ITLOS and the Scarborough Shoal


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

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

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

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

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

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

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

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

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

Published in: on April 19, 2012 at 7:00 am  Comments (14)  
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Aquino and international law


Aquino and international law.

Published in: on April 16, 2012 at 1:21 am  Leave a Comment  
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Freedoms and the Spratlys


I’m still abroad as I write this column. I am currently in Bangkok, Thailand doing a training on freedom of expression for Burmese, Laotian, and Cambodian lawyers. It is a bit of an irony that while I am training members of civil society in Southeast Asia on the value of this freedom in creating a free marketplace of ideas, I had also just come from China where I had first hand experience on the Chinese “great wall”, that is, a successful effort on the part of authorities in Beijing to insulate their people from information derived from sources such as Facebook, Twitter, and even Skype!
It is amazing that while the world has already acknowledged the value of ideas in formulating solutions to problems in modern-day societies, some states, including China, Burma, Laos, Cambodia and Vietnam have still been successful at curtailing the full development of the marketplace of ideas. The Internet used to defy these efforts as in fact; its developers envisioned it to be literally a superhighway of information. But China is evidence that even this superhighway may be interfered with. Aside from successfully filtering these hugely popular social networking sites, it has also successfully filtered sites that authorities may have felt were ”unfriendly”. Unfortunately, I found out that one such unfriendly site is my own blog, which I could not access when I was in Beijing. I could only surmise that my entries on the West Philippine Sea, my many entries on freedom of expression, and perhaps pieces I have written on anomalous Chinese contracts such as NBN-ZTE and Northrail may have something to do with the fact that 300 million Chinese Internet users, equivalent to the population of the United States, could not access my blog. How I wish there could be an appeals mechanism for banned blogs in societies such as China as I cannot help but speculate on how much more hits my blog would have had it not been banned in China.

It was also interesting to attend a conference in China on international law that featured one, and only one panelist on the Spratlys islands dispute. Prof. Robert Beckman, Director of the Center of International Law of the National University of Singapore presented the thesis that there has been a remarkable shift in the position of some of the claimant countries to the Spratlys as a result of recent in initiatives from Vietnam and the Philippines redefining their baselines on the basis of base points and baselines drawn pursuant to the provisions of the United Nations Convention on the Law of the Seas. While I have been firm in my position that it would not be in the Philippines’ national interest to utilize these optional base points and baselines — since it would mean the loss of tremendous internal waters and territorial waters subject to full Philippine sovereignty in favor of an Exclusive Economic Zone where we could only exercise the exclusive right to explore and exploit resources found thereat —Beckman was rather convincing when he argued that at least China is now alone as a renegade in the region as far as the UNCLOS is concerned. Where I differed profoundly from him is his assertion that the Treaty of Paris could not be used as basis for claiming Philippine territorial seas since the Americans only intended it as delimitation on land boundaries. This is the classic American position belied by the language of the Treaty of Paris itself when it said that the cession involves an “archipelago”. My own son’s grade three textbook on social studies defines an archipelago as a “group of islands surrounded by water”. How could the Americans then claim that what they acquired from Spain was only land territory when what it allegedly purchased from Spain was an “archipelago?

It was even more interesting to see how Chinese international lawyers reacted to the issue. One senior academic took the floor after Beckman discussed his paper and was shaking out of anger at the thought that any one would question Chinese sovereignty over the Nansha islands. One female academic from Shanghai did clarify that the nine dash lines that China had made public only in 2009 was not a delimitation line. This was a source of relief since in the absence of clarification from China, the said lines could be read as delimiting the scope and breadth of Chinese territorial sea in the disputed South China Sea, thereby depriving us even of a 12-nautical-mile territorial sea in the West Philippine Sea. Unfortunately, though, despite the opinion of the academic from China, we still do not know for sure what China is claiming pursuant to these lines.

Back to Bangkok, meanwhile, it is inspiring to know that while despotic regimes thrive in many parts of Southeast Asia, more and more individuals have opted to take an uncompromising stand in favor of democracy and freedom. We have lawyers from Laos, Burma, and Cambodia expressing the view that human rights are inalienable. Many of them in fact are in search of international remedies to address the failure of their governments to protect and promote these rights, most specially that of freedom of expression. And yes, it is a source of pride that through the Center for International Law, we have pioneered in using these international mechanisms to promote human rights in the Philippines and the rest of Southeast Asia. Given the passion and perseverance exhibited by the participants in these training sessions on freedom of expression, I make the brave prediction that despots in the region are now in peril and that their days are numbered.

