By Adolfo Quizon Paglinawan, Solidarity for Sovereignty
Part Two: Sifting Empty Rhetoric vs True Strengths, East vs West
Albert and Gretchen del Rosario became close friends when he served as our ambassador to Washington DC because my wife continued to do volunteer work for the Embassy, even after my earlier assignment as diplomat to the United States for seven years.
When I asked the Ambassador to sponsor Gawad Kalinga, he did not butt an eyelash and immediately pulled out his checkbook and wrote a personal note good for one village. We built that village in Barangay Tatalon, near Araneta Avenue between Quezon Boulevard and Espana Extension in Quezon City.
Our politics however would differ when became Secretary of Foreign Affairs. Let me start my story with this fake news from Rappler.
Albert did not take China to court.
As Secretary of Foreign Affairs, he took China to a voluntary arbitration, the Permanent Court of Arbitration (PCA) is not a court, it is not even permanent. It is just a registry for private arbitration.
Watch this video:
Former International Court of Justice judge Abdul Gadire Koroma explains the Peace Palace in The Hague which was built in 1913 from a donation made by steel magnate and philanthropist, Andrew Carnegie, merely houses the PCA which was earlier established in 1899, and the ICJ, the principal judicial organ of the United Nations. The ICJ has had its seat in the Peace Palace in The Hague since 1946.
Two to tango
It takes at least two parties to engage in private arbitration. China did not participate in the proceedings.
It was unilateral case. Our taxpayers ended up chalking up more than a billion pesos to file and finance the petition. Only the Philippines shouldered the expenses incurred for the services and facilities of the Peace Palace in The Hague, and only the Philippines picked the set of jurors who heard and decided the case, and paid their honoraria.
Columnist Ranhilio Calangan Aquino, a juris doctor, objected to my use of the term “kangaroo” when referring to the PCA award of July 2016. But from the widest stretch of my imagination, the most I would settle is a pyrrhic victory.
Wikipedia defines a pyrrhic victory (/ˈpɪrɪk/ (listen) PIRR-ik) as a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat. Such a victory negates any true sense of achievement or damages long-term progress.
Watch this video: https://www.youtube.com/watch?v=sM3XR_nL2D4
Former Ambassador Rosario Manalo, stepmother of present Secretary of Foreign Affairs Enrique Manalo, and an established Philippine senior expert in international law and relations, said the “award” was non-binding.
Why? Because in a private arbitration, the enforcement of the decision belongs to the parties participating, and because we are the sole party I cannot see how anyway we can enforce its ruling. No matter how we romanticize it, we cannot even war with China because war is malum prohibitum in our Constitution as a matter of public policy.
When asked about the Arbitral Tribunal’s case’s ruling, Stephane Dujarric, spokesman for UN Secretary-General Ban Ki-moon said “The UN doesn’t have a position on the legal and procedural merits” of the South China Sea arbitration case.
Dujarric added: “Well, I think, as I said, the Secretary‑General has consistently called on all parties to resolve their dispute in a peaceful and amicable way through dialogue. I think while the dialogue continues, it’s important for States to exercise restraint on the conduct and contentious activities in the South China Sea.
“He has consistently expressed his hope that the continued consultations on a Code of Conduct between ASEAN [Association of Southeast Asian Nations] and China under the framework of the Declaration of the Conduct of Parties in the South China Sea will lead to increased mutual understanding among all the parties.”
So, we are back to the only recourse available – bilateral negotiation, the matter both China and the Philippine agreed on when we signed and issued the 1975 China-Philippines Joint Communique establishing diplomatic relations, and what both China and Philippines, acting separately, declared as our chosen as the modicum of settlement of disputes, excluding ourselves from the compulsory arbitration clauses of the UNCLOS, when and after we signed the Treaty.
It cost us $7 million or P350 million, to engage the services of foreign attorneys led by Paul Reichler of the Washington DC-based Foley Hoag law firm that has offices in Boston and Paris, France. Lawyering mainly for American and British interests in the case included Lawrence H. Martin and Andrew B. Loewenstein, both from Foley Hoag; Bernard H. Oxman of University of Miami School of Law, Miami; Philippe Sands of Matrix Chambers, London; and Alan Boyle of Essex Court Chambers, London.
Filipino lawyers and key government only served as observers and members of the official entourage, including the Vietnamese wife of Antonio Carpio, a former Supreme Court associate justice.
Assumably, the tribunal was organized under the United Nations Convention on the Laws of the Seas or UNCLOS, but it merely opined on maritime issues. The Philippines did not really get anything from it because even our claims were adjudged as mere rocks that do not generate exclusive economic zones.
Our position that the Kalayaan Island Group was a regime of islands was debunked by UNCLOS and our claims were reduced to only 12 nautical miles around them, thus rendering preposterous our wider claim to a West Philippines Seas reducing it to a mere nomenclature or name.
The tribunal also decided that the nine-dash line sovereignty claim of China had no legal basis, a sweeping conclusion because UNCLOS has no jurisdiction on sovereign territories. Thus, the award usurped powers, and would be good only to those illiterate in customary international law.
UNCLOS only extends “sovereignty rights” to exclusive economic zones or EEZs, which cannot protrude through another state’s sovereign territory. The rights only apply to fish and marine resources under the sea, as the surface remain to be international waters.
That is the difference between sovereignty and sovereign rights. We have sovereignty over 12 nautical miles of “territorial seas” from our coasts, and we can also have “sovereignty rights” 200 miles extending not just from our shores but from our continental shelf.
That the West Philippines which has been carved out of the South China Seas, is ours – is a lot of horse packey.
Even the controversial award, earned by Albert del Rosario, only at best affirms that we have “sovereign” rocks in it, comprising of ten remaining features including the Pagasa Island, and 12 nautical miles of territorial seas around them.
The fact is our expanded claim of 200 nautical exclusive economic zone from the southernmost tip of Palawan to the northern most tip of Batanes, otherwise known as West Philippine Seas, has no basis whatsoever except the fiat of mere administrative order 29 series 2012 by our former Benigno S. Aquino.
The last determination of our baselines, by domestic or municipal law is Republic Act 9522, which delimited latitudes and longitudes included in the 1898 Treaty of Paris and the 1900 Treaty of Washington, after we were bought from Spain by the United States.
Anything beyond already overlaps against China’s nine-dash line, a commonsensical reality based on facts on the ground.
The case of the Benham Rise is entirely different.
We filed a claim on April 8, 2017 with the United Nations Commission on the Limits of the Continental Shelf (CLCS) during the incumbency of Gloria Macapagal-Arroyo, beating the May 13 deadline for states to submit claims over their extended continental shelves.
In the case of Benham Rise, UN-CLCS formally awarded the Philippines 118 nautical miles of exclusive continental shelf. Thus, our sovereignty rights east of Luzon extends to 318 nautical miles.
Still, when the United Nations awarded to us the Benham Rise April 12, 2012, it does not mean we own it, but the “exclusive” right of use to everything in it under the water, belongