Provisional measures


Philippine policy makers have confirmed that despite the pendency of its arbitration proceedings under the binding and compulsory dispute settlement procedure of the UN Convention on the Law of the Sea, China is hastening the building of an artificial island in Mabini reef, as well as expanding its existing artificial island in Fiery Reef.

Contemporaneous with these construction, China has been more aggressive in exercising its sovereign right to explore for oil in the disputed area leading to recent boat ramming incidents resulting in at least 10 Vietnamese being wounded. It also issued what appears to be a demand letter for the Philippines to leave all of the disputed islands and waters in the Spratlys, as well as from Panatag shoal, the latter being separate and distinct form the Spratlys.

I have written before that China’s acts are consistent with its published defense policy, which currently seeks to achieve “sea-denial capability” in what it considers as its coastal waters, the waters within the so-called nine-dash lines. Clearly, one must commend the Chinese—albeit bereft of legal merits—for their consistency in both policy formulation and implementation.

Given recent Chinese actions and the fact that contrary to the best hope of Philippine policy makers that US President Obama’s visit to the region will have a deterrent effect on Chinese expansionism, these recent events validate China’s design to expel all other claimant countries from the disputed territory on or before 2020, which is only six years away. Given this reality, it becomes imperative for the Philippines to prompt the UNCLOS ad hoc Tribunal to hasten the process of its ruling particularly on the validity of the nine-dash lines, described by a Japanese academic recently descried as a prayer for “declaration of rights” rather than an exercise of maritime delimitation, the latter being covered by a Chinese reservation to the jurisdiction of the UNCLOS dispute settlement procedure.

One manner by which the Philippines could utilize the existing arbitration as a means to curtail China from its expansionist desires is through a remedy known as “provisional remedy” provided under Art. 290 (1) of the UNCLOS. Said provision reads: “If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final decision”.

Case law is replete with instances when Tribunals deciding on issues involving the Law of the Sea have resorted to provisional measures. For instance, the ITLOS, prior to the formation of an Hoc panel headed by Filipino Florentino Feliciano in the Southern Blue Fin Tuna case, issued a provisional order against Japan from further fishing of blue fin tuna in the pacific pending resolution of the arbitration on the merits. Likewise, in MV Saga No. 2, ITLOS issued provisional measures for the immediate release of the vessel and its crew. In the latest case between Netherlands and Russia involving the arrest and charging of Greenpeace activists charged by Russia with piracy, the ITLOS also issued provisional orders for the immediate release of the activists.

The literal provisions of Art 290 of the UNCLOS on provisional remedies require only two elements for the issuance of a provisional order, to wit; prima facie determination of subject matter; two, necessity of preserving rights of the parties pending the final decision.

I suppose the reason why the Philippine legal panel did not ask for provisional measures from the start of its claim is because of China’s specific reservations to the dispute settlement of the UNCLOS which may come to play where a provisional order is asked of the tribunal. Specifically, this relates to the exercise of law enforcement activities arising from the exercise of sovereign rights. Note that the arbitration was finally resorted to by the Philippines after its fishermen were literally barred from fishing in the area of the Panatag shoal. Fishing in the Exclusive Economic Zone is an exercise of sovereign rights, which relates to the exclusive right to explore and exploit natural resources found in the EEZ. Had the Philippines asked at the onset for provisional remedy against China barring Filipino fishermen from fishing in Panatag, the controversy would have fallen on a subject matter expressly reserved by China from the jurisdiction of the tribunal: the sovereign right to fish.

But China’s recent acts have gone beyond law enforcement activities relating to sovereign rights. The building of artificial islands in low tide elevations, such as Mabini reef and Fiery Cross reef, are actual exercise of sovereign rights and do not relate to law enforcement activities. Likewise, its recent use of and resort to the threat to the use of force against the Philippines and Vietnam, coupled with its demand for both claimants to leave the area under their possession, are clear exercise of sovereignty and do not relate to the subject matter reservation of China. Moreover, China’s acts, because they are done pursuant to its disputed nine-dash lines, may be challenged on the basis that the Philippine (would be) prayer for provisional measures, and its prayer on the merits, call for declaration of rights and not maritime delimitation, the latter also excluded by China in its reservations to the UNCLOS dispute settlement procedure.