Published in: on September 2, 2011 at 11:29 am  Comments (4)  
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Summit on KIG


Summit on Kalayaan islands

The Institute of International Legal Studies of the University of the Philippines Law Center held last Monday and Tuesday a National Summit on the Kalayaan Group of Islands and the West Philippine Sea. The summit sought to define the national interest in the disputed islands, as well as to produce a road map on how to best assert these interests.

One hundred seventy-five stakeholders attended the summit. There were representatives from different government agencies including  the  Departments of Foreign Affairs, National Defense, Interior and Local Government, Environment and Natural Resources, Transportation and Communications and the National Security Council. Also in attendance was the very colorful mayor of the municipality of Kalayaan, Mayor Eugenio Bito-onon Jr and Rep. Dennis Socrates of the second district of Palawan.

 

The Kalayaan Island Group and the West Philippine Sea first became controversial when France laid claim to them in 1933. The governments of Japan, the United Kingdom, and China protested this. According to France, the islands were first discovered by its protectorate, Vietnam, and were administered by a state trading company, “Dio Hwang Sas” as early as 1802. China’s claim, similarly, was on an alleged historic title beginning with its discovery on 200 BC, during Emperor Wu’s reign. It argues that the Chinese first occupied the islands as early as 618, and that the disputed islands have been charted and reflected in maps as belonging to China. It claimed that both France, and its successor Vietnam, are estopped from making claim to the islands since both countries have recognized China’s title to them at various points in history, the latest of which was a statement attributed to  Premier Phan Van Dong in an note to Zhou Enlai.

 

Japanese forces briefly occupied the islands during World War II. At the end of the war, Russia suggested that Japan be made to relinquish its title to the islands in favor of China. Forty-nine out of 52 countries attending the San Francisco Peace Conference protested this. The Philippines, in the same conference, asked for authority to administer the islands on behalf of the allied forces due to its security significance to the country. This was denied and consequently, Japan was made to relinquish its title to them without specifying to which country in particular.

 

The Philippine title to the islands is based on discovery and effective occupation of islands which are separate and distinct from those occupied by Japan during the war and from those claimed by both China and Vietnam. Merchant school owner Thomas Cloma discovered these islands in the early 1950s. At the time of their discovery, they have not been previously reflected in any map. Since then, the islands were by law made part of the Municipality of Kalayaan, appended to the Province of Palawan, made part of our continental shelf and our Exclusive Economic Zone, and subject to the grant of concessions to explore the area specially for oil. Since we are closest to the islands, the Philippines also enjoys the prima facie presumption of effective occupation of the islands, and may argue that as part of the Philippine archipelago, it has been under its constructive occupation.

 

The summit highlighted areas of disagreement between academics and the Foreign Affairs Department . For instance, the DFA supported the passage of the Philippine Archipelagic Baselines Law that Dean Merlin Magallona and I impugned as unconstitutional before the Supreme Court. This law appended the KIG to the main Philippine archipelago under the regime of islands. We argued that this weakened our claim to KIG because this regime is utilized only for offshore islands. By resorting to this, we have forfeited what should have been our sole entitlement as the lone archipelagic claimant, that is, to append the islands as part of our archipelago.

 

The DFA position, though, is the law had to be passed since compliance with the United Nations Convention on the  Law of the Seas would give us “moral ascendancy”  over China. I’m not sure though if such really matters in international relations since China, meanwhile, has recently utilized  its  “nine-dash lines” to append the entirety of the South China Sea as part of its territorial waters—in utter disregard of UNCLOS. Moreover, while compliance with the convention may lead to a favorable ruling from international tribunals that may be tasked to adjudicate on the matter, China has said that it would not submit issues involving its territory to any such tribunals. It appears that our “boy scout” mentality maybe for naught.

 

This notwithstanding, the overwhelming consensus in the summit was to support  the President on his most recent pronouncement on the issue. The current policy is that “what is ours belongs to us. What is disputed may be shared.” This entails an identification of areas, which are not disputed, and the possibility of joint use for those that are in dispute. This is a pragmatic policy since the Philippines should  immediately reap the harvest for areas not in dispute and meanwhile, allow us also to benefit from the wealth in areas that remain controversial. Of course, the reality is that China, as a superpower, will  ultimately determine if it will allow us to share the resources from the disputed areas. Hopefully though, President Benigno Aquino III’s current position will at least provide the beginnings of a peaceful resolution of the current dispute.

 

The summit is only the second activity of the Institute since I became its director for the second time this July. I was  also head of the Institute—created because  of the need to focus scholarly activity into alternative approaches or strategies in dealing with Philippine foreign policy questions—from 2004 to 2008. The IILS was established to undertake research and extension functions in international law, comparative law, and international relations, specifically in areas that affect the Philippine interests in the global arena.

