China’s retaliation?


Former Secretary Raffy Alunan warned on ANC this week that China will retaliate in response to our filing of our Memorial in our  pending arbitration against China under the UN Convention on the Law of the Sea (UNCLOS). Citing the earlier move of China in banning the entry of our bananas into their territory, Alunan warned that China’ s retaliation could be in the form of further economic sanctions and worse, even sabotage. Referring to the possibility of the latter, Alunan warned that the Chinese could resort to sabotage of our power grid, since the National Power Grid Corporation is 40% owned by a Chinese company. He also warned about possible cyber attacks against our networks.  A pro-China advocate has dismissed Alunan’s warnings as unlikely. I prefer not to dismiss the warnings as in fact; history has shown that nothing is impossible in the field of international relations. Who would have thought that the United States would persist in its illegal occupation of Iraq? Neither did we expect that Russia would be so brazen as to annex Crimea?   Simply put, we have to prepare for China’s retaliations, whatever form it may take.

Alunan was actually warning about two things: one, China’s unwavering claim to the nine-dash lines; which will persist whether or not we continue with our arbitration. Second, the fact that China has not been shy in telling the world that it takes offense to the fact that it was sued before an international tribunal. Judge Xue Henquin explained in the Biennial Conference of the Asian Society of International Law that this was a “cultural” trait of the Chinese. They just don’t like to be sued.

Alunan’s warnings therefore should be qualified. Insofar as the Chinese claim to the West Philippine Sea is concerned, China will not only resort to sanctions and sabotage in order to defend its claim. In fact, its published defense policy is to develop sea-denial capability in the West Philippines Sea from 2010 to 2020. This means that it will not have second thoughts in ousting countries, even through the illegal use of force, that it views as “intruders” in the disputed islands and shoals in the Spratlys and Panatag. On the other hand, given China’s antipathy towards the arbitration, which, if the Tribunal assumes jurisdiction will surely result in judgment against it, China will apply, all sorts of pressure for the country to withdraw the same. This is where the sanctions and sabotage may come to play, as warned by Alunan.

In any case, Alunan’s warning about the sabotage on our power grid deserves serious attention. With allegations of price fixing now hounding our power producers, Congress should seriously re-examine its earlier view that power generation and distribution are not in the nature of public convenience. Had they been as such as in fact they are, the state could have exercised the necessary regulation that could have prevented these allegations of price fixing today. Moreover, power generation and distribution are franchises. They are for the public with the latter as end users. Ergo, both businesses are hence vested with the public interest and hence, their entitlement to engage in these kind of business should be in the nature of a privilege and not a right. The consequence of this would be an outright revocation of their franchise if the allegations of price fixing could be proven.

In any case, while I fully concur with Alunan that the Philippines should be weary of China’s retaliation, perhaps we should still not be too alarmed on the consequences of the filing of our memorial due on the 30th of this month.

I think what China objects to is the initiation of the arbitral proceedings itself and not the memorial per se. In fact the Chinese, through Judge Xue, considers the arbitration as a “substantive breach” of the code of conduct agreed upon by China and ASEAN. What baffles me on this point is how China can complaint that a peaceful resort to peaceful arbitration can be a breach of a treaty obligation while at the same time, resorting to the firing of water canons at unarmed Filipino subsistence fishermen as being in compliance with the said code of conduct.

One final point. Alunan said that the barring of Philippine bananas was because of the initiation of the arbitration proceedings. This is not the case. The resort to non-0-trade barriers against our bananas was an offshoot of our navy boat arresting Chinese fishermen in Panatag. Fortunately, while China can resort to this anew, it will not be as easy as it was in the past. This is because meanwhile, ASEAN and China entered into a bilateral investment agreement that grants protection to both our investments and export products. This means that it will be expensive for China to bar entry of any of our export commodities henceforth. This courtesy of the ASEAN Investment treaty with China.

(as published in the column of Atty. Harry L. Roque Jr. in Manila Standard Today, 27 March 2014)

 

Centerlaw Statement on the Maguindanao Massacre Prosecution


Centerlaw supports the public prosecutors in their decision to rest the case against the 28 accused last March 4. Centerlaw, an affiliate of Media Legal Defence – Southeast Asia, represents families of 13 media victims and 2 other civilian victims. With this decision to rest, the prosecution panel has completed its role in presenting evidence against the accused, and the case can move on to the next stage, with the defense presenting their evidence.

According to Centerlaw Chairperson Harry Roque, “With a panel this large, and with all the pressure that goes with prosecuting the “Trial of the Century”, it is to be expected that there will be differences in opinions, theories and strategies. We would like to assure the public that whatever issues there may be within the panel, everyone’s goal is the same: to ensure the conviction of those accused of murdering 58 people.”