The bottom line is this: when the UNCLOS required all parties thereto to bring all questions of interpretation and application to the dispute settlement of the Convention, it could not have contemplated that state parties who opted not to participate in these proceedings should be allowed to violate provision of the Convention with impunity more so when they choose not to participate in the compulsory proceedings. Given China’s recent actuations, it’s high time that it is reigned in through a provisional measure.

China is challenging UNCLOS


Following is an excerpt from my discussion in the recently concluded 5th Annual Meeting of the Japan Society of International Law held last June 15, 2014 at Chuo University in Tokyo.

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its slew of building projects on disputed reefs in the area are aserious and belligerent violations of the UN Convention on the Law of the Sea (UNCLOS), to which it is a party.

Its refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratlys constitute a serious breach of the UNCLOS. As a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention.

The international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the “constitution for the seas”. By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory.

The view expressed recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice, that states that made declarations when they ratified the UNCLOS, China included, are “deemed to have opted out of the dispute settlement procedure of the Convention” is erroneous. Proof of this is that China subsequently made reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures. This proves that China agreed to be bound by the procedure and hence, it is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal.

More worrisome is China’s recent resort to the use of force in bolstering its claim to the disputed territories.

It has been reported recently that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its naval forces to ward off any opposition.

These construction are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings.

The Philippines initiated proceedings under the UNCLOS dispute settlement procedure to declare that China’s nine-dash lines is illegal since it is not sanctioned by the UNCLOS. The Philippine claim also asked the Hague-based arbitral tribunal that four “low-water elevations,” so-called because they are only visible during low tide, and where China has built artificial islands, be declared as part of the continental shelf of the Philippines, and that the waters outside of the 12 nautical miles of Panatag shoal be declared as part of the Philippine Exclusive Economic Zone.

China’s claim is that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. But clearly, the three specific prayers of the Philippines involve only issues of interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, this is not the subject of the Philippines’ claim.

The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory. This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim. He likened the Philippine proceeding to that initiated by Mauritius against the United Kingdom. In this case, which is also pending, the UK has argued that the dispute settlement proceedings of UNCLOS should not apply because the disputed maritime territory are generated by land territory.

The Japanese academic, Prof. Nishimoto Kentaro of Tohoku University, on the other hand, expressed reservations whether the Philippines could prevail in impugning China’s title to all four islands where it has built artificial islands, two of which the Philippines claims, should form part of its continental shelf. The Japanese academic observed that since two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan, these two may not be declared as part of the international sea bed.

He supported, however, the Philippines’ position on the nine-dash lines arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS. He characterized the Philippines position against the Nine-Dash lines as “very strong”.

Japan is also engaged in its own territorial dispute with China over Senkaku Island.

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UP PROF: “CHINA CHALLENGING UNCLOS”


REF. Atty Romel Bagares 09166679802

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its slew of building projects on disputed reefs in the area are “a serious and belligerent violation of” the UN Convention on the Law of the Sea (UNCLOS), of which it is a member, according to an outspoken Filipino legal academic at an international law conference in Tokyo.

Speaking at the 5th Annual Meeting of the Japan Society of International law at the Chuo University Law School last Sunday, University of the Philippines professor Harry L. Roque Jr. said that China’s refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratly’s constitutes a “serious breach of the UNCLOS since as a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention”.

Roque, who is also Director of the UP Law Center’s Institute of international Legal Studies, said that the international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the “constitution for the seas”.

“By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory,” said Roque.

Debunking the view expressed recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice that states that made declarations when they ratified the UNCLOS, China included, are deemed to have opted out of the dispute settlement procedure of the Convention, Roque noted that China’s subsequent reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures proves that China agreed to be bound by the procedure. “This means that China is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal,” Roque said.

