My Lolo and martial law


By Atty. Harry Roque Jr. | Sep. 25, 2014 at 12:01am
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I was too young to be an activist during martial law. I was fortunate though to have been raised in a family whose religious convictions include that of taking a stand for the poor and oppressed. This is why even if I did not venture to the streets to protest the Marcos dictatorship until I was a freshman high school student in UPIS, specifically in the infamous march along Liwasan Bonifacio to protest against the Education Act, I had my political education rather early in life.

Born in 1966, I, as a young child, could only remember being roused from my sleep with the commotion in our ancestral Pasay residence. My Lolo, Hipolito De Leon Lopez, announced that Martial law had been declared by Marcos. Lolo was a lawyer by training, but opted to work, together with “King” Doromal, for an American multinational company and became one of its pioneer Filipino executives. He himself was a founding councilor in Quezon City having been appointed to the post by then President Manuel Quezon. Owing though to an edict issued by of my Lola, who valued the family’s privacy, he was forced to retire early from politics. This is why among others, they moved from Quezon City to Pasay.

Lolo, despite having retired very from politics, was nonetheless still tremendously immersed in it. Lola, on the other hand, was a cousin of a rising star whom every one knew as “Mr. Clean,” Jovito Salonga. It was through this family relations that my political education began.

Lolo’s immediate concern upon declaration of martial law was an uncle, now a protestant Pastor, Uncle Rey, who was then a law student at the UP College of Law. Uncle Rey lived through the first quarter storm in UP and was a true blue activist when martial law was declared. Lolo knew that over and above our relations to Salonga, my uncle, whom he knew was active in the soon-to-be-declared illegal Kabataan Makabayan, was most at risk. Years later, the Protestant Church, through the Reverend Cirilo Rigos, would arrange for Uncle Rey to seek asylum in many monasteries in Europe where he evolved from a student activist to a seafarer’s advocate, which he remains today.

My political education was one of extreme contradiction. While my entire family was anti-Marcos, and not just because of Jovy Salonga, but primarily because Marcos trashed the 1935 Constitution and was engaged in widespread kleptocracy, my Lolo would nonetheless berate my Uncle for his student activism. Lolo himself had his share of cabal activities against the martial law regime, including late night sessions in his farmhouse in Parañaque, with journalists then residing in Fourth Estate subdivision, including its developer, a journalist who was a former diplomat whose first name I cannot now recall, Mr. Rodriguez. They would congregate for many nights reading the banned editions of the mosquito press and would take turns condemning, even cursing the excesses of the conjugal dictatorship. Meanwhile, my Ate and I would lead the siblings and cousins to our own march in the rice paddies chanting “Ninoy!” and other slogans against the dictatorship. But maybe owing to his corporate background, Lolo could not accept my uncle’s activism as if it were enough to condemn the dictatorships in secret meetings. Perhaps, it was fact that my uncle’s activism caused him to drop out of law school. To this date, I do not know if Lolo disliked my uncle’s activism because of the risk that it caused, or because it kept my uncle from becoming a lawyer. Maybe it was both.

There too were the many individuals wanted by the dictatorship, which we gave safe haven in our home in Pasay. While I no longer recall who exactly they were, one nun stands out because she used to play the piano very well. She had two favorites: Bayan ko and If a Picture Paints a Thousand Words. It was this nun, whom I never saw in a hobbit, who would lecture me on the basics: neo-colonialism, neo-feudalism and US imperialism. Looking back, it was she who explained in a manner that a child could understand why the US, because of its security interest in the region, opted to support the Marcos dictatorship. Ironically, this nun would later seek asylum in the heart of the beast: the United States.

Meanwhile, my political education continues, but with a difference. While I continue to espouse the view that only Filipinos can safeguard the Filipino interest, I have moved from sloganeering to legal advocacy. This means that while I continue to go and speak at rallies, particularly against the pork barrel and the DAP, I have gone further and actually used the law as a tool to change society. I guess I now know why my Lolo was so frustrated that my uncle gave up on his law training. Advocacy itself is important to build awareness amongst the people, but lawyers can do more for the cause when and if they use it as a tool to promote the people’s agenda.