Private Prosecutor Gilbert Andres adds, “We fully support the DOJ prosecution panel. The members are doing everything within their power to get a conviction in this case. We enjoin other private prosecutors to submit their constructive suggestions on how to hasten the proceedings. We cannot afford to have a third change of panels. We welcome the decision to rest the case as this means that we can even have an early verdict against one of the principal accused – Andal Ampatuan, Jr.”

The recent Memorandum from the Supreme Court approved Centerlaw’s proposals to expedite the trial, among them “First in, First out”. This will allow Judge Jocelyn Solis-Reyes to decide the case against the accused as soon as the evidence presentation is finished against them, which will hasten the proceedings. Among the 28 accused whose cases have been rested is Andal Ampatuan, Jr., an alleged mastermind and shooter during the massacre.

Centerlaw further confirms that during a meeting held in January 2014, the public and private prosecutors had discussed the impending resting of the case against some of the accused. #

Forum on “Philippine Legal Compliance to the 2015 ASEAN Economic Community: Solutions to Legal Challenges


The UP Institute of International Legal Studies (IILS), in cooperation with the School of Economics, is inviting everyone to a forum entitled “Philippine Legal  Compliance to the 2015 ASEAN Economic Community: Solutions to Legal Challenges” on Tuesday, March 25, 2014,  at 8:00 a.m. – 5:00 p.m. at the Malcolm Theater, University of the Philippines College of Law, Diliman, Quezon City.

Our obsession with Bar topnotchers


UnknownUnknown-1The UP College of Law topped anew the 2014 Bar examinations with my student, Nielsen Pangan, placing first. His schoolmate, Mark Oyales, bagged the second place. Three other students from UP Law landed in the top 10: Eden Mopia was fourth, Michael Tiu was eighth and Cyril Arnesto was tenth.

This was the first time for UP Law to top the Bar Examinations since Joanne de Venecia placed first in 2005. In 2011, no one from UP placed in the top 10 of the Bar.

I am, of course, together with the entire UP community, ecstatic about the results. This is not just because I am a product and a professor of UP Law. It is more because every UP graduate’s success is a toast to the poor and the middle class in this country. The UP dream is the stuff that is written about in telenovelas: poor children dreaming of climbing the economic ladder through a world-class education.

That’s why more people celebrate when UP students top not just the Bar -but the other Board exams as well. While private school graduates should also be honored when they reach similar success, the joy of topping the exams for a rich kid is simply not the same when poor or middle class students achieve the same fete. This explains why when the likes of Nielsen, the son of a Meralco engineer and a housewife; and Mark, son of a security employee and a bakery worker from Tacloban, top the bar, the entire nation celebrates with them. This is because their success is the success of every middle-class and poor family in this country. Rich people, when they achieve the same feat, celebrate only amongst themselves in their gated enclaves. The poor and the middle class, on the other hand, live their dreams through students like Pangan and Oyales. This is the UP fairy tale.

Be that as it may, this country really ought to reconsider the prestige and importance that it bestows on the Bar top notchers. Having been a Bar examiner in 2010, I have probably earned the right to say that given the very limited time given to Bar examiners to check almost 6,000 booklets of essay questions, the Bar exams could not be a reliable measure of one’s preparedness to be a member of the Bar. Moreover, one’s success as a lawyer is not measured by how well one does in the Bar examinations. Here, it’s the successful barristers’ future conduct as lawyers that will determine his or her greatness as a lawyer. Case in point is that of the former dictator Ferdinand Marcos, who despite having been a bar top notcher, earned notoriety for infringing on rights protected by the Bill of Rights. Here you have an instance when a topnotcher earned notoriety because of what he did with his title later on in his life. If the bar exam results were indeed the ultimate measure of one’s preparedness to be a lawyer, then the remains of Marcos should today be at the Libingan ng mga Bayani and not in an air-conditioned crypt awaiting a funeral.

But an even more fundamental consideration is: what kind of lawyers are we producing with the obsession we have with topping the Bar examinations? Responding to the debacle of 2011 when no student from UP landed in the top 10 of the Bar, UP Law has since required its students to enroll in bar review subjects as electives instead of those that will enrich them as lawyers in an increasingly internationalized profession. For instance, I no longer teach electives on International Humanitarian Law and UNCLOS that have enabled at least two of our graduates, Raymond Sandoval and Suzette Suarez, to land appointments in the International Criminal Court and the International Tribunal on the Law of the Sea, respectively. Likewise, we have done away with the elective on International Trade Law that enabled the likes of Dr. Diane Desierto and Ana Ramos to land careers as a tenured faculty teaching trade law at the University of Hawaii and the World Trade Organization, respectively.  Likewise, we have done away with the elective on project financing which has proven to be the country’s monopoly in terms of cross border legal practice.

