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)

 

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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The nerve of Hun Sen


The nerve of Cambodian Prime Minister Hun Sen to say that the Association of Southeast Asian Nations has opted not to internationalize the West Philippine Sea dispute! The group in fact approved no such resolution.  If at all, Asean has failed to make any stand on the matter. But this is not to say that it has opted for what China wants: bilateral negotiations.

I have more than enough experience dealing with Chinese media and officials to know what they mean when they say bilateral relations: all tensions will disappear if and when the Philippines admit that it has no title to both the Panatag shoal and the Kalayaan group of Islands. Yes, it’s not  enough that we are no match to China either militarily, politically, or economically. Bilateral negotiations mean that surrender is the only way to go for the Philippines.

It was hence but proper for President Noynoy Aquino to uphold the Philippine interest even at the risk of appearing undiplomatic. While Hun Sen was saying falsities, our President bravely stood up and said: “for the record, the Asean route is to the only route for us.” This was immediately after Hun Sen declared that Asean had agreed to negotiate with China on these disputes.

Even if China genuinely wants bilateral talks to peacefully end the West Philippine Sea disputes, why should it involve only two countries? Certainly, Kalayaan is claimed by at least five countries. What happens to the other claimants? And if China is able to show that its claim over the waters in the triangular area between Macclesfield Bank, Panatag, and the Kalayaan group of islands is legal, has not the international community acquired an interest in this dispute because these waters are also one of the world’s busiest shipping routes? Certainly, this fact alone, together with concerns over pollution in this busy route, should warrant a multilateral approach to this dispute.

The fact that Hun Sen was downright  pro-China should not come as a surprise. He is  one of the remaining despots in the world largely because of his China connection. This despite being part of the Pol Pot regime that committed genocide that is now being prosecuted by the Extraordinary Chambers of Cambodia. Certainly, Hun Sen was not only wrong in what he was saying when he was interrupted by President Aquino. He is also no match to our PNoy in terms of moral stature.

In any case, certainly, internationalizing the dispute should include the option to bring the dispute, at least Panatag, to the compulsory and binding dispute settlement procedure of the UNCLOS. Since, both China and the Philippines have ratified this Convention, the dispute procedure would be mandatory on issues involving any issue of interpretation or application of the Convention. As I have said many times in the past, despite the ill-advised 2009 Archipelagic Baselines Law that appended both the Kalayaan group and Panatag to our territory under the so-called “regime of islands”, the issue of whether Panatag is an island, even if only five very small rocks are permanently above water, or a “rock”, or “geographic formations”, which as held by the International Court of justice pertains to the state that has title or rights over the waters surrounding them, are all issues of interpretation which should be resolved through binding arbitration under UNCLOS. This issue may also be the subject of preliminary measures by the International Tribunal on the Law of the Seas.

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America: The former superpower


America is now an ex-superpower. First, it ceased to be the biggest economy in the world. It is now only the second-biggest economy. China has long overtaken it and the tables have been turned. Communist China has not only become an economic tiger; it has also become the biggest creditor of capitalist America.

And the decline of superpower America goes beyond economics. With China’s recent foray into bullyism (yes, I invented that word) in the West Philippines Sea, it has allowed China to challenge its pre-eminence in the Pacific front. This used to be its bastion since World War II. This was why despite granting the Philippines nominal independence, it insisted on utilizing the country as an unsinkable military carrier with take-off points at Clark and Subic. These were bases that used to be its biggest military installations outside the mainland US.

Today, it is longer the US Navy that is feared in this part of the world. It is now the Chinese Navy that lords it over in these waters. First it took possession of Mischief Reef in the disputed Kalayaan groups of islands from Filipino soldiers then assigned in the island. Today, it has effectively driven away all Filipino presence in Panatag Shoal, an area that is literally the backwaters of the province of Zambales. And if the respected journalist Chito Santamaria is correct, China is not just interested in the fishing waters around Panatag. The real battleground, according to Chito, is Recto Bank where Manny Pangilinan is about to drill for oil.

Amidst this newfound Chinese expansionism, where is America? Well, at the first sign of a conflict, Hilary Clinton declared that it would take a neutral stance and urged a peaceful settlement of the dispute. Later, when the standoff persisted, she declared during a US Senate concurrence hearing on the UN Convention on the Law of the Sea that China’s claims to the vast waters of the West Philippine Sea exceeded what is allowed under international law. And recently, when President Noynoy Aquino went to the US begging anew for help, no less than President Barack Obama was clearly non-committal. This is apparent in a White House release after the meeting between Obama and PNoy stating, among others, that the two leaders merely agreed on “firm support for a collaborative diplomatic process among claimants to resolve territorial disputes in a manner consistent with international law and without coercion or the use of force.”

Make no mistake about it. Uncle Joe can’t be counted upon to deal with China- the bully.

