ITLOS and the Scarborough Shoal

Now that Secretary Albert Del Rosario shares my view that the Scarborough Shoal dispute should be submitted to the International Tribunal on the Law of the Sea (ITLOS) for peaceful resolution, the question is: how could the tribunal exercise jurisdiction without China giving its consent to do so?

The answer lies in the dispute settlement procedure of the United Nations Convention on the Law of the Seas (UNCLOS). These provisions are not only very long, but are recognized by scholars as amongst the most complicated provisions of the convention.

In a nutshell, the provisions on dispute settlement were made part of the “package deal” that state parties agreed to be bound when they became parties to the UNCLOS. In an effort to make all of the provisions of the UNCLOS a restatement of customary international law, each and every provision of the convention were agreed upon by states on the basis of consensus, and not just by a vote of the majority. Consequently, not only did the UNCLOS become the longest treaty to negotiate, it also became unique because of the rule that parties thereto may not make reservations on any of its provisions, including those dealing with dispute resolution.

The ITLOS jurisdiction was made compulsory and mandatory on all state parties in all disputes arising from the “”interpretation or application of any provision in the Convention”. Because state parties to the Convention, including the Philippines and China, have already referred to the ITLOS these types of disputes, China need not give its consent anew if we were to bring the issue of the exercise of sovereign rights in Scarborough shoal, Recto Bank and even parts of the Spratly’s to the tribunal.

Notice though that while Scarborough dispute, because it is one over fishing rights in maritime territory may- be brought to the ITLOS even without the consent of China, the Spratly’s controversy, on the other hand, would still require China’s consent. The reason is simple: because the Scarborough issue is purely a dispute involving water, it may be resolved wholly under the UNCLOS and as such, is an issue arising from an “interpretation” of the Convention’s provisions on sovereign rights. By definition, sovereign rights refer to the exclusive right of a state to explore and exploit all natural resources found in the waters of its Exclusive Economic Zone (EEZ), which is 200 nautical miles from the baseline of a country.

The issue in Scarborough is whether fishing by Chinese nationals there violates the sovereign right of the Philippines to exclusively engage in fishing in the area. A resolution of this issue would require the ITLOS to make a factual determination if the shoal is within the country’s EEZ and whether the shoal, as China claims, is an island. If it were indeed an island, yet an issue to be resolved would be whether it is entitled to other maritime zones or just a 12 nautical mile territorial sea. In either case, the primordial issue would be which nation should be allowed to fish in the area of the disputed shoal.

The Spratly’s dispute, on the other hand, is one that involves conflicting claims to both land and water territory. As such. UNCLOS cannot be the sole applicable law for the obvious reason that it deals only with maritime territories. The territorial dispute to the islands are subject to the rule they should pertain to the state that can prove a superior claim in terms of effectivities, or the exercise of the rights and obligations borne out of the exercise of sovereignty over disputed land territory. As such, disputes over islands are disputes beyond the “interpretation” of the UNCLOS rules on maritime territory. This is why China must consent anew to the exercise of jurisdiction by ITLOS in resolving the Spratly’s dispute. It is because conflicting claims to land territory do not involve issues of interpretation of the UNCLOS and are hence, are not subject to the mandatory and compulsory jurisdiction of the ITLOS.

Recent events have proven that we are no match to China in terms of military firepower. It was fool hardy for Filipino policy makers to think that BRP Gregorio Del Pilar, our one and only battleship, can drive Chinese fishermen away from the area. In any case, resort to the use of force to settle international disputes are prohibited by both the UN Charter and the UNCLOS. I am happy that Secretary Del Rosario has finally declared that instead of a military solution, we have opted for a peaceful and legal resolution of the dispute. In this manner, we may yet repeat the feat of a boy named David that slew a giant named Goliath.

(Published in the Manila Standard Today newspaper on /2012/April/19)

The magic of UP

I just returned from the United States where the University of the Philippines College of Law moot team had, in the words of Marnie Tonson of GMA News, a “magical” finish.