More worrisome, according to Roque, is China’s recent resort to the use of force in bolstering its claim to the disputed territories.

It has been reported recently that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its naval forces to ward off any opposition.

“These construction are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings”, Roque said.

The Philippines is the International Tribunal on the Law of the Sea to declare that China’s nine-dash lines is illegal since it is not sanctioned by the UNCLOS. The Philippine claim also asked the Hague -based arbitral tribunal that four “low-water elevations,” so-called because they are only visible during low tide, and where China has build artificial islands, be declared as part of the continental shelf of the Philippines, and that the waters outside of the 12 nautical miles of Panatag shoal be declared as part of the Philippine Exclusive Economic Zone.

Roque belied China’s claim that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. “Clearly, the three specific prayers of the Philippines involve interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, these are not the subjects of the Philippines claim, Roque added.

The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory. This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim. He likened the Philippine proceeding to that initiated by Mauritius against the United Kingdom. In this case, while it is also pending, the UK has argued that the dispute settlement proceedings of UNCLOS should not apply because the disputed maritime territory are generated by land territory.

The Japanese academic, Prof. NIishimoto Kentaro of Tohoku University, on the other hand, expressed reservations whether the Philippines could prevail in impugning China’s title to all four islands, which the Philippines claimed should form part of the Philippine continental shelf. At least two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan, and thus may not form part of the Philippine continental shelf, according to the Japanese academic.

He supported however the Philippines position on the nine-dash lines arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS. He characterized the Philippines position against the Nine-Dash lines as “very strong”.

Japan is also engaged in its own territorial dispute with China over Senkaku Island.

Prof. Roque’s power point presentation at the conference may be found in http://www.harryroque.com

The EDCA: What’s in it for us?


Why should we allow ourselves to be attacked by the enemies of the US when the US has not given us the same assurance it had given Japan that it would come to our assistance against China?

Let’s compare exactly what President Barack Obama promised the Japanese and what he promised us.

“Our commitment to Japan’s security is absolute and article five [of the security treaty] covers all territories under Japan’s administration, including the Senkaku islands.” In this context, Obama promised that the US is duty-bound to come to Japan’s aid in the event of a conflict with China over a group of disputed islands in the East China Sea.

Compare this with what he declared regarding the Philippines: “Our commitment to defend the Philippines is ironclad. x x x We believe that nations and peoples have the right to live in security and peace and to have their sovereignty and territorial integrity respected.” Furthermore, the US President declared, “We believe that international law must be upheld, that freedom of navigation must be preserved and commerce must not be impeded. We believe that disputes must be resolved peacefully and not by intimidation or force.”

While both commitments appear to be firm, note that Obama did not mention the Spratlys or Panatag in his remarks about the Philippines. He however explicitly mentioned Senkaku Island, which is at the heart of the territorial dispute between China and Japan.

Why was this so?

It is because unlike Senkaku, which the US believes is part of the Japanese territory, the Americans have never believed that we have title over the Spratlys and the Scarborough shoal. In fact in 1933 when France first declared it had title to the Spratlys, only Japan, China and the United Kingdom protested the French claim. The Americans, who were then the colonial power in the Philippines, did not protest the French proclamation. Why? Because they thought that what they purchased from Spain through the Treaty of Paris were only the land territories contained in the map annexed to the Treaty, even if the Treaty does specify that what was bought was the “archipelago of the Philippines, the common meaning of which means islands and waters forming a unitary whole.

So if the Americans would not come to our assistance against China on the West Philippines Sea, why did we allow them further access to our military bases?

Under International Humanitarian Law, the governing law in times of armed conflict, all enemies of the US can target our territory since we allowed US servicemen and facilities to be in our territory. This means that in case of a shooting war, say over Crimea, or because of the on-going US war against terrorism, Russia and terrorist groups can now lawfully target our territory because US troops are present in our territory. With this very high cost arising from the EDCA, what’s in it for us?

