By Adolfo Q. Paglinawan, August 17, 2017
Former Press Attache of the Philippine Embassy in Washington DC
Presently Anchor of Ang Maestro Atbp, the Unfinished Revolution at Radyo Pilipinas
Author of the book “A Problem for Every Solution” (July 2015), a Situationer on Territorial Disputes in the South China Seas, China’s Diplomatic Principles and the rich Filipino-Chinese shared heritage; and the Sellout of the Philippines claim to Sabah and the Rise of Bangsa Suluk.
Reforms at the Philippine News Agency may be due for various faux pas it has committed, but succumbing to clickbaiting by the yellow press to manipulate Xinhua’s commentary about the “ill-founded award”, as one of the causes for disciplinary action against news wire personalities would be unfortunate.
The PNA was not remiss in attributing the commentary to Xinhua. Please note the last line of the website post indicating “Xinhua”.
Besides, the arbitral tribunal’s award is indeed ill-founded, and to deny that in order to be politically correct to some domestic and international audiences, may be hazardous to our national interest and embarrassing to the world community.
I cannot be an apologist for a course of action that was doomed to failure from the very beginning.
And just as the nursery rhyme goes, “all the kings horses and all the kings men put humpty dumpty back together again”, the arbitral ruling will go down in history as one of the classic errors in international diplomacy, as I will expound later.
Humpty Dumpty was actually a cannon used in Colchester during the English Civil War. The Roundheads destroyed the tower holding the cannon causing Humpty to fall and break but the Royalists, the king’s men, couldn’t put it back together – too big a job and too little time!
In like manner, no amount of face saving can save former President BSAquino and Secretary Albert del Rosario from this foreign policy fiasco – too big a job and too little time.
Even the President Rodrigo Roa Duterte has found no wisdom in pursuing it. On the contrary, his shift to pursuing commonsensical bilateral talks with China has now reaped boundless benefits that has catapulted our economic development into a prosperous destination instead of a political imbroglio, and has put the Philippines in the company of world leaders taken seriously as game changers.
So lets analyze.
The operative word here is “arbitration”.
The essential elements of arbitration, as a method of conflict-resolution and in order to be legally binding are the following:
- It must involve two or more parties.
China never agreed to be involved in any arbitral proceedings. Truth of matter, China cannot enter into any arbitration, whether voluntary or compulsory. Why? Because it is against its domestic laws.
The United Nations Convention on the Laws of the Seas allows all its signatories to harmonize its domestic laws with the treaty, and where it is impossible to do so, to make declarations during the signing, upon ratification or any time thereafter.
China made such declarations, the first in 1996 upon ratifying the treaty mentioning its own domestic definitions of sovereignty and territory and second in 2006 about its incapability to submit itself to any form of conflict resolution other than direct bilateral negotiations with any and all parties that it will have a conflict with.
Please check this link: http://www.un.org/depts/los/convention_agreements/convention_declarations.htm
- The disputing parties must agree on the definition of the issues to be resolved.
Acting in good faith, China however inquired the issues to be covered, even while insisting the mode of engagement to be bilateral talks, not arbitration.
It sought clarification on whether the case would involve sovereignty.
The Philippines clarified that the matter in contention would be the UNCLOS provision on exclusive economic zone, but such opens up into a complication. The reason is simple, sovereignty rights proceed from sovereignty. The EEZ presents sovereignty rights over 200 nautical miles from the shores of a country that considers it sovereign territory or territorial baselines.
3.0 They must agree on and submit to the venue, or the third party who will render its decision resolving the issues.
China questioned why the case filing was done with the Permanent Court of Arbitration in the Hague, when any and all discussions will necessarily involve sovereignty issues. It has categorically asserted that the PCA cannot have any jurisdiction over matters of sovereignty.
It is not a body under the United Nations. It is a private arbitral venue. The nearest it is associated with the United Nations is that its facilities are housed in the same building as the International Court of Justice in The Hague, Netherlands, and it enjoys an observer status in the UN General Assembly.
Please check this link: http://globalnation.inquirer.net/141125/arbitral-court-not-a-un-agency
Failing in the three foregoing essential elements of arbitration, and showing China’s incapacity to participate, the rest are therefore moot and academic.
1.4 They must agree to submit themselves to this third party’s decision.
1.5. They must agree to jointly implement such a decision, or award.
1.6 They must agree to defray all expenses incurred for the services of the arbitration, including the honoraria of the jurors.
In view of this, pray tell me, how can the PCA ruling be bona fide?
Anything that is not bona fide, is ipso facto, ill-founded.
Contradicting its very definition, how can an arbitration occur with only one party, the petitioner, involved?
Can any debate, from which a wise and legally binding ruling is to be based, occur with only one party involved?
Likened to a boxing bout, isn’t it plainly ridiculous that a seeming default is being made when the only parties in the ring are only one protagonist and the referee?
Wouldn’t any decision arising from that exercise be at best anything but unilateral? This a crucial factor because following any private arbitration the enforcement of any decision is left to the collaboration of the disputing parties involved.
