Tag Archives: Philippines

The Philippines’ Right to Self-Determination and the South China Sea Question

ONE WAY to frame the Philippine claim in regard to areas in the South China Sea is from the right to self-determination for its own people as to the use of natural resources that are rightfully theirs. As held in the East Timor case, such right is peremptory and invokes erga omnes omnium (universal) obligations. This is from the point of view of state responsibility reinforcing erga omnes partes (treaty) obligations.

Thus, under the law on state responsibility, states not party to the dispute in question have an obligation to respect the territorial integrity and sovereign rights of the Philippines; they are legally bound to refuse to recognize the Chinese Nine-Dash Line as lawful, and to refrain from recognizing or entering into any agreements with China for the unlawful exploitation of natural resources in the Philippine EEZ and the Continental Shelf.

There is also the positive duty on the part of all states to cooperate to put a stop to such unlawful acts. Even non-parties to the UNCLOS are bound by such an obligation, it being (jus cogens) peremptory in nature.

The Philippines’ entitlement to the fruits of such a right has already been confirmed and upheld by the landmark judgment of the Permanent Court of Arbitration in the South China Sea Arbitration case.

 Lawyer Joel Butuyan, in his Philippine Daily Inquirer column and Justice Antonio Carpio in his public statements have already pointed to the possibility of suing third parties conniving with China in exploiting resources within Philippine EEZ and the Continental shelf within the UNCLOS regime. 

The law on state responsibility solidifies the Philippine claim against such a situation through the legal effects of the right to self-determination. This is general international law complementary to the Law of the Sea regime.

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On the Chinese arbitral snub and new building spree in the West Philippine Sea

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its new slew of building projects on disputed reefs in the area backed by naval presence are “a serious and belligerent violation of” the UN Convention on the Law of the Sea (UNCLOS, outspoken Filipino legal academic told recent 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 maritime and naval forces to ward off any opposition.

Roque said these recent Chinese actions are “ill-distinguished conquests of territory through the use of force,” which is prohibited by both the UNCLOS and the UN Charter.

“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.

Moreover, China has publicly declared that its actions are an implementation of a new defense maritime policy which envisions “Sea Denial Capability” in the West Philippine Sea by 2020 .

The Philippines is asking 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 www.harryroque.com

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International Law and its Postcolonial Discontents and Possibilities: Lessons from Magallona v. Ermita

 

ImageReactor’s comments  to the 10th MetroBank Professorial Chair Lecture, “Internationalization of Philippine Territory: The Question of Boundaries,”  by Dean Merlin M. Magallona, Chair, Philippine Judicial Academy International and Human Rights Law Department,  Nov, 13, 2013,  Malcolm Hall, UP College of Law, under the auspices of the  PHILJA and the Supreme Court of the Philippines (not for publication or citation without permission from the author)

By Atty. Romel Regalado Bagares

I begin my discussion of Dean Magallona’s lecture with a disclosure: I had the misfortune of having my very first recitation in my very first day in my very first class in my very first year in law school under him. It was a class in legal history and he was then just beginning to discuss with us his students the assigned readings for the day on Philippine customary law. As I heard him call my name for an explanation on the term “indigenous”, I stood from my front row seat with a start, and much to my own shock, proceeded to pace up and down the middle of the room as I explained to him what I understood by the term. The good Dean, face contorted by what could only be mock horror, blurted out at me: “Mr. Bagares – what are you doing? Are you trying to tell me that you can actually think?”

So friends, you will have to forgive me if what I will say today is colored in some way by my first recitation in law school.  I can only hope that at the end of this discussion, you will at least be convinced that I can actually think.

A second disclosure is that other than being a former student of the good Dean, I was also Petitioners’ co-counsel in the case of Magallona v. Executive Secretary,  which is the principal subject of his lecture. So please take my presentation with this further grain of salt.

And so, on to my comments to his lecture:

At the heart of Dean Magallona’s lecture is Magallona v. Ermita is now a judicial fait accompli; with this decision of the Supreme Court, ironically immortalized in the name of the very person who had been most assiduous in opposing it, the internationalization of Philippine territory – by which he meant other states acquiring some form of territorial rights in our own backyard – is complete.

The judicial confirmation that we have now been transformed into an archipelagic state in the contemplation of the UN Convention on the Law of the Sea(UNCLOS) could only have disastrous results to national sovereignty as understood in the Philippine Constitution.  With that, the colonial vestige that is the Treaty of Paris regime (which I am using as a shorthand), and under which the Philippines had previously staked its territorial rights as a state, is consigned to irrelevance.