Central to American foreign policy is that as the lone superpower of the world, it can be counted upon to maintain peace and order in this planet. At the very least, if its economic woes have become so bad that it can no longer play the role of superman, it should have sufficient resources to stand by its long-standing ally when needed. But no, nowadays, the American position is for its allies to swim or sink. Full stop.

This is not to say that the American position is wrong. I for one have never believed that mother America will ever come to our rescue solely to defend our interests. This is why I have been a long supporter of the likes of Claro M. Recto and Jovito R. Salonga, who believed no one can be counted to uphold Philippine interest but us -Filipinos.

Still, this lackadaisical manner by which America seems to regard the recent threat of Chinese expansionism is a major change in its foreign policy.

Make no mistake about it. While America couldn’t care less about the West Philippine Sea, it will come back to Subic and Clark not to defend us; but to uphold its own national interest. This is why it is in the process of sending 60 percent of its navy forces to Asia. Malacañang, I’m sure would want to take credit for this. But nope, this has been in the offing even before our recent controversy with China. At most, perhaps, the actual deployment of these forces to Asia was hastened by the dispute. They will come though not because Scarborough and the Spratly islands are ours. They will come because China’s claims to these territories may precisely hinder deployment of their ships into these waters.

We, unfortunately, are irrelevant to their policy.

Wanted: A Regional Human Rights Body


On October 23rd, the Association of Southeast Asian Nations (ASEAN) officially inaugurated the ASEAN Intergovernmental Commission on Human Rights (AICHR). Amongst its purposes is to “to promote human rights within the regional context, bearing in mind national and regional particularities and mutual respect for different historical, cultural and religious backgrounds, and taking into account the balance between rights and responsibilities”. Amongst its mandates, on the other hand, is “to develop an ASEAN Human Rights Declaration with a view to establishing a framework for human rights cooperation through various ASEAN conventions and other instruments dealing with human rights”.

The creation of the AICHR was expectedly met with high hopes that ASEAN, amongst the most vibrant regional groupings today, would finally establish a regional human rights mechanism. While there was no illusion that this body would replicate the European Court of Human Rights overnight, it was at least expected that the body would prove to be somehow responsive to the human rights challenges in the region and at least have the competence to declare countries in breach of their human right obligations. ASEAN, after all, is home not just to some of the fastest growing economies in the world; but also to the most repressive regimes with Burma high up on the list, and Vietnam, Cambodia, Thailand, the Philippines and Singapore not far behind.

Because of high expectations for this newly created Commission, some relatives of victims of the infamous Ampatuan massacre in Maguindanao, filed the very first communication with the commission barely two months after the massacre. The massacre was widely reported worldwide because of its gruesome nature: the perpetrators killed all 58 victims in cold blood using high-powered firearms and attempted to bury all evidence of the massacre, both corpses and vehicles, in three holes dug by a back hoe in Sitio Masalai, Ampatuan Maguindanao. At least 32 of the victims were journalists, adding notoriety to the massacre as the single most deadly attack against journalists worldwide. The communication filed by 13 family members of slain journalists sought to declare the Philippines in breach of the right to life and freedom of the press when their loved ones, all journalists, were killed by at least 195 individuals, all of whom are state organs. By way of reliefs prayed for, the petitioners, led by a high school teacher, Noemi Parcon, asked for a declaration of breach a well as for the Philippine government to make reparations and to pay compensation.

The petition was filed with a sense of desperation. With the suspected perpetrators perceived to be very close allies of the Former Philippine President Gloria Macapagal-Arroyo, the victims were fearful of a whitewash and a cover-up. This fear proved to be well founded since 10 months after the filing of the communication, Lakmudin Saliao, testified in court how the accused spent 400 Million pesos to cover-up the massacre. Human Rights Report would also conclude that the former President was at least partially responsible for the massacre because of her complicity.

As an advocacy tool, the petition was envisioned to trigger the development of a mechanism that would at least receive individual communications and declare breach of state obligations under human right law, at least in the manner by which the UN treaty monitoring bodies do. While these bodies issue only non-binding “views”, it was hoped that since no state would want to be declared to be in breach of a state obligation, that the declaration of breach by itself would be a remedy of sorts for those whose rights have been violated. Eventually, it was also hoped that the body would develop in the path of the Inter-American Commission on Human Rights which today, declares breaches of state obligations and orders both reparations and the payment of compensation.

The high hopes for the commission proved short- lived. In March 26, 20101, Rafendi Djamin, the Indonesian Representative to the Commission and respected as its most “progressive” commissioner, faced Noemi Parcon and others who sought to file their own communications and delivered the the sad news: the Commission will only receive thematic reports on human rights issues, but not individual complaints, and therefore no further action will be taken on any petition.

A year after the Ampatuan massacre, the victims continue to be denied of a speedy remedy under domestic law since a judgment of conviction does not appear to be possible in the near future. They are furthermore, denied reparations and compensation. It is precisely because of these shortcomings of our domestic law that a regional human rights mechanism should be established and soon.