Isn’t it rather obvious that any flaw in the arbitral procedures indicating even a whiff of unilateralism, could reasonably alienate any cooperation from any participating party in the enforcement of any decision? Having said that, and afortiori or with more reason, what cooperation therefore could be expected of China who did not even participate?
Not only is it unilateral but a dangerous precedent to con China, or any country for that matter into a rule-based corner without due process, forced to compliance under lawless circumstances by an arbiter who made its decisions alone on the basis of what one party had submitted.
Not only does it present a dangerous precedent, but a monumental swindle. Isn’t this what China eventually asserted – that the arbitral ruling was a big gyp because when only the Philippines footed the bill of expenses, in effect the Philippines bought the award?
Worst of all, while the Philippines was busy “buying” an ill-founded arbitral decision by engaging in flawed procedures, China was equally busy altering the facts on the ground occupying, reclaiming and building structures on artificial islands.
Of course our bright lawyers have argued that artificial islands do not count under UNCLOS provisions, but tell that to Peoples Liberation Army that is ready with tooth and nail to defend China’s presence there.
While we fixed the arguments demolishing China’s “nine-dash line” principle before the world through rule-based arguments on UNCLOS, China fixed its nine-dash line de facto presence on the ground, in effect rendering moot and academic any subsequent enforcement of any ruling to the otherwise.
That is except by war, that is prohibited by our Constitution and by the rule of conduct in the region, now pending between China and the Association of Southeast Asia Nations (ASEAN).
Even the United States stood helpless in awe. The superpower painted itself in a useless corner when it announced a reiteration of its foreign policy not to meddle in any territorial disputes.
Of course, it did not do anything about Russia dismembering Crimea from Ukraine and annexing it into its federation of states, with what consistency would it now act to prevent China from expanding its sovereignty on the ground?
Afterall China is the fifth country to do so. The Philippines started it all in 1975 when it build an airstrip on the Spratly Island of Zhongye Dao that it now calls Pagasa Island. Taiwan Vietnam and even Malaysia has followed suit, with Vietnam becoming the most aggressive building in 48 locations.,
Worse, Hillary Clinton, its secretary of state, obscured the applicability of the Mutual Defense Treaty between the United States and the Philippines.
Neither can the United States invoke the United Nations Convention on the Laws of the Seas, a treaty to which it is not, repeat not, a signatory to.
PLAY OF MOTIVATIONS and implementation
To this day, the personalities who were behind to stage this mock trial has been engaging in the disinformation to cover up its malfeasance in that the PCA is “UN-based, UN-backed, UN-sanctioned” and goes even to the point of referring to it “ITLOS”, or the International Tribunal for the Laws of the Seas that is the compulsory venue of all hearings and settlements involving the UNCLOS.
The talking point is etched in the statements promuslgated by Albert del Rosario and his talking heads Associate Justice Antonio Carpio, multiple-losing congressional candidate Roilo Golez, Philippine Star columnists Jarius Bondoc and Alfredo Pascual, former solicitor-general Florin Hilbay, and the desks of The Philippines Daily Inquirer, ABS-CBN and Rappler, and for sometime in the writings of Richard Heydarian and Jay Batongbacal in the academe.
Given all these facts, don’t they point to conclude that BS Aquino III proxied for the United States in building a case against China not just to shame China before the world but paint it as a rogue state? Didn’t the Philippines find itself validating his signature to the Enhanced Defense Cooperation Agreement with the United States?
These questions are relevant in evaluating how the BS Aquino administration, under the tutelage of Albert del Rosario, a suspected American cditizen, based its determination of our national interest in the posturing that he allowed in our relations with China, in active disconnection with any bilateral talks.
Didn’t the former president allow himself to be used, in preparation for the American pivot scheduled for completion in 2020 involving the rebalancing of its military presence to the Asia-Pacific?
The vehicle used in our previous posturing against China is a novelty in international relations.
It is called lawfare, as distinguished from warfare, or its mild equivalent, low-intensity conflict.
This play becomes even more curious now that Ambassador Rigoberto Tiglao, now a Manila Times columnist, has claimed that the Aquino administration only proceeded with the filing of the PCA award to cover up the loss of Scarborough Shoal as a territory of the Philippines.
Please check the links:
This is not a mere opinion, but his inference based on the conclusion of the Center for Naval Analyses, an American federally funded research and development center serving the Department of the Navy and other defense agencies, whose analysts has pioneered the field of operations research and for more than 70 years, addressing issues that relate to military preparedness, operations evaluation, systems analysis, foreign affairs, strategic relationships, humanitarian operations, and logistics.
Please check this link: https://www.cna.org/CNA_files/PDF/IOP-2014-U-009109.pdf
Albert del Rosario and his talking heads are both engaged in face saving and in pursuing the vested interests that back them up. Even just a cursory perusal of the website of the Albert del Rosario Institute for Strategic Studies and its connection to the Washington DC-based Bower Group of Asia show that it is all about protecting western interests in our region.
Bona-fide journalists must take care they are not compromising our own national interest in favor of the motivations of those who were formerly our colonial masters.
Our national interest is the very bone and sinew of the independent foreign policy that President Rodrigo Roa Duterte has enshrined in his administration.
Anything less could be treason. #