Worse, this giant step backward—just to satisfy the country’s obsession with Bar top notchers—is still happening when we only have a year before the borderless Asean Economic Community comes into being in 2015. This will usher in not only free cross border trade in goods, but also in services, including the practice of professions.

There is hence an apparent contradiction with UP Law’s decision to revert to being a bar review institute with the decision of the University itself, for instance, to change its academic calendar to begin in August, to be in synch with the rest of Asean. Simply put, we are retreating to the Jurassic past when we seek to produce Bar topnotchers instead of preparing grand lawyers for an increasingly interdependent world.

But what the heck: the public wants the topnotchers and for now, UP played well to the gallery. I hope though that for the country’s sake, this obsession will soon be a thing of the past. For otherwise, while we continue to heap praises on the topnotchers of an archaic exam, the country, meanwhile, may be left behind in the race for modernity.

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China’s thrust for Ayungin and Marinduque’s options


The news reported that China had recently blocked delivery of food supplies to our troops holed up in a derelict US ship in Ayungin shoal. To many, this is another first since it is the very first concrete step taken by China to take possession of the disputed shoal from us. In reality, though, this recent act is but another manifestation of China’s long-term overall maritime policy in relation to the West Philippine Sea and the rest of the world.

China’s defense and maritime policies are contained in several printed policy papers beginning in 1998. This was updated in April 2013 and is entitled “The Diversified Employment of China’s Armed Forces.” According to this document, the Chinese policy is to “safeguard its border and promote its coastal security.” The document states that the role of Chinese armed forces is “to defend and exercise jurisdiction over China’s land borders and sea areas.” In the same paper, China regards the West Philippine seas as its coastal waters, the defense of which enjoys the same priority as quashing any attempt at achieving independence of Taiwan and opposing calls for the right to self-determination of Tibet.

Unlike the Philippines, China has a printed policy paper on its short-, medium- and long-term maritime policy. Its overall objective is to resurrect China’s old glory of being a world maritime power by 2050. Meanwhile, it is pursuing two short- and medium-term goals: during the first phase concluding in 2000, the People’s Liberation Army shall have acquired sea-control power within its coastal waters. During the second phase, which is from 2010-2020, the PLA shall have achieved a kind of sea-denial capability within its first island chain in the West Pacific, the West Philippine Sea. It is precisely this second goal which explains China’s recent actions in Ayungin. If the printed maritime policies are to be followed, this means in fact that China will not only take control and possession of Ayungin, it aims also to occupy all other disputed islands, shoals and reef, even the biggest island under our occupation, Kalayaan. The issue is not if, but when it will actually do so.

It is precisely this maritime defense policy that gives urgency to an early resolution of our arbitral claims now pending with the Permanent Court of Arbitration. Unless the tribunal rules on the validity of China’s nine-dash lines, China will implement its 50-year maritime policy in a manner that treats the entirety of the West Philippines Sea encompassed by these lines as its internal and territorial waters. For what it’s worth, the initiation of the arbitration will be remembered forever as PNoy’s best foreign policy initiative.

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I have been to the island of Marinduque twice in a time span of a month, The reason is to explain the $20-million dollar offer made by Barrick Gold, the biggest gold mining company in the world, to settle the suit of the province filed against it in 2005 currently pending in a Federal Court of Nevada.

Since I am not qualified to practice in the United States, my participation in the lawsuit was only as an expert witness on the binding nature of international environmental law to the United States. One of the cornerstones of environmental law is the so-called “polluter pays principle”, which mandates that entities that cause pollution must pay for the clean-up.

The US Coast Guard has estimated that no less than 100 million dollars is required to clean up the 200 million tons of mine tailings dumped into the island’s rivers and waters. The problem though is that meanwhile, the Supreme Court of the United States ruled in the case of Kiobel vs., Shell that henceforth US courts should  not exercise jurisdiction over claims against foreign corporation for acts which did not take place in the territory of the United States. Kiobel was s a case under the Alien Tort Claims act that authorizes US courts to exercise extra-territorial jurisdiction against respondents found in the US for violations of International Law. This statute has been utilized since the 1980s as a means to hold despots responsible for their acts of extralegal killings, torture and enforced disappearances since the case of Filartiga involving a former Panamanian despot. This was also the cause of action of the martial law victims against the estate of Marcos.

In 2013, the US Supreme Court in Kiobel held that henceforth, US courts cannot exercise jurisdiction versus foreign corporations for torts committed overseas solely because these foreign corporations’ shares are listed in the stock market in the US or because they have a commercial presence in the US. Today, the US Supreme Court requires the following as the test for the exercise of US jurisdiction: Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application?”