The team consists of Christopher Louis Ocampo, Michelle Go, Danilo Corpus, Neil Nucup, and Margarita Lim. It also has Cuayo Juico as its manager, and Atty. Maricel Seno as my assistant coach.

The UP team finished third in the world’s biggest and most prestigious moot court competition, the Jessup Cup.  This year’s competition drew as participants an unprecedented 137 teams from all over the world, from an original 600 schools that competed in the different national and regional rounds held worldwide. While the UP Law team yielded in the semi- final round to the Russian team from the Moscow State University, the same team that would later beat Columbia University to emerge as this year’s champion,  the UP feat was nonetheless sweet if only because the stories of those who constituted the team  tell the world what a UP education is all about.

Each member of the team represents a section of UP’s student body. It is this kind of a student body, not just financial resources, that will ensure the preeminence of the National University in the years to come.

Two members of the team, Chris and Neil, are children of overseas Filipino workers: a mariner and a Rome-based housekeeper, respectively. They are portraits of the many other young Filipinos who have become a sociological reality in a country with a diaspora of at least 14 million. Their story has become all too familiar: they grew up with one parent and have had to content themselves with the occasional phone calls from the other parent laboring  abroad to finance their education in this country.

A third member, of the team, “DS”, is a portrait of a young Filipino who had the option to reside in the United States —his parents had provided him with the coveted “green card.” Nonetheless, he opted to stay because he “could not see a future outside of the Philippines.

Michelle Go, the cerebral heavy weight in the group and perhaps, in the entire competition, risked the title of being the class valedictorian because of the many hours she devoted preparing for the Jessup Cup. While we all hope that she will still graduate on top of her class, “Mitch” claims that the Jessup experience of having to argue issues relevant to the world today—the use of force to prevent humanitarian disasters and remedies to victims of war crimes —has enriched her education far beyond any  title to being class valedictorian.

Margie, on the other hand, is a child of a Filipino professional who once worked as an expatriate in the Middle East. She is a portrait of one who finished her first degree at the Ateneo but opted to do her law in UP to be  “great lawyer”, to quote from the words of the great American jurist Oliver Wendell Holmes etched in stone in Malcolm Hall.

This is of course not the best showing for the UP Law team at the Jessup cup. In 1995, the UP Law team with Undersecretary Chito Gascon was the first Filipino team to emerge as world champion at the Jessup. This feat was followed by an Ateneo team that emerged as champion in 2004, the same year when UP Law’s Diane Desierto, Neil Silva, and Ruben Acebedo emerged as co-champions with Cambridge University in the equally prestigious Jean Pictet International Humanitarian Law Competition held in France.

In 2005, the UP Law team made history in the Red Cross  IHL Moot Competition in Hong Kong when both its Applicant team with Dr. Celia Torres-Villanueva and now Assistant Secretary William Varias; and its Respondent team with Mark Rabe and Marlon Marquez -landed first and second, respectively, with an all-UP team slugging it out in the final round. In 2006, my first time ever to coach the Philippine team at Jessup, Abraham Acosta, Mark Perrete, Charles Allaine Veloso, and Mark Rabe landed as quarterfinalists . Previously, in 1989, the UP Law Team with former PCGG Commissioner Ruben Carranza , soon to be Ambassador King Sorreta, with legal eagles Leni Villareal and Evalyn Ursua, also emerged as semi-finalist in the Jessup.

But this is not just about a record of winning moot competitions. It’s about being poor or middle class -getting a top-notch education at UP paid for by Filipino taxpayers, and emerging world-class. This is the UP story.

This is why a UP victory is always sweeter. This is why the students who competed in Washington DC this year sang “UP Naming Mahal” before every match: because UP is beloved not only because it is a revered institution; more importantly, it is, for all its graduates, the stuff that dreams are made of, and the story of magical beginnings and finishes.