It may well be one of life’s supreme ironies that Dean Magallona, a card-carrying nationalist international legal scholar, is also a staunch supporter of what we as a country has previously considered as our national territory’s international treaty limits under the over a century-old Treaty of Paris. As an international document, the Treaty of Paris carries with it all the hurts and pains of one country whose struggle to carve its own place in the community of nations was hijacked by colonizers.  But if I understood his view of international law correctly, it is precisely that history is what we make of what other people make of us, to borrow a phrase from one existentialist philosopher. One sees this most clearly in a year 2000 article he wrote for the venerable Philippine Law Journal, where he dealt with the history and morality of the (classical) international law of conquest and colonization as embodied in the Treaty of Paris.

Indeed, the Treaty of Paris carries with the many paradoxes of our existence as a postcolonial state.  As a text it invokes high emotions: the future of a country praised by the Indonesian novelist Pramoedya AnantaToer in his famous Buru Quartet for inaugurating nationalist impulses in our own corner of colonial Asia sold just like that for 20 million US dollars.  Yet for about 400 years – if we were to consider the continuities it presents between the Spanish to the American regime – it marked out what for us were the outer reaches of national territory unlike any other,  and its precise metes and bounds had been transformed into constitutional principle from American Commonwealth days, to the Martial Law era, and on to the Post-Marcos 1987 Constitution.

The TOP marks out a rectangular territorial sea fully encompassing the entirety of the Philippine archipelago; at some points, the territorial sea exceeds 12 nautical miles in breadth.  Perhaps, it bears noting that although the Philippines is not the only state which claims a territorial sea of more than 12 nautical miles, it is the only mid-ocean archipelago whose territorial claims had been specifically defined and delimited in latitude and longitude and embodied in international treaties and drawn in whole maps and charts.  In fact, as one author has observed, “the area of asserted jurisdiction is, in some places, 285 nautical miles from the nearest lands, thereby making it the most extravagant seaward claims.”

The Romantic Post-Colonial Argument

And so, to begin with, on the level of historical discourse, there’s not a lot going for the Treaty of Paris. As has been already noted, one argument against it is that it embodies one of the worst vestiges of our postcolonial heritage: accepting its international legal implications would mean accepting the rank immorality of the Spanish cession of the Philippines to the United States. Our future as a country was sold by one colonizer to another, violating our right to self-determination, which we have already declared on June 12, 1896 in Kawit, Cavite.

The UNCLOS, meanwhile, represents our sovereign and independent willing as a country and nation to fashion a future according to our own wishes. It marks our entry point into the modern international community in a decisive move to break away from the vestiges of an older international law where conquest was a legal means of acquiring territory.

The Treaty of Paris belonged to the Lotus era, where states did as they wished, for as long as there was no express prohibition in international law for what they did; the UNCLOS is one of those key international instruments that helped fashion an international community founded on communal values, and it is one in which we participated as a fully sovereign, newly-independent state.

Under this view, the Treaty of Paris represented an appeal to international law that may well be difficult if not impossible to successfully prosecute, because of its highly exceptional nature. But in a more complex contemporary reality, the best strategy is to adopt what is widely accepted and shared, as what can be made as a case for the UNCLOS, now with 166 member states out of a possible 193 member states of the United Nations, as of August 2013.

One connected strand of this version of the postcolonial narrative is the claim by some quarters today that it was the Philippines, along with Indonesia, that introduced the archipelagic doctrine during the deliberations at the UNCLOS conferences in 1958 and 1960.  It was the requirement of the very same archipelagic doctrine as embodied in the final document of the treaty to which we became compliant with the passage of RA 9522, the new Baselines Law assailed in Magallona v. Ermita. It is no doubt an appealing assertion of romantic history but it is unfortunately a grossly inaccurate one, its historiography either twisted or one founded on academic laxity.

It is true that the Philippines submitted proposals for a new archipelagic doctrine to the UNCLOS conferences. At the time, international law did not have a definite rule on the reaches of the territorial sea; the Philippines thus advanced the archipelago theory, which considered as a single unified whole outlying or mid-ocean archipelagos such as itself for marking out the reaches of its territorial waters by drawing baselines from the outermost points of the archipelago and the belt of marginal seas outside of such baselines. Further, consistent with its constitutional provisions on the National Territory under the 1935 Constitution and the Treaty of Paris, the Philippines asserted that waters landward of or within the baselines are internal waters.

The justification for this, according to the Philippines, is that the prevailing conceptions of the limits of the territorial sea had been based largely on the continental nature of a coastal State and did not consider the archipelagic nature of states like the Philippines.

The Philippines lost in its bid to have its archipelagic theory recognized in the UNCLOS conference. What prevailed is the view of an archipelagic state subject to the regime of the archipelagic waters now enshrined in Art  46 in relation to Article  47 (1) of Part IV of  the UNCLOS.

It is this regime in the UNCLOS that Dean Magallona argues, has eliminated wide swatches of  waters considered under the Treaty of Paris and the Philippine Constitution  to be Philippine internal waters.

But in good protester state’s fashion, following the 1958 and the 1960 UNCLOS conferences, the Philippines passed RA 3046 (later amended by RA 5446) using the outermost points of the Archipelago for the purpose of drawing straight archipelagic baselines.

RA 3046 (An Act to Define the Baselines of the Territorial Sea of the Philippines)referred to the Treaty of Paris in its preambular paragraphs, to wit:

WHEREAS, the Constitution of the Philippines describes the national territory as comprising all the territory ceded to the United States by theTreaty of Paris concluded between the United States and Spain on December 10, 1898, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on November 7, 1900, and in the treaty concluded between the United States and Great Britain on January 2, 1930, and all the territory over which the Government of the Philippine Islands exercised jurisdiction at the time of the adoption of the Constitution; (Emphasis supplied)

Our first baselines law further stated that all the waters within the limits defined in the Treaty of Paris have always been regarded as part of the territory of the Philippine Islands, to wit:

WHEREAS, all the waters within the limits set forth in the above-mentioned treaties have always been regarded as  part of the territory of the Philippine Islands;”

In Magallona v. Ermita however, our Supreme Court fell for the romantic postcolonial yarn that from the very beginning we had always been an archipelagic state and  had even originated the doctrine in the 1958 and the 1960 UNCLOS conferences; that, or it apparently confused the concept of an “Archipelago” with that of an “Archipelagic State”. It thus declared

In 1961, Congress passed Republic Act No. 3046 (RA 3046), demarcating the maritime baselines of the Philippines as an archipelagic State. xxx  (Emphasis supplied, internal citation omitted)

It bears stressing that as a legal concept, the Archipelagic State did not come into existence until it was adopted in Part IV of the UN Convention on the Law of the Sea (UNCLOS).  The Philippines considered itself an Archipelago –a unity of land and water – under its 1935, 1973 and 1987 Constitutions.  It did not become formally an Archipelagic State until, as a State Party to the UNCLOS, it applied the straight archipelagic baselines under Article 47(1), Part IV of the UNCLOS, such baselines being a feature of archipelagic States under the said Part IV of the UNCLOS.

To repeat, the Philippines is an Archipelago but it did not become an Archipelagic State until the enactment of Republic Act No. 9522 which implemented such baselines under the concept of Archipelagic State of the UNCLOS.

Art. 46, Part IV,  read with Art. 47 (1), Part IV, makes the distinction clear:

 

Use of terms

For the purposes of this Convention:

(a)”archipelagic State” means a State constituted wholly by one or more archipelagos and may include other islands;

(b) “archipelago” means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

That our Supreme Court conflated the two concepts is evident when it  quoted in Footnote 3 of the Ponencia the third “Whereas Clause” of RA 3046  as expressing the import of treating the Philippines as an archipelagic State:

“WHEREAS, all the waters around, between and connecting the various islands of the Philippine archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenance of the land territory, form part of the inland waters of the Philippines.”

Post-Colonial Prudence

It is a grievous mistake to consider this WHEREAS Clause as a way of “treating the Philippines as an archipelagic State,” because the internal waters as areas of sovereignty appurtenant to the land territory of the Philippines is precisely what is eliminated by the UNCLOS in its concept of Archipelagic State,replacing  internal waters with “archipelagic waters” for the objective right of innocent passage of all ships of all States, among other rights, as found in Art. 53 of the UNCLOS, among other provisions.

Thus we now have a legal quandary of a statute amending our constitution, albeit in international law – and this is what makes it worse – both have equal standing as binding unilateral acts  of a state.

Having said that, the egging question is whether we could have avoided the archipelagic state regime at all, despite our being a party to the UNCLOS, at least, for the time being?