Unfortunately, much as I would want a higher settlement for Marinduque, the pending case against Barrick appears to be barred by the test of Kiobel. This is because Barrick is a Canadian company and the acts that led to the environmental damage were done in the Philippines. Sad to say, the province has become of the many victims of the Kiobel test. But hey, $20 million dollars is still about a billion pesos. This is hardly a sum of money that can be considered peanuts to to a province that earns only P200 million annually.

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Request for coverage : Centerlaw, on behalf of Alexander Adonis, to file Motion for Partial Reconsideration re: Cybercrime Law at SC tomorrow


Radio broadcaster Alexander Adonis, represented by Centerlaw, will lead petitioners in filing a Motion for Partial Reconsideration at the Supreme Court, tomorrow, March 13, 2014 at 1:00 pm, re: Cybercrime Law of 2012.

Reference Prof. Harry L. Roque 09175398096

 

 

Why the invasion of Ukraine concerns us


Russia’s invasion of Ukraine highlights how some countries can so easily breach the United Nations Charter provision on the prohibition on the use of force. Imperfect as the Charter may be, it has still achieved a tenuous peace since World War II by prohibiting resort to force except in two very well defined exceptions: self-defense, and when so authorized by the UN Security Council. Contemporaneous with the UN Charter is the international community’s resolve to penalize individuals who may start wars for the international crime of aggression. In fact, the first prosecution for this crime was against the Nazis for their act of waging war during World War II. Former Defense Secretary Donald Rumsfeld and even President George Bush II continue to be accused of this crime of aggression in Germany and Belgium.

Note though that when strong countries violate the prohibition against the use of force, they will argue that despite their action that they have complied with the normative rule against the waging of wars. For instance, the United States, when it invaded Iraq a second time around—this was after Iraq had already been driven out of Kuwait—argued that despite the absence of a fresh mandate from the Security Council, its acts were nonetheless covered by the earlier Security Council Resolution authorizing the ejection of Iraq from Kuwait. In Ukraine, Russian President Vladimir Putin argues that his action was to protect the millions of Russians living in Ukraine after an incredibly corrupt pro-Russian Ukrainian President was deposed in a bloodless people power reminiscent of ours in 1986.   It was therefore the exercise of jurisdiction to defend millions of its ethnic Russians living in Ukraine.

But superpower rhetoric, more often than not, is farthest from the truth. In both Iraq and Ukraine, it was economic interest that propelled superpowers to breach international law. In Iraq, it was to enable Bush’s campaign contributors form Texas, notably oil and gas companies, to take over the lucrative oil and gas fields of Iraq. In Ukraine, it is similarly, to enable Russia to control recent oil and gas deposits discovered found in the area, specifically in Romania. In fact, Ukraine, after gas was discovered in Romania, was about to sign an exploration agreement with oil giant Exxon. I do not think this is forthcoming anymore. Moreover, like the Americans who want to use out military installations through the Increased Rotational Agreement, the entire Russian naval fleet is stationed in Ukraine, particularly in Crimea, pursuant to what many believe is a one-sided treaty.

Of course President Obama has come under fire from his Republican critics for allowing Russia to act with impunity. What these critics do not tell the public is that the US cannot question the acts of Russia because it has unclean hands. By invading and still occupying Iraq today, it is equally guilty of violating the prohibition on the use of force.  It therefore has no moral and legal standing to question Russia’s acts because of the “unclean hands doctrine”—a state cannot come to court with unclean hands.

So should Filipinos stand idly by and accept the realities of power politics i.e., that might is right?

Far from it. Imperfect as the world may be, weak countries like the Philippines can only rely on the rule of law to achieve a semblance of equality with its mighty neighbors.  The Philippines should be at the forefront of protesting any resort to the unlawful use of force because our own powerful neighbor, China, may just follow suit and eject all our troops from the islands that we currently occupy in the disputed Spratly group of islands. They have done this in the past when they took control of Mischief Reef and Panatag. They have been threatening to drive our boys away from the derelict warship that is our   basis of our occupation of Ayungin shoal. They certainly could very well invade Kalayaan and eject all nationals from there. If the US and Russia could invade the mainland’s of Iraq and Ukraine, China could certainly invade remote and uninhabited islands in the West Philippine Sea.

Which leads me back to the normative value of the United Nations Charter. Yes, Chapter VII of the Charter, which is the section on collective security measures, the means envisioned to prevent another “scourge of war”, is far from perfect. But its literal provisions give weak countries such as the Philippines comfort that despite inequity in power politics, international law seeks still to achieve equality before the law.

Let’s condemn both the continuing US occupation of Iraq and Russia’s invasion of Ukraine!