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)

Dangerous Seas


 

The collision between a Chinese submarine and an underwater radar being towed by a U.S. military ship in waters off the coast of Subic underlies the security threats to the Philippines caused by the recent passage of the new baselines law. This recent incident shows how the Philippine waters could become a danger to itself.

 

On June 14, a Chinese submarine bumped against the sonar equipment of the USS John S. McCain, a guided missile destroyer.  The sonar is attached to the McCain by a long cable, and is used to remotely detect objects underwater.

 

Our 2009 Baselines Law is largely based on the United Nations Convention on the Law of the Seas. Before the law was passed, the waters in and around the islands of our archipelago are “internal waters.” Under this doctrine, foreign vessels, including submarines and warships, can only “sail through” our internal waters after getting the Philippine government’s express consent. Under customary international law, these vessels are also allowed to sail through our “territorial seas,” or the waters within 12 nautical miles from our baselines.

 

Under the new baselines laws, the waters in and around our islands are now classified as “archipelagic waters.” Under this doctrine, submarines and warships not only have the right to innocent passage, but aircrafts may also exercise the right to overflight, with our without our consent. This is precisely why concerned citizens led by Prof. Merlin Magallona of the University of the Philippines College of Law challenged the constitutionality of the said law before the Supreme Court.

 

Philippine and American authorities insist that the collision happened in international waters, despite wire reports that the collision happened near Subic, a former American naval facility. Philippine authorities understandably insist upon this as the incident is a realization of one of the security dangers already earlier raised by concerned citizens before our court. At the very least, the collision inspires fresh debates over security concerns that have become real.

 

To begin with, while the UNCLOS grants submarines and warships the right to exercise innocent passage through territorial seas and archipelagic waters, this must be done in the context of a continuous and uninterrupted journey requiring passage through these waters. It is a long stretch to justify as innocent passage the presence of an American destroyer towing a sonar array in close proximity to a Chinese submarine near a former US naval base. It is also important to point out that the waters off Subic are not used as established sea lanes – the South China Sea already serves that purpose.

 

Philippine Navy officials have admitted they did not receive any request from either the Chinese or the Americans to allow their respective vessels passage through our waters. Apparently, the Philippine Navy is ready to conclude that in the absence of such a request, the collision could only have happened in international waters. The problem with this explanation is that it accords the superpowers too much benefit of the doubt. The more plausible scenario is that the two military vessels were shadowing each other. Why so near the Philippines? And even if we grant that the collision happened outside Philippine territories, why is such shadowing of each other happening in waters that are characterized by conflicting territorial claims?

 

It is very revealing that the two military vessels could afford to be nonchalant in their brazenness off the coast of Subic: the Arroyo government is subservient to both Beijing and Washington DC.

 

The Philippine Constitution provides that the Philippines is a nuclear free zone. How does the government now reconcile this provision with the new baselines law that effectively allows all vessels, including those carrying nuclear materials, access to almost the entirely of our waters? In the event of radioactive contamination resulting from a collision similar to this recent one, who will pay for the cost of clean up?

 

Finally, it is worrisome that Philippine officials habitually seek refuge from the doctrine of classified information on ground national security in refusing to divulge all facts relating to this collision is particularly worrisome. The fact that our waters could already be used by superpowers as theaters for war certainly makes this matter one imbued with intense public interest. And yet, the refusal of all powers concerned to even acknowledge where exactly the collision occurred violates the right of the Filipino people to information on matters involving public interest. This is perhaps why the incident is living proof that our waters, particularly with the Baselines law,  have indeed become dangerous seas.