The Petitioners in Magallona v. Ermita have argued in the affirmative.  It is not mandatory upon States Parties that are archipelagos to make transform themselves into archipelagic States.  This is borne out in the permissive language of Art. 47 (1), Part IV of the UNCLOS :

An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

In fact, the Supreme Court’s Ponencia in Magallona v. Executive Secretary itself acknowledged that the Petitioners’ reading of the UNCLOS is plausible, namely that– “based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522.” However, the High Court thought it was the province of Congress to say so and not theirs. Regrettably, the High Court passed off the chance to declare the new Baselines Law to have been passed and signed into law in grave abuse of discretion, at least with respect to its transformation of the Philippines into an Archipelagic state.

Which leads me to my second point about international law’s postcolonial discontents and possibilities: we’re all for human rights, jus cogens and all that, but in addition, we should also learn to use international law with postcolonial prudence.

That we have not done so is laid out in stark detail by the fact that states like Japan and Cuba – which  are archipelagos in their own right – have not declared themselves as “Archipelagic States” under Art. 47 (1), Part IV of the UNCLOS.

Instead, we made a “rush for the second place, “and simply ignored – in an exercise of “chronological snobbery” – what we have already achieved as a State, despite our tormented postcolonial heritage.

Contra textualist readings of the Treaty of Paris which do not treat the treaty limits found there as political boundaries but merely heuristic devices, we assert that we have made that Treaty ours and for our posterity by constitutional principle.

Dean Magallona does not mention it in his lecture but Petitioners have in fact argued that  under the doctrine of uti possedetis juris, the International Treaty Limits contained in the treaty have become frontiers protected by international law. The doctrine, accepted now as a general principle of international law by the International Court of Justice, served to freeze the title over territory at the time of independence, in effect producing a “photograph of the territory.”

In the territorial dispute between Burkina Faso and Mali, the International Court of Justice would affirm the principle in these words: “[t]here is no doubt that the obligation to respect pre-existing international frontiers in the event of State succession derives from a general rule of international law expressed in the formula of uti possidetis.” Read from a postcolonial perspective, the doctrine, originally applied with much initial resistance in settling decolonization issues in America and Africa, we should use to our territorial advantage. Indeed, as we have argued in Magallona v. Ermita, we have in fact constitutionalized the import of this doctrine by incorporating in the national territory provisions of practically all of our postcolonial constitutions the metes and bounds of the Treaty of Paris regime.

Dean Magallona has bewailed the schizophrenia in the stance of the Philippine delegation to the UNCLOS conferences: at the conferences, on the one hand, they consistently pursued “the dominion and sovereignty of the archipelagic state within the baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable unity of the land and water”; yet on the other hand, they still went on and signed the UNCLOS and had it ratified, though not without submitting a declaration to the UN stating that the Philippines becoming a state party to the treaty did not mean that it any manner impaired or prejudice “the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines.”

At least, today, with RA 9522 and Magallona v. Executive Secretary, we can safely say we now know where we exactly stand. Thank you

 

 

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China’s territorial claims and the future of international law in Asia

By Romel Regalado Bagares

While the Chinese Communist Party wrestled with the challenges of political transition at home (including sex scandals, corruption and murder in the highest echelons of power),  the Chinese government has been picking quarrels with its much smaller neighbours over maritime territory.

Tensions over territorial disputes across the Asian region have led observers to wonder whether a China with immense economic needs and superpower ambitions is actually able to follow rules-based maritime regime under the UN Convention of the Law of the Sea (UNCLOS) vital to regional cooperation and stability.

Law of the Sea in the disputes

The UNCLOS establishes the reach of a coastal state’s 12- nautical mile territorial sea, 24-nautical mile contiguous zone, 200-nautical mile Exclusive Economic Zone, 200-nautical mile Continental Shelf and its 150-nautical mile extension. It also provides rules for the exploitation of mineral and marine resources found in the sea and the seabed as well as for resolving conflicting maritime claims.

With Japan, China appears to have  recently come dangerously close to a shooting war in a  dispute over the five small uninhabited islands and three rocks of the Senkaku in the East China Sea.

Japan has accused a Chinese warship  of locking its fire-control radar on a Japanese destroyer in the high seas near the islands —definitely an escalation from previous confrontations  between Japan and another claimant-nation, Taiwan, where ships from both sides engaged one another in water cannon -duels.

Indeed, China, which treats Taiwan as an estranged province,  denies the Japanese charge.

Meanwhile, in the South China Sea, an area rich in oil, gas and fishing resources, China is locked in a long-standing dispute with several Southeast Asian nations over the Spratly group of islands, namely, Malaysia, Vietnam, Taiwan, the Philippines, Brunei and Indonesia.

China, a signatory to the UNCLOS,  justifies its territorial and maritime claims in the region through its Nine-Dash Line declaration.

Click here for the full essay as it appeared in the University of Exeter’s ThinkIR Blog.

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Taken for a ride, yet again

by Romel Regalado Bagares

A little more than a week ago, local and international news agencies were abuzz with reports about US Defense Secretary Leo Panetta’s announcement of a new “pivot” policy – a shift in American defense posture – one that would mean the redeployment of  60 percent of naval assets to the Asia-Pacific region by the year 2020.

Then as if on cue, Gen. Martin Dempsey, chairman of the U.S. Joint Chiefs of Staff, flew to Manila a few days after Panetta’s announcement for talks with his Philippine military counterparts.

At a press briefing in Manila, Dempsey said the shift would feature “three “‘mores” in US naval operations in the region —more attention, more engagement and more quality.

Foreign Affairs Secretary Alberto Del Rosario, reacting to Dempsey’s pronouncements, happily affirmed that the new American defense policy environment would mean Filipinos are to expect more port calls in the Philippines of American navy ships.

As Mr. Panetta was winding up his Asian trip,  President Benigno Aquino III met with President Obama  at the White House and the two leaders would subsequently announce greater cooperation in various areas, notably in common security concerns in the West Philippine Sea.

In addition, Obama promised increased military assistance to help the Philippines build a “credible minimum defense,” including a US$ 30 million grant this year – which is nearly double what it gave its former colony since the latter terminated the presence of US bases at Clark and Subic in 1991 – and a second decommissioned coastguard cutter for the Philippine Navy.

Despite loud denials from the Americans, the “pivot” is seen as an answer to the growing ambitions of China in the region, which threatens US access to international sea lanes crucial to its long-term economic and military interests.

Unprecedented tension between China and the Philippines over Scarborough Shoal in May this year seemed to have provided a perfect excuse for the US to reassert its presence in the region.

Indeed, US Secretary of State Hillary Clinton, testifying before the US Congress, warned against a  China increasingly asserting its dominance in the South China Sea with no qualms about violating the maritime jurisdictions of its neighbors in its quest for minerals and other raw materials its expanded economy needs.

No doubt, the Philippines occupies a strategic place in this major shift in US global defense posture.  Already, the country has proven to be an indispensable element in its global war against terror, with many parts of its archipelago providing  excellent training grounds for its newly-organized highly mobile, quick deployment units under a controversial  Visiting Forces Agreement (VFA).

Since May, a slew of US navy ships have called port in the Philippines, and following President Aquino’s US trip, more are expected to arrive, along with more US troops who will be fielded to the country on a rotation basis, purportedly for training and joint exercises with their Filipino counterparts.

We’ve been dubbed, since the Bush years, as a “major non-NATO ally” and three years ago –in the words of President Obama – as the “coordinator” for the US in the ASEAN region.

But do the Americans match their sweet words to the Philippines with equal deeds to help us develop “credible minimum defense”?

At first glance, it does seem like it: the Philippines is supposedly now the largest benefactor of the Pentagon’s Foreign Military Financing budget, receiving $11 million in 2005, $12 million in 2006,  $13 million in 2007 and $30 million this year.

However, we’re not even on the list of the top ten beneficiaries of US defense assistance three years after 9/11, according to data from the US Center for Public Integrity:  (figures have been rounded-off): Israel (US$9 billion), Egypt (US$6 billion), Pakistan (US$4.6 billion), Jordan (US$2.6 billion), Afghanistan (US$2.6 billion), Colombia (US$2 billion), Turkey (US$1.3 billion), Peru (US$446 million), Bolivia (US$320.6 million) and Poland (US$ 313 million).

The Asian country nearest to us who is on the list is Pakistan. Compared to what Pakistan is getting from the US, our share of foreign military financing is peanuts.

Over the last few years, the US has given more than $ 7 billion to Pakistan in direct assistance – that is, in funds to purchase weapons, supplies and equipment, purportedly to help it fight the Taliban. With all that money, it is a wonder how Osama Bin Laden was able to elude Pakistani intelligence, as he was able to live a comfortable existence in a walled off mansion in Abbottabad for many years right under their noses.

