internationalized assembly-line manufacturing of transnational corporations. This new level of economic integration is forming a new international division of labor in which the ASEAN countries assume a specialized role in the production cycle of transnational corporations through a fuller exploitation of their cheap labor power in labor-intensive industrialization and in the processing of their own raw materials for worldwide-based production facilities of transnational corporations.⁴²

This theory of a neocolonial division of labour led Magallona to consider this new development a reversal of the UN Declaration of a NIEO.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”.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.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”,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.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.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 1974.⁴⁹ 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.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.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.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 2020.⁵³ 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.⁵⁴ The essay does not explicitly reveal a Marxist polemicist. This is noted by the editor, who writes:

Since the issue of ius cogens caused considerable controversy at the Vienna Diplomatic Conference and as the status and substantive content of the concept itself remains the subject of debate, Merlin Magallona's essay…considers these issues. He reviews not only the emergence of the concept of a doctrine of international ordre public but also deals critically with some of the practical issues raised by the inclusion of ius cogens within the framework of positive law.⁵⁵

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.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.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”.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”.⁵⁹ One may add to this positivist tendency Magallona's approving citation of Soviet jurist G.I. Tunkin's notion of “interconditionality of wills”.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.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.⁶² It made the “treaty” the most basic and reliable source of international law.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”.⁶⁴

Yet, Magallona does not advocate decadent formalism and positivism.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.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.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.⁶⁸ Positivism also curtailed the rights of colonials through agreements made by Western powers, embodied in treaties such as the Act of Berlin,⁶⁹ the US-Spanish Treaty of Paris of 1898,⁷⁰ the Anglo-Dutch Treaty of 1824,⁷¹ 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”.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”.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.⁷⁴ Jus cogens bade farewell to the “obsolete rules” that served the “exploitative interests” of the “major capitalist powers”.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”.⁷⁶ The clash of philosophies of rights merely reflects the historical struggle of social forces; here, history inevitably “screens out”⁷⁷ those that “impede the expanding socialization of freedom” in favour of those that advance the “felt necessities of the times”.⁷⁸ In this particular essay, written in 1989, Magallona never provides express clues of the provenance of his theory on human rights.⁷⁹ But the question of provenance is unmistakably answered by the central thesis of his paper:

Quite apart from the influence of ideas on the motivation of men, it needs to be emphasized that the watershed in the development of human rights has been formed by political revolutions and social upheavals—those historical moments of qualitative transformation defined by sharp conflict of class interests. If the protagonists appear to be fighting for ideas, it is because those ideas coincided with those interests. They struggled for those interests as reflected in ideas and fought for ideas in defense of interests.⁸⁰

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”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”.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”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’”.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.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”.⁸⁶ Magallona argues that the 1987 Constitution's new understanding of free expression converged and “posited”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:

The deep human need for individuality and pursuit of happiness through sharing of ideas, sentiment and experience with one another [and] the need for self-expression as a form of spiritual and emotional gratification through one's work, leisure and the other dimension[s] of life are thereby given a more specific habitation in the fundamental law. From the viewpoint of the community as a whole, free expression of one's perception of beauty, truth and spirituality becomes a medium by which the enrichment of culture and its continued development and renewal is accomplished, thus expanding the possibilities of social life. Thereby, the free development of the individual becomes a condition for the free development of the community.⁸⁸

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.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.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.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 103⁹² in relation to Articles 55 and 56 and the Universal Declaration of Human Rights⁹³ cannot be done outside human rights lenses,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,⁹⁵ insofar as human rights obligations under the same Charter form part of the context of the Treaty and prevail over its waiver clause.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.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.⁹⁸ The ratio decidendi of the case treated Filipinos as “subjects of the rules of international law”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.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)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.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).¹⁰³ Magallona was certainly no exponent of cosmopolitan human rights.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.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”.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,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.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”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.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.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.¹¹²

In his working paper, Magallona argued for a “restructuring of international law”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”.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”.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,¹¹⁶ constituted by its three founding documents;¹¹⁷ namely, the NIEO Declaration and Programme of Action,¹¹⁸ the Charter of Economic Rights and Duties,¹¹⁹ and the Resolution on Development and International Economic Cooperation.¹²⁰ The three documents spring from the UN Charter's objective of “social progress and better standards of life in larger freedom”¹²¹ through “international cooperation in solving problems of an economic, social, cultural, or humanitarian character”.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”.¹²³

Moreover, through Article 56, member states pledged “to take joint and separate action in cooperation with the Organization”.¹²⁴ The duty to cooperate toward solving economic problems in the international order is now a general principle of law.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.¹²⁶ While the UN General Assembly played a leading role in the progressive development of norms and principles of international economic law,¹²⁷ the various organs and agencies of the UN system and international conferences helped crystallize these norms and principles,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.¹²⁹

Magallona had anticipated a later critique of the NIEO's statist vision.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.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.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:

the participation of all members of society in the establishment of forms of ownership of land and of the means of production which preclude any kind of exploitation of man, ensure equal rights to property for all and create conditions leading to genuine equality among peoples.¹³³