Years from now, in the twilight of my life and when I am asked what I have done for society, I can cite jurisprudence and not just the advocacies I engaged in: David vs. Arroyo where the Court ruled that General Order No. 5 as unconstitutional since in the absence of a statutory definition for terrorism, only the President can define what it is which she can use to stifle dissent; Roque vs. de Venecia, where the Court ruled that ordinary citizens have a standing to sue to enforce a public right; Cacho vs. Arroyo, where the Court recognized that abuse of right was a valid cause of action when then FG Mike Arroyo filed 45 libel cases against journalists, Adonis vs. RP where the UN Human Rights Committee ruled that Philippine criminal libel is against freedom of expression, and the latest, Belgica vs. Aquino, where the Court ruled that the Disbursement Acceleration Program is unconstitutional.

Looking back, my political education must be the realization of my Lolo’s aspirations: the use of the legal profession as a tool to promote democracy and to spoil the day for despots.

I do miss my Lolo.

Dismal rule of law in the Philippines


It’s confirmed. The Philippines does not adhere to the rule of law.

In the annual Rule of Law Index for 2014, the Philippines received dismal grades for its adherence to the rule of law. In fact, the country was a dismal failure, receiving an average score of only .5 out of 1. That’s a failing grade of 50 percent.

In the region, we ranked 11th out of 15 states, behind even Mongolia, and in the company of Vietnam, China, Myanmar and Cambodia. We were eighth out of 24 in our income rank of lower middle-income countries. Worldwide, we were in the bottom half of the world ranking 60th out of 99 countries included in the survey.

The annual Rule of Law Index is a project of the World Justice Project. While the “rule of law “ is difficult to define, the project nonetheless evaluates countries’ adherence to the rule of law through outcomes that the rule of law brings to society. This includes “ accountability, respect for fundamental rights, and access to justice”.

The annual survey is based on four universal principles on the rule of law: one, government and its officials and agents are accountable under the rule of law; two, the laws are clear, publicized, stable and just, applied evenly, and protect fundamental rights including security of persons and property; three, the process by which the laws are enacted, administered and enforced is accessible, fair and just; and four, justice is delivered by competent, ethical, independent representatives who are of sufficient numbers, have adequate resources, and reflect the make-up of communities they serve.

The rule of law project then conducted a survey on 99 countries asking respondents to comment on eight factor areas of the rule of law, to wit: constraints on government power, or the extent to which those who govern are bound by the rule of law where the Philippines received a score of 59 percent. Absence of corruption where the Philippines received a score of 50 percent%, open government where the country got a lower score of 45percent, fundamental rights with a score of 52 percent, order and security with a score of 73 percent, regulatory enforcement with a score of 46 percent, civil justice with a score of 40 percent and the lowest, criminal justice with a depressing score of 36 percent.

While the methodology of the project was through a survey of at least 300 local experts in each country jurisdiction, the findings correspond with the reality on the ground. For instance, the country’s lowest score in criminal justice jibes with the fact that almost no person has been held accountable for extralegal killings in this country. The index bolsters the Asia Foundation-funded Parreño report that showed that the country has a dismal 1 percent conviction rate for extralegal killings. The score on civil justice also corresponds with the grim reality that civil cases take forever to be resolved in our courts. Likewise, the failing grades on corruption, open governance and fundamental rights appear to be reflective of realties, what with PDAF and the DAP scandals.

The surprise is the 73 percent, which we received in the area of order and security. With the recent spate of criminal activities, including kidnappings again prevalent, I am surprised that respondents still gave our country a nearly passing grade for this category.

In its report on the Philippines, the Rule of Law Index noted favorably “the existence of a vibrant civil society and a free media” which has been “reasonably effective checks on government power”. It noted though that “civil conflict and political violence remain problematic”. It also reported that “the country also has challenges with respect to protection of fundamental rights (ranking 67th over-all), particularly in regard to violations against the right to life and security of the person, police abuses, due process violations, and harsh correctional facilities”. It also highlighted that the “civil courts system ranks poorly (82/99 globally and 12/15 regionally) due to deficient enforcement mechanisms and the lengthy duration of cases”.

Beyond the index, the report confirms that we have a barely working rule of law in this country. This means that our public officers are not held accountable for their acts; our laws are unevenly applied, depending on whether one is rich or poor or politically connected or otherwise, think of NAIA Terminal 3 which is now being used without the builder being paid for the building; laws are not effectively enforced, and justice is not delivered by competent judges with sufficient numbers and competence.

In other words, we have a failed legal system where we are one notch away from reverting to the laws of the jungle.

This is yet another reason why a lawyer like Jojo Binay should be in Malacañang come 2016.

This post first appeared in http://manilastandardtoday.com/2014/09/11/dismal-rule-of-law-in-the-philippines/ on September 11, 2014.

The future of the Internet


I am in Istanbul, Turkey to attend the 9th Internet Governance Forum (IGF). This is an initiative of the United Nations General Assembly to bring together stakeholders to discuss the future of the Internet.

On top of the agenda is how governments should treat the net. The majority view still is what is referred to as the “multi-stakeholderism approach”, which believes that as the Internet is the technological realization of a free market place of ideas, it should be allowed to flourish with minimal governmental interference. On the other end of the spectrum is the view that the Internet should be subject to the full exercise of state sovereignty and jurisdiction exemplified perhaps by China’s decision to build the counterpart of its great wall on the Internet.

But beyond the debate on how much control government should exercise over the net, the conference also deals with a host of other controversial topics. I would think that given the archipelagic nature of the Philippines and the fact that we have one of the slowest and most expensive Internet service in the world — a topic that should have prompted our government to at least send an official delegate to the forum would be the issue of access to the Internet. But reflective of the lack of political will and/ or lack of appreciation that access to the internet is fast developing into a human right, the Philippines did not bother to send anyone, even a third secretary from our embassy in Ankara, to the forum. A fellow Filipino civil society delegate, Liza Garcia of Gender and ICT, cynically observed that if the international community put a price tag on the Internet, our government would most definitely have sent an official delegate to the forum.

In any case, it is strange that the Philippines, as the country that has most recently implemented a draconian law that infringes on freedom of expression on the net through the Cybercrimes Prevention Act, would choose to ignore the UN-sponsored forum on the future of the Internet.

Other interesting topics for discussion include: content creation, dissemination and use, the Internet as an engine for growth, enhancing digital security, human rights and other emerging issues.

I have thus far attended two interesting panels. The first is on the future of the data privacy in a post-Snowden world. The other is on human rights principles and the Internet.

Apparently, the concern today arising from the Snowden incident is the privacy of data, which governments have been accessing. This is why most governments insist on “in-country data storage”, referred in techie language as “localization”, which many Internet servers object to as being uneconomical and violate their clients’ rights to privacy. Unfortunately, a theme that arose from the panel discussion is that it is start-up companies that have the balls to stand up to government in resisting localization. The big guys, apparently driven by potential loss of revenues, have been more than happy to comply with both localization and requests for data. All that Big Brother has to do is to ask.

Closer to my interest are human rights principles, which have been codified into the Charter of Human Rights for the Internet. While this remains lex ferenda, meaning this is still aspirational; the panel observed that countries have been moving, albeit slowly, to enact enabling legislation to transform the Charter into lex lata, or what the law is. New Zealand and Brazil are two such countries. I do recall that Sen. Miriam Defensor Santiago has a pending bill, the Magna Carta for the Internet, which I hope will be enacted into law soon so that the Philippines can help in making the aspirational Charter into law. Some of the rights included in the Charter include the right to access and the right against government surveillance without due process of law. Thank goodness that while we lost in our challenge against cyber libel and cybersex in the Cyberprevention Act, we at least succeeded in nullifying real time data gathering without a court warrant and the take-down clause which would have enabled the Justice Secretary to act as investigator, prosecutor, judge and executioner in taking down Internet sites.

Today, my hosts, Freedom House and the American Bar Association, have arranged a series of bilateral meetings with donors and tech companies. In a few minutes there will be a bilateral meeting with the European Commission, followed by bilateral meetings with the State Department, the Director for Advocacy of Human Rights Watch, and meetings with companies such as Twitter and Facebook. At issue with the techie companies is the procedure by which they comply with government requests to take down materials. Early in our pre-conference planning, we agreed that we would attempt to persuade these companies to adapt an administrative procedure by which civil society and other interested parties may challenge any such request to take down content. Prima facie, these requests constitute prior restraint and infringe on freedom of expression.

It’s my first time to attend the IGF. I do concede that three days can make a world of a difference. I started on Day 1 when I was still pessimistic that a forum where nothing is adopted might be a waste of time. Today, and because I have been teaching international law for 15 years, I realize that a forum such as this facilitates the formation of customary norms. This is because civil society and other stakeholders are allowed to persuade governments to adopt uniform state practice on the basis that these practices have become law.

It’s not such a waste of time after all.

My profuse thanks to the American Bar Association for sponsoring me to this event, and to Freedom House for including me in their delegation. This means I win the prize for social media, right?

This post first appeared in http://manilastandardtoday.com/2014/09/04/the-future-of-the-internet/

Pasig court throws out libel suit by bank against Dagupan’s Sunday Punch


Dear media friends, please see below our media release on a libel case we have successfully defended. Kindly refer to the attached 5-page copy of the court’s order dismissing the case.

Media Release from CenterLaw
For reference : Professor H. Harry L. Roque, Jr. 09175398096 and Atty. Romel R. Bagares, 09328798422

The Pasig City Regional Trial Court has dismissed a two-count libel suit filed by a publicly-listed thrift bank Citystate Savings against the entire staff of the multi-awarded Dagupan City-based Sunday Punch newsweekly, having found no probable cause to try the case.

“There being no malice in the subject articles, a reasonably discreet and prudent person would find it difficult to charge the accused for libel,” said Branch 167 presiding judge Rolando G. Mislang in his five-page order dated August 27, 2014.

The suit arose from two articles published last year by the Sunday Punch in its print and online issues for August 25-31 and September 1-7 detailing the Pasig City-based bank’s alleged use of public funds to pay for the electricity consumption of one of its branches in the city.

The articles – vigorously disputed by the bank for allegedly being false – were based on comments made by an officer of the local electric cooperative and Dagupan City mayor Belen Fernandez herself. Both officials did not retract their statements even after the filing of the libel suit against the Sunday Punch, a pioneering community paper that has won many journalism awards over the years.

But as the judge could not find probable cause against eight Sunday Punch editorial staff members – namely, editor-in-chief and publisher Ermin Garcia Jr., associate editor Marifi Jara, contributing editor Jun Velasco, correspondents Jesus A. Garcia and Johanne R. Macob, online administrator Julie Ann Arrogante, production manager Jocelyn F. De La Cruz, and cartoonist Virgilio Biagtan – he granted their motion for judicial determination of probable cause and recalled arrest warrants issued against them.

Lawyers for the newsweekly – Attorneys Harry Roque, Romel Regalado Bagares and Zharmai Garcia of the Center for International Law – had argued for the application to the case of the public figure exception in Philippine jurisprudence on libel, which requires a complainant who is a public figure to prove “actual malice” in the allegedly libelous article.

The actual malice standard provides that any falsity in a news report is not liable for liable unless the public figure concerned proves that the report was made with knowledge that it was false or with reckless disregard of whether it was false or not.

Professor Harry L. Roque Jr., Chair of Centerlaw that defended the Sunday Punch, hailed the dismissal as a triumph for freedom of expression and stated that, “The dismissal recognizes that a discussion on how public property is managed is imbued with the public interest”.

Judge Mislang agreed with the Sunday Punch’s lawyers.

“The two articles in question merely referred to or quoted the statements of officials, thus establishing the fact that the accused did not write the articles and publish them with reckless disregard for truth,” wrote the judge in his order.

He brushed aside the argument made by the bank’s counsel — lawyer Ferdinand Topacio — that the actual malice standard should not apply to it as it is not a public figure, saying that Citystate after all “operates a business that is imbued with public interest.”

Citystate is a bank owned by investors led by Mr. Antonio Cabangon-Chua, who also owns interests in print, broadcast and television outfits, among them the Business Mirror newspaper, Aliw Broadcasting Network AM Radio Station DWIZ, Solar Television Network and Radio Philippines Network.

The judge said: “[c]learly, private complainant Citystate failed to prove not only that the charges made by accused in the subject articles were false but also that accused made them with knowledge of their falsity or with reckless disregard of whether they were false or not.”

Judge Mislang also took issue with Citystate’s wholesale filing of the libel suits against the entire staff of the Sunday Punch. Noting that it was the paper’s editor-in-chief who took responsibility for the articles in question, he said that the bank failed “to specify how each of [the other Accused] could have actively participated in the publication of the subject articles.”

The Office of the City Prosecutor earlier dismissed the bank’s libel complaints. However, it reinstated the case on the latter’s motion for reconsideration and filed two counts of libel against the Sunday Punch news staff with the regional trial court.

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Click here for a copy of the ORDER PP v E Garcia

Syrian rebels threat to Filipino UN peacekeepers a war crime


The Center for International Law (CenterLaw) said today Syrian rebels who have surrounded Filipino soldiers who are part of the UN contingent of peacekeepers in the Golan Heights and threaten to hold them hostage violate the latter’s protected status under international law .

“UN peacekeepers have been deployed not to take part in hostilities as combatants but to maintain international peace and security under the UN Charter,” said lawyer Romel Bagares, Executive Director of the non-profit dedicated to the promotion of international legal norms in Asia and the Philippines. “They therefore remain protected as civilian non-combatants and are not to be targeted nor taken as prisoners of war by any of the parties to the hostilities.”

Bagares appealed to the Syrian rebels to respect the Geneva Conventions granting protected status to UN peacekeepers, warning that they may be prosecuted for war crimes if they insist on ignoring the distinction between peacekeepers and combatants under the law on armed conflict and attack the UN peacekeepers.

He said three rebel commanders in Sudan are now being prosecuted before the International Criminal Court for leading an attack on African Union peacekeepers in Darfur.

“All persons who are neither members of the armed forces of a party to the are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.,” said Bagares.

Intentionally directing attacks against a peacekeeping mission is a crime under the Rome Statute, which created the world’s first permanent international criminal tribunal.

In this case, it is clear that the Filipino soldiers had been deployed under the color and authority of the UN and are readily distinguishable from combatants in the conflict for that reason, according to the lawyer.

He added that the Filipino peacekeepers have a recognized right to self-defense under international law and may use force to protect themselves from any attack.

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Binay is it!


I am not from Makati. I have, however been practicing law from Makati for the past 25 years. Surely, I have had enough experience with the City to conclude that while not claiming to be a saint, unlike many in this administration, Jejomar Binay is still the best leader to steer this country into the path of genuine and relevant economic growth and democracy.

My admiration for him begins from having known him as my mother’s favorite student in Pasay City High School. While he has lived in Makati for a very long time, he studied high school in Pasay. My mother never ran out of good things to say about the man, He was apparently very poor as a student that my mother and my grandmother, herself a public school teacher, took him under their protective fold not just in school, but even outside of school. My mother would tell me that Jojo was actually her eldest son. An orphan, he obviously brought out my mother’s maternal instinct to the point that Jojo’s many achievement became the proud moments for my mom as well.

But beyond the very parochial reason that Jojo Binay was my mom’s absolutely favorite student in her 55 years or so of teaching, I also admired him particularly during the trying anti-Marcos days. Then a renowned human right lawyer, Jojo was fearless in fighting for the restoration of democracy during one of the darkest moments of our history. His convictions did not go unnoticed. This was why former President Corazon Aquino appointed him Officer in Charge for Makati. This was also why initially, the residents of the country’s financial district gave him a mandate to rule. But the Cory magic could not have lasted long. Remember that like the son PNoy, she was initially everyone’s darling. She left office with one of the lowest acceptance levels of any President since the onslaught of public opinion surveys.

The fact therefore is that Jojo Binay has been in control of Makati, either because he (or his kin) was or his kin mayor of the City, or he did a lot of good to the City. Yes, it had been the financial district even before he became mayor. But it was during his stay in office that the people of Makati actually benefited from the financial growth of the city. This, we hope, is something that he can duplicate nationally for six years, beginning in 2016.

For instance, notice the proliferation of classrooms in the city. Notice how big the city’s college has become. Notice that in primary schools, the city’s children have been fed, a feat which the national government has not replicated. Then, there’s the now-famous yellow card that has enabled the city’ s poor to avail of quality medical care even from private hospitals that cater only to the rich. His developmental model is obviously patterned after Europe: encourage financial development so the rich can be taxed high. Use the tax revenues, in turn, to deliver basic services to the people. And, lest we forget, Makati beat the rest of the nation in according our elders simple but much appreciated privileges—from free movies to the birthday caked that his detractors now want to demonize.

Can I vouch that Jojo Binay did not enrich himself all these years that he has been in control of Makati?

Like everyone else, probably not- if only because I do not have any personal knowledge that he has plundered, malversed and/or misappropriated public funds. Yes, I have heard of some disparaging reports about him. But none of these charges have been proven in Court. Certainly, he could not have evaded the wheels of justice for as long as he has been in control of Makati without the elite from his city ensuring that he would be found guilty of at least for one crime involving graft and corruption. Let’s face it, the elite of Makati from their enclaves in Forbes and Dasma hate the guy, probably because he is dark. Be that as it may, they have not, despite their huge financial resources, been able to prove that Jojo Binay is corrupt.

What do I think about the alleged overpriced parking building in City Hall?

To begin with, all practicing litigators appreciate that building. It used to be dingy court rooms with smelly toilets. Now, the court rooms are world-class. Once, I had foreign observers in a Makati court to observe a trial of a freedom of speech case. The top notch lawyers comprising the trial observation team could only say that they believed that they were in a court room at the heart of Manhattan. And yes, that allegedly overpriced building has given lawyers what they need the most: parking at reasonable rates.

But let the Ombudsman investigate if the building is really overpriced. That’s its constitutional mandate. But for our senators to arrogate unto themselves this constitutional powers in aid of their own elections is clearly an abuse of power.

Will I support Jojo Binay for 2016? Make no mistake: he’s the only one for the job. To begin with, he is a lawyer and unlike PNoy, can defend his initiatives through the wringers of our Court system. He has had a very long experience as a local executive which is the experience that this country needs if we are to improve the plight of the poor. He also has the ideology , which I will describe as European democratic socialist, which judging from what he did in Makati, would mean excellent public schools systems and medical care for our people. With a little luck, and with his experience as housing czar, he can also provide for housing for many which in turn, will also serve as a genuine economic stimulus, unlike the DAP.

Binay’s profession, managerial experience, and the fact that he was once poor and knows what the poor need, make him the guy who should be in Malacanang in 2016. Go Jojo!

First published in http://manilastandardtoday.com/2014/08/28/binay-is-it-/ on August 28, 2014.

Disputing treason because of Itu Aba


It is unfortunate that the discussion of whether recently appointed Associate Justice Francis Jardeleza committed treason in omitting Itu Aba from our statement of Arbitral Claims is taking place with the general public in the dark on what the facts and issues are. This is because under the rules of the Permanent Court of Arbitration, which is hearing our case, all proceedings, other than the statement of claims, are confidential. It appears hence that the few media discussions taking place are on the basis of non-attributable statements of confidential disclosures made by one of the protagonists to the dispute, hiding under the cloak of anonymity. Justice Jardeleza is thus in a fix: While he has been accused of treason, he is unable to defend himself because his role as chief counsel for the Republic forbids him to discuss matters appearing in our written memorial.