Certainly it can’t be any monetary benefit since EDCA does not even require the Americans to pay us rent. Economic reality has made the maintenance of permanent US bases unaffordable for the Americans. Perhaps this is also why they would not pay rent even for their short-term presence in our territory.

Other than the misplaced gratification on the part this administration to be known as America’s lackey, I can’t think of any further benefit that we can derive from the EDCA.

Worse, the EDCA is unconstitutional. While the Aquino administration claimed that it is in furtherance of the Mutual Defense Treaty and the Visiting Forces Agreement, neither treaty is in fact applicable. The MDT is applicable only in case of an armed attack against our “metropolitan territory” or attacks against our “islands in the Pacific”. Since there is currently no armed attack, and since an attack on the Spratlys cannot trigger the application of the MDT, the EDCA cannot possibly be based on the MDT. Neither can it be anchored on the VFA because the presence of US troops pursuant to EDCA goes beyond “visiting”. It is in fact an implementation of a US Defense policy to do away with permanent bases. This being the case, EDCA had to be signed as a separate agreement from the MDT and the VFA. This is why our policy makers, through a 2/3 vote of all our senators, need to give their concurrence to the agreement . This is to ensure that it is pursuant to our national interest.

Perhaps, this administration does not want the senators involved because it knows that the EDCA does not promote our national interest and/or that the administration simply does not have the political support in the Senate, at least not the kind of support that it had when former Chief Justice Renato Corona was removed.

Let’s wise up. Only the Filipinos can stand up for the Philippine interest. Enough of this colonial mentality.

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WHATS IN IT FOR US? (CENTERLAW STATEMENT ON THE RECENTLY SIGNED 10 YEAR ENHANCED MIITARY AGREEMENT WITH THE US)


 

Ref. Prof. Harry Roque 09175398096

What’s in it for us? This was the question asked by UP College of Law Professor Harry Roque, Chair of the Center for International Law.

As Malacanang announced the signing of a 10 year enhanced military cooperation agreement with the United States, Centerlaw expresses its disappointment over the administration’s failure to advance the Philippine national interest in agreeing to what amounts to an increased rotational presence of US troops in the country.

“If the US will clearly state that the agreement will trigger Americas military assistance if China expels the Philippines form Ayungin shoal and any of the other disputed islands in the Spratly’s, then perhaps. It makes sense to allow the US further access to our military bases and facilities. But the reality is the United States has on the contrary, declared that it will not be dragged into a military confrontation with China over the use of force in the Spratly’s’, So why did we give them further access to our territory in the first place Roque asked

The Mutual Defense Pact of 1951 stipulates that the US will come to the assistance of the Philippines if its territory is attacked by a third state. The US though does not recognize the Philippine title to the Spratly’s and Panatag, insisting that its interest in the disputed area is only to maintain freedom of navigation.

Roque explained: “This is again a one sided agreement where the Philippines allowed itself to be attacked by an enemy of the US in case the latter figures in an armed conflict with a third state. This conflict, will however, not be because of the Spratlys because the US does not believe we have title to the disputed area. The American had their cake and ate it too”.

Roque, who is also Director of the UP Law Center’s Institute of International Legal Studies also expressed the view that the agreement requires Senate concurrence because of the express language of the Constitution that the stationing of foreign troops and bases shall only be through a Treaty duly concurred in by the senate. This, Roque explained, is to ensure that the people’s representatives can ensure that the agreement is pursuant to the national interest, which involves policy making and is hence a legislative power under our Constitution.

 

 

On Ayungin: Conquest No Longer Valid Means to AcquireTerritory


 

Even if China were to remove the Sierra Madre from Ayungin shoal and build yet another artificial island there, it will never acquire title over the area. The reason: International Law has long outlawed the acquisition of territory through conquest.