Compare that to American military aid to the Philippines, which comes in the form of financing; that is, no money actually reaches Philippine coffers. Funds are directly paid to American firms contracted by the US government to supply mostly refurbished equipment to the Philippine military, like Vietnam-war era helicopters, trucks and patrol boats. Recently, the US has agreed to hand down to us two decommissioned Coastguard cutter but stripped of most of its armaments. The first delivery, which the Philippine Navy renamed BRP Gregorio Del Pilar, was the same vessel that chanced  upon Chinese fishing vessels poaching mostly endangered marine species at Panatag Shoal.

Philippine Navy top brass, on the eve of President Aquino’s US visit, pleaded with US authorities to deliver to us the second Coastguard cutter without removing its armaments.  But the plea from a major non-NATO ally and coordinator for the ASEAN fell on their deaf ears, even if it only concerns two 40-year old ships that have already seen better days.

So, what credible minimum defense capability for the Philippines is the United States talking about? We’ve gotten a raw deal before and we’re getting more of the same treatment from the Americans, who obviously want to keep us in relationship of dependency so that we will always be at their beck and call.

It is no wonder that despite years of American military aid to the Philippines, our armed forces remains the most poorly-equipped in the Asian region. Barya-barya lang at mga pinaglumaan na ang bigay nila sa atin. After all these years, we’re still being treated by the US as its toady and not as its equal.

On the same week Mr. Panetta announced a “pivot” in US defense policy, CNN broke the news that the US government
has decided to cut aid to a Pakistani version of “Sesame Street” because of charges of corruption. The price tag: US$ 20 million.

The Americans like us very much because they get so much from us for so little in return.

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Resolving the Scarborough Shoal Dispute: “Thick” or “Thin”?

By Romel Regalado Bagares, Esq.

The recent incident at the Scarborough shoal is no doubt the most brazen move thus far by the region’s certified Biggest Bully – China – in the escalating history of its altercation with the Philippines over territory.

From reports, it appears that the Philippine Navy’s BRP Gregorio Del Pilar had discovered eight Chinese fishing vessels poaching large quantities of endangered marine species, including live sharks, at the shoal. The resulting standoff – and our seeming inability to act decisively on a critical national security concern –further showed the vulnerabilities of the Philippines in a dispute over territory with an emergent world economic and military power.

But there are two ways of looking at the territorial dispute, which I will call the “thick” and the “thin” approaches. Our new baselines law, Republic Act 9522,  classifies Scarborough shoal as a regime of islands under Art. 121 of the Law of the Sea Convention (LOSC). Under LOSC, a regime of islands has its own territorial sea, Exclusive Economic Zone (EEZ) and Continental Shelf.

Obviously,  RA 9522 assumes that the shoal is part of Philippine territory in the fullest sense of the term. From that perspective, the reckoning point therefore is the shoal as an island grafted into Philippine territory.

It is what I call the thick approach, precisely because the claim to be made from it is full sovereignty as understood in the national territory clause of the Constitution. Since it is a regime of islands, a case can well be made that what the Chinese fishing vessels did was violate its territorial sea, given the facts available to us. Given the shoal’s classification under RA 9522,  it would appear that the Chinese had violated its territorial sea, which extends from its coast up to a distance of 12 nautical miles.

The thin approach is what the Department of Foreign Affairs (DFA) has been saying all this time: that the Chinese violated our EEZ, reckoned from the base points off the coast of Zambales, as from those points, the shoal, which is about 137 nautical miles away from Palauig town in the province, no doubt falls within the said maritime regime. This approach is so-called, because under the EEZ, the Philippines has “sovereign rights” to the marine resources found in the area, to the exclusion of all the others.

The regime of sovereign rights is not the same as full sovereignty. It is limited only to the economic exploitation of resources found in the shoal, subject to certain conditions, and cannot be equated with the full exercise of sovereignty control of every piece and bit of territory there in the concept of an owner. It is otherwise known as “protective jurisdiction.”

But either way – thick or thin – we may now have a way to take the Chinese to compulsory arbitration with a final and binding judgment, which they have not been keen on doing.

The thin approach does not even require the Philippines to assert that the shoal is a regime of islands. The shoal may well be no more than rocks or coral reefs but even China recognizes that the area falls within the Philippine EEZ, except that they maintain that the Philippine claim to sovereign rights falls in the face of China’s mainly historic title to the shoal (which claims are highly doubtful, from the point of view of contemporary international law, which generally dismisses historic title as ineffective).