I myself rely on the disclosures published by favored media outlets of the confidential source. I do not know hence if I am accurately addressing issues raised by him.

Those who accuse Jardeleza of treason argue that he should have amended our statement of claims to include the submission that Itu Aba, although the largest of the islands in the disputed Spratly’s group of islands, is not “large enough” to be considered an island that can generate an Exclusive Economic Zone (EEZ) of 200 nautical miles. The Chinese view is that the waters within its nine-dash lines are generated by land territories including Itu Aba and Huangyang (Panatag) Shoal, among others.

The problem with this view is that it assumes that the capability of an island to generate an EEZ has to do with its size. In reality, Art. 121 of the UN Convention on the Law of the Sea provides that an island’s entitlement to an EEZ depends on whether it can “sustain human habitation.” In turn, what seems to be controlling in this determination is not the size of an island, but whether the island can have a water source that can sustain human habitation. Internet sources have said that Itu Aba has a fresh water source.

In other words, to include the issue of whether Itu Aba can generate a mere 12 nautical miles of territorial sea or 200 nautical miles of EEZ is a double-edged sword. If Jardeleza’s detractors succeed in the argument that it can generate only 12 nautical miles because 80 hectares is not sufficient, well and good. But if the Tribunal should rule that the water source in the island is sufficient to make it habitable, then the Tribunal will confirm the Chinese view that the waters within the nine-dash lines are generated by land territories and hence, beyond the jurisdiction of the Unclos dispute settlement procedures.
The Philippine arbitral claim is anchored on Art. 286 of the Unclos covering issues of application and interpretation of the Convention intended by the international community as the ultimate constitution for seas. Both the subject matter jurisdiction of the tribunal, and its jurisdiction over the parties, depend on whether controversy resolves around maritime territory or sovereign rights and whether a party to such a dispute is a party to the Convention. Its jurisdiction does not include maritime territories generated by land territories. This is because the latter would amount to a “mixed claim,” so-called because it consists of territorial claims to both land and water, which would no longer amount to issues of interpretation or application of the law of the sea. The international law applicable to land territorial disputes are governed by the law of effectivities, or the rule that disputed land territory will be awarded to the claimant state with a superior claim to effectivities, or the exercise of effective occupation. The regime applicable to conflicting claims to maritime territories is the so-called “equitable principles that would result to an equitable solution.”

Moreover, to include Itu Aba in order to procure a declaration that China’s nine-dash lines are without legal basis may also trigger China’s specific subject matter reservation to maritime delimitation. If the Tribunal rejects the view that the island can only generate a 12-nautical mile territorial sea, then the Tribunal would inevitably have to rule where the boundary lies between Itu Aba’s and Palawan’s EEZ. This is a jurisdiction, which China specifically reserved from the jurisdiction of the Unclos dispute settlement procedures.

While China has opted not to participate in the arbitral proceedings, it has caused the publication of a book containing its objections to the jurisdiction of our Unclos arbitral tribunal on the basis that our claims are a “mixed claim” and hence beyond the jurisdiction of the Tribunal. Consistent with established litigation technique in international law, China has not addressed the merits of our claims, apparently confident that it will prevail in its preliminary objections to the Tribunal’s jurisdiction.

In light of the foregoing, it appears grossly unfair to accuse Jardeleza of being a traitor for his hesitancy to include Itu Aba in our arbitral claims. There are those who have openly sided with China on this issue: A colleague in the UP College of Law who was a beneficiary of a Chinese junket and who has published that the Tribunal will dismiss our claims for lack of jurisdiction. There too are Makati-based lawyers lobbying for joint use and development with China even of undisputed territories such as Recto Bank. But Jardeleza a traitor? That’s what China wants us to think.
(Harry Roque is associate professor at the UP College of Law.)

Read more: http://opinion.inquirer.net/77892/disputing-treason-because-of-itu-aba#ixzz3Bdc0G17m
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