China also better rethink whether it should tow-awau a commissioned naval vessel. Derelicit as it may be, it is subject to full sovereign immunity and any attempt to tow it away from Ayungin may finally trigger the applicability of the US-Phil Mutual Defence Treaty. Thus far the US has said that the Treaty may not be triggered by fighting in the West Philippine Sea becauae it does not recognize Philippine title to the area. But an attack against a Philippine comissioned naval vessel may be sufficient for the purpose. The result: the West Philippine Sea, unless China backs off, may trigger the biggest armed conflict in the region since the Vietnam and Indo-China conflict.

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.

* * *

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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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!

VHONG NAVARRO IS STILL LUCKY


It took a celebrity to call attention to the inherent weakness of our criminal justice system. By now, only Filipinos in Mars have not heard of what happened to the comedian. Apparently, he visited a woman who speaks like Melanie Marquez. Then he was beaten black and blue, probably sexually humiliated, illegally detained and made to confess to a rape. He was brought to a police station in Taguig where remarkably, the police did not bother to inquire how he sustained his injuries and was not assisted to get medical assistance. Instead, the police blottered what the alleged woman victim claimed was an attempted or consummated rape. But because a rape is a personal crime and requires the consent of the woman to be initiated, no charge of rape was made. The woman declined to press charges against him.

Navarro was also brought to the station in the company of the men who admitted to have beaten him up allegedly in defense of the woman who cried rape. The neighbors  though in the condominium unit where the alleged rape and the torture occurred have spoken to the media and said  that they did not hear any strange occurrence form the unit on the date and time involved. Of course the determination of what actually happened will still have to be threshed out in a court of law. All the actors in this real life drama are wealthy and have retained the most expensive lawyers in town. But meanwhile, and as observers, we cannot help but question the actuation of the police when Vhong was brought to their station for blotter purposes. Why for instance, did they not inquire as the reason why he sustained serious physical injuries, which on the basis of media images, could not have been missed by the police? Why was he not brought immediately to a government doctor for mandatory forensic and medical examination? Why was the woman who cried rape not referred to the woman’s desk officer so she can be counseled on the issue of whether to press charges or not? Why was the woman herself not advised to have a medical examination to document the alleged rape? But worse, given that Vhong Navarro allegedly confessed to a rape, why was he, despite his sorry physical conviction, not asked if he was voluntarily giving his statement? Why did the police not take steps to ensure that the celebrity was not a victim of torture? Torture has long been considered amongst the most serious crimes committed not only in domestic jurisdictions, but also against humanity itself. Presidents, such as Pinochet, Milosevic, Marcos, and Senegal’s Habre have been prosecuted for it despite their pleas of sovereign immunity. In Pinochet, the UK House of Lords ruled that while sovereign immunity continues to be recognized under international law, torture is an international crime and can never be a sovereign act. Hence, presidents accused of committing them should not enjoy immunity from suit. Furthermore, under the Convention Against Torture, which has been rarified by the Philippines, police authorities are under a positive obligation to investigate where information exists to suggest that torture may have been committed. Certainly, the injuries sustained by Navarro, coupled with information that he was beaten by a group of persons albeit allegedly in defense of strangers and a confession, should have prompted authorities to conclude that they are probably dealing with a case of torture. Torture is defined under both international law and our domestic law as the “infliction of physical or mental pain” for the purpose, among others, of extracting a confession.  (The Philippines has two laws with contradictory definitions of torture. RA 9851 does not require the perpetrator to be a state agent. RA  9745 does) All the elements of the international crime appear to be present in the Vhong Navarro incident. Eventually, the question is: if one of the country’s most recognizable personalities could be a victim of torture with our police oblivious to this fact; what happened to ordinary people? One can imagine the fate of the faceless and faceless detainees in our police camps why have routinely been subjected to torture by the police themselves. Already, Amnesty International and the Commission of Human Rights have declared the existence of a torture chamber in a camp intended for the Special Forces of the PNP. What these organizations have uncovered is a long-standing practice of torturing detainees, those who still have to be found guilty of the commission of any crime, for sheer fun and pleasure of our men in uniform. With this kind of a culture amongst our law enforcers, should we still be surprised that Vhong did not get any form of police assistance at a time when he actually needed it? I can only commiserate with the plight of Vhong. But still, he should still consider himself lucky. He has the support of  his fans and his television station solidly behind him. For if he were an ordinary Filipino who was tortured, he would surely have become just another anonymous number in the statistics of the number Filipinos who have been tortured and denied any and all forms of remedies.