 

This Friday at 10 a.m., at the Malcolm Hall of the UP College of Law, the Institute will feature Anwar Ibrahim who will talk on “Rizal, Ninoy and Asian Leadership”. Come early to have a seat.

Published in: on August 4, 2011 at 9:54 am  Comments (1)  
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What cost reprieve?


FOREIGN relations is not for the weak. In promoting their national interest, states employ their best poker players as diplomats to bluff, cajole, and threaten if need be. It is not for the faint hearted. Because in asserting what is best for a country, diplomats will employ ruse, lies and gimmickry to achieve what is best for their sending state.
And yes, because foreign policy is a nasty game played by diplomats everyday, states must have a clear view of what comprises its national interest so that in the course of this intricate game of deceit known as diplomacy, diplomats would have a clear picture of what should be done to suit their national interests.

When news came out that Vice-President Jejomar Binay earned a temporary stay on the execution of the three Filipino drug mules in China, the question that came to my mind was: at what cost?

The official line, of course, was that it cost us nothing. Had it not been for my new found respect for the Marines that joined Sen. Sonny Trillanes in standing up to the evil one, I would have quickly said: tell that to the Marines.

In truth and in fact, no country, especially China, would grant a diplomatic concession without a price. What does seem more likely is that there was a cost, but our leaders are unwilling to tell us exactly how much it was.

The possibilities on how much it cost us to procure the stay are endless. There is the Northrail contract which, according to Sen. Franklin Drilon, should make it to the Guinness Book of World Records for being “the most expensive railway project on earth.” With a project cost of almost a billion dollars, it is almost as expensive as the Shanghai magnetic bullet trains, with the difference being that while the Shanghai train is levitating and runs at 300 kilometers per hour, our Northrail runs on diesel at 60 kilometers an hour. And were not even sure, in the absence of a detailed bill of materials, if it is brand new or junk. It could even be the precursor of those ultra modern Shanghai bullet trains.

Despite the change in government, and despite the fact that Northrail has always been a banner issue of the Liberal Party, I am surprised, to say the least, that this administration has not put an end to the Northrail scam. Surely, this could be one possible cost of the stay?

Then there is the Joint Maritime Seismic Exploration Agreement that had recently expired. Why the past dispensation entered into a joint exploration of our mineral resources with a foreign county despite an expressed constitutional provision reserving such exploration to Filipinos is just beyond comprehension. But with Chinas insatiable demand for oil, and the proven oil and natural gas reserves located in the South China Sea, the renewal of this agreement could yet be a convincing cost for the stay.

Forget oil for one moment. What about gold? One of the documents that I made public as evidence of GMAs many sins was one signed by Peter Favila granting ZTE Corp. of China the botched National Broadband Network deal plus the famed Diwalwal and North Davao mining concessions.

Initially, the likes of former Environment Secretary Lito Atienza denied the existence of that contract. Favila would later admit the physical existence of the contract but insisted that the Memorandum of Agreement was far from a perfected contract. Legalese defense notwithstanding, the MOA clearly granted ZTE the right to extract gold from Diwalwal and North Davao.

The latest from the grapevine is despite PNoys new administration, this grant to ZTE may still be may be honored indirectly: bid out Diwalwal and North Davao to a dummy Filipino corporation which in turn, will turn over the contract to ZTE. Lots and lots of gold for three stays of execution? Why not?

Then there are the disputed Spratlys islands in the South China Sea. With former solicitor general Estelito Mendoza advising the Philippine Senate in the last Congress that adopting the disputed Spratlys Islands as part of our archipelago might trigger a military confrontation with China, obviously one that we cannot win, it is still possible that the cost of the reprieve may be some of the disputed islands. After all, didn’t China simply shoo off our soldiers from Mischief Shoal in order to lay claim to it? So why not islands for reprieve?

The point is that policy makers should realize that nothing comes for free in the field of foreign relations. While saving Filipino lives, even those found guilty of large scale drug trafficking, is important for a Catholic country like ours, policy decisions such as winning a reprieve for three Filipinos from the death penalty, should be made with a clear understanding of what it will cost the country.

In the absence of a holistic picture of what our national interest are in relations to a powerful country like China, the possibility of an “uneven” deal becomes a very real possibility. And lest we forget, they were not apprehended with inconsequential amount of drugs, they were caught with a whole lot of them.

Perhaps, it is high time that we realize that unlike our legal system, some countries do enforce their laws as a matter of course. Dura lex, sed lex. The law may be harsh, but such is the law.

Published in: on February 24, 2011 at 2:46 pm  Comments (4)  
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