What the DFA doesn’t seem to realize, Prof. Harry Roque notes, is that the issues surrounding the shoal are different from those in the Spratlys.

Unlike issues involving the exercise of sovereign rights, which are subject to the compulsory jurisdiction of the International Tribunal on the Law of the Sea (ITLOS), conflicting claims to both maritime and land territory – as what obtains in the Spratlys –  will require the consent of China to litigate.

“The point is,” says Prof. Roque,   “with the incursion of China in an undisputed maritime area under the sovereign right of the Philippines, we could avail of mandatory and compulsory jurisdiction of the UN’s ITLOS, which we could not otherwise resort to in the case of the Spratlys.”

The general principle in the LOSC is that any dispute over the interpretation or application of a provision of the treaty is subject to the system of compulsory  binding dispute settlement. Thus, by becoming a party to it, State Parties consent to disputes being referred to adjudication or arbitration.

Not many people know that China is also party to the Law of the Sea Convention, except that on August 25, 2006,  it has invoked  the so-called art. 298 exception, which allows it to opt out of compulsory arbitration in cases of  disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction  as well as sea boundary delimitations, or those involving historic bays or titles.

However, China, under this declaration, cannot say that by virtue of the art. 298 exception, it cannot be dragged into an arbitration because the events at Scarborough shoal concerns a dispute on law enforcement activities in regard to the exercise of sovereign rights. This is because it has already conceded that the shoal falls within the Philippine EEZ and is well beyond its own EEZ.

Under art. 297 (3) of the LOSC,  it is the coastal state, in this case, the Philippines, which has the option  “ to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.” That right does not belong to the offending state, China.

Indeed, in its declaration on June 7, 1996 – the date it ratified the LOSC – China announced that in accordance with the Law of the Sea, “the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.” The shoal is already beyond the scope of this declaration because it has already conceded that it lies within our EEZ.

According to Prof. Roque, this may well be our strongest suit, since the issue involved is cut-and-dried: did China, which has accepted the shoal in question as part of the Philippine EEZ, violate the Philippines’ sovereign rights over the waters surrounding the shoal?

Meanwhile, the “thick” approach — which is also favored by some Filipino Law of the Sea experts like my  law school contemporary, Dr. Lowell Bautista, a research fellow at the Australian Centre for Ocean Resources and Security —  is anchored on the classification of the shoal as a regime of islands.  The Philippines may take China to a compulsory arbitration with the ITLOS under Art. 288  of the LOSC on a question of interpretation: given the physical configuration of the shoal, is it  in fact an island?

The answer to the question will open the door for further clarification on which rights the Philippines would be entitled to claim over the area. One advantage to this approach is that even the Chinese themselves consider it an island, as they in fact, call it the Huangyan Island. So they are already bound by that characterization, and would not be able to effectively dispute an affirmative answer to the question by the international tribunal.

Note that resorting to the thin approach does not necessarily mean waiving our claims to the shoal as an island squarely belonging to the Philippines as its owner. The two approaches are not mutually exclusive.

In either case, we can immediately sue China before the ITLOS, with the added incentive that the international tribunal has the power to issue provisional remedies, such as prohibiting any of the parties from doing something that would disturb the status quo while the case is being heard.

But the obvious limitation to the thick approach is that resolving the question is only the first step;  it does not really address the question of ownership of the island. For that, we will need more than the Law of the Sea; following the ruling of arbitrator Mr. Max Huber in the landmark Las Palmas arbitration, we will have to resort to general international law requirements for establishing ownership, in particular the various indicia of “effective occupation”, such as enforcement of fishery laws, customs and taxation management, attachment to local government control and the like.

Of course, the next question is, given the bullying tactics of China, how do we establish effective occupation over the shoal – is the P-Noy administration up to the challenge? Or is it even willing to do what past administrations have failed to do:  sue China before the ITLOS on even just a question of sovereign rights over the shoal?

*(4/15/12) the author is Executive Director of the Center for International Law, an NGO dedicated to the promotion of the Rule of Law in the Philippines and Asia through binding international legal norms, and a professorial lecturer in public and private international law at the Lyceum Philippines University College of Law.

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Filed under International Court of Justice, International Law, Scarborough Shoal, UNCLOS