Access to electricity is a human right


I was one of those who called over the weekend for Congress to declare a state of national emergency and grant the President the power to temporarily take over the running of both the power generation and distribution industries. This was in response to Meralco’s statement that the temporary restraining order issued recently by the Supreme Court against what could have been Meralco’s biggest increase in electricity cost will lead to power disruptions and brownouts.

I made this call amid testimony made by officials from the Energy Regulatory Commission in the Senate that there is now evidence of “detectable collusion” among power generators. This, they said, was because power generators are also players in the spot market where Meralco purchases its electricity:  “gaming in the spot market and shutting down without justification are clear indications of collusion.”

In response thereto, the chairman of the committee, Senator Antonio Trillanes, concluded: “It’s clear there’s conflict of interest. It appears you shut down here and then you sell there; it’s higher there”.

In the first place, the business of power generation and distribution are imbued with the public interest. This is because these industries sell an indispensible commodity, electricity, to the general public. This is why these businesses are recipients of a franchise to operate. This is a privilege bestowed on the state only to those who are deserving—this is not a right. This is also why when we privatized these industries through the Epira law, Congress still granted the ERC the power to fix rates for electricity. Simply put, these businesses are subject to close regulation because their business will affect the welfare of the general public who are the end users of their commodity.

But my call for the temporary takeover was not only because these companies have breached their obligations to provide a convenience to the general public. On the contrary, I advocated their temporary takeover because in addition to being mere recipients of a state privilege—which can hence be revoked when the interest of the public requires this—what is involved here is a human right, which a State is duty bound to take progressive steps to realize.

Perhaps the confusion over access to electricity as a human right is because there is a dearth of human rights treaties that explicitly mention that it is a human right. In fact, there is only the Convention on the Elimination on Discrimination Against Women that provides for it as a right: “States should take steps to ensure that … women … shall enjoy adequate living conditions particularly in relation to … electricity”.

Despite this paucity of literal sources for the right to access to electricity, it is accepted in the field that this right is covered by Article 11 of the International Covenant on the Economic Social and Cultural Right (ICESCR), which imposes an obligation on State Parties to the Covenant to “recognize the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living conditions.”  Essentially, this obligation requires every nation to provide human habitation with all the other accompanying facilities in it such as electricity. As opined by a leading NGO: “Inadequate power supply is one issue that generates feelings of helplessness, sometimes anger or outright disgust. Experience has clearly shown that the absence of electricity constitutes one single major factor impeding the full achievement of these rights.”

Thanks to an exposure trip sponsored by the Bertha Foundation to India, I have since discovered that a Mumbai High Court was the first to apply this right to access to electricity in domestic law. In ruling that informal settlers have the right to access to electricity, the High Court ruled: “access to electricity should be construed as a human right. Denial of it would amount to violation of human rights… Lack of electricity supply is one of the determinative factors, affecting education, health and a cause of economy disparity, and consequently, inequality in society leading to poverty. Electricity supply is an aid to get information and knowledge. Children without electricity supply cannot even imagine competing with others.”

A concurring opinion to this decision said: “Lack of electricity denies people equal opportunities in the matter of education and consequently suitable employment, health, sanitation and other socio-economic rights. Right to electricity of a person… is integral to the achievement of socio-economic rights…It is the fundamental duty of the authorities to show compassion to those who are living in huts and tenements for long. When socio and economic justice is the mandate of the Constitution, it is a travesty of justice to deny electricity to the petitioners.”

Let’ s hope that our very own Supreme Court does not only find grave abuse and discretion in this latest Meralco increase. Let’s hope it also goes further and recognizes access to electricity as a human right.