Third, the national interest had to be understood as “the welfare of the broadest ranks of the people, not of an economically privileged few”.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.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.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”¹³⁷ in Cabiao, in the Nueva Ecija province in Northern Philippines, where Magallona was elected General Secretary.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.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.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 vision¹⁴¹ 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?”.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).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 $20,000,000.¹⁴⁴ 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 masters¹⁴⁵ 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”.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.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.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,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,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.¹⁵¹ That is, until Magallona v Executive Secretary,¹⁵² the case that ironically bears his name, came along. In 2009, the Philippines passed the Republic Act (RA) 9522,¹⁵³ which further amended the country's first baseline law, RA 3046 of 1961,¹⁵⁴ 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”¹⁵⁵ territorial and maritime entitlements pertinent to “the only mid-ocean archipelago existing in the world”.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…¹⁵⁷ [emphasis added]

The second note verbale stated that “the breadth of the territorial sea may extend beyond twelve miles” based on historical grounds.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 students¹⁵⁹ – to challenge RA 9522 of 2009,¹⁶⁰ 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”.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 Philippines¹⁶² in 1935,¹⁶³ 1973,¹⁶⁴ and the present 1987 Constitution¹⁶⁵ under the principle of uti possedetis juris.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”.¹⁶⁷ The KIG was constituted by Presidential Decree 1596 of 1978,¹⁶⁸ 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.¹⁶⁹ Third, RA 9522 converted Philippine internal waters into “archipelagic waters”, as defined under UNCLOS III.¹⁷⁰ In particular, the shift to UNCLOS III in the assailed law burdened Philippine internal waters “around, between, and connecting the islands”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.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,¹⁷³ thus violating the Philippine government's constitutional duty to protect exclusive marine wealth and the offshore fishing grounds for Filipino subsistence fishermen.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.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 III¹⁷⁶ precisely for that reason.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”.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.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).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”.¹⁸¹ Magallona's warning about the consequences of enclaving the KIG into a regime of islands under UNCLOS III proved prescient.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.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”.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.¹⁸⁵ The AA has become the subject in some official quarters in the Philippines of “veneration without understanding”,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.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 III¹⁸⁸ 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,¹⁸⁹ his critique of UNCLOS III does not discriminate between Marxist and capitalist warships – nuclear-powered and armed, or otherwise¹⁹⁰ –entering what the Treaty of Paris-International Treaty Limits considered as Philippine internal waters and violating the Filipinos’ right to self-determination.

VI. Conclusion

The recent turn to theory in international law is an opportunity to become (re)acquainted with the works of Merlin M. Magallona, an Asian international legal thinker from the periphery whose works embody a Third-World Marxism that was marked by the silence of the unsaid due to the specific context of his critique and praxis. To make the silence speak, we chose a mode of reading that came from the Marxist tradition he wholeheartedly embraced. Magallona's works, it is argued, cannot be understood without knowing what others have ambiguously referred to as the “struggles” that he waged in his youth. A symptomatic reading of the silences in his works has allowed us to highlight the Marxist logic of his writings, one that is, in many ways, disguised and often unidentified.

Our reading, of course, is but a preliminary attempt; the archives have yet to speak exhaustively.¹⁹¹ We have only started to fill in the gaps. Certainly, there remains a silence that gives life to his works.

In this article, we have reconstructed the mode of production debate in the Philippines during the 1960s and 1970s, the very context in which Magallona's theorizing of a neocolonial division of labour arose and developed. We have shown that this materialist lens was utilized in his analysis of international legal categories, which he connected to the transformations of social relations between classes and between states. His understanding of jus cogens, human rights, the NIEO, and UNCLOS revealed a theoretical attempt to retrace the development of international legal doctrines to the events that transformed post-war international relations, such as decolonization, anti-imperialist struggles, the formation of the Socialist bloc, and the struggle to remake the international economic order. As such, Magallona's texts cannot be understood outside its Third World context, especially his synthesis of the antinomy between positivism and self-determination. If Third World texts can be argued as necessarily “national allegories”,¹⁹² we also find in Magallona's writings a specifically Third Worldist synthesis of this antinomy, where positivism becomes an expression of national self-determination.

Magallona's “Postcolonial Self-Determination”, a Third World synthesis of the antinomy present in the first place in Soviet international law, was not a mere afterthought but a result of the unity of thought and praxis. Indeed, it was articulated in his solidarity with the mass organizations of the PKP, in his campaign for the NIEO, and in his use of the imperial Treaty of Paris of 1898 to challenge in court what he believed to be a legislative act to dismember Philippine territory and open it to new militarisms and imperialisms.

Yet, we have not shied away from identifying some problems in Magallona's work, especially in the PKP's settlement with the Marcos dictatorship. Moreover, Magallona could not (fore)see the pauperization of the Philippine economy under the Marcos dictatorship, including its state exportation of human labour to the world market. The exportation of labour would redefine the Philippines’ position in the “new international division of labour” from then until now. There was indeed a new position for the Philippines in the international division of labour, but it was not the position that Magallona had predicted.

A blind spot in a thinker's work, of course, does not necessarily negate his work. The gaps in the economics of value of Adam Smith and David Ricardo were characterized by Marx as a blindness arising from the discovery of something new. Althusser and his students found the same blindness in the silences of Marx's Capital. Magallona's Third Worldist synthesis of the antinomy between positivism and self-determination remains relevant as we confront blatant attempts by rising and declining powers to reconfigure the world. Recent efforts to recover or revive the promise of the NIEO for twenty-first century problems only affirm the continuing validity of his critique of an imperialist international order. In this context, his practice of anti-imperialist positive international law should provide lessons for resistance in the coming years. Indeed, new contradictions between imperial powers may yet cause the formation of new social movements and new forms of international solidarities, which would demand a reconnection between theory and practice. Rather than remaining an urban legend, Merlin M. Magallona's anti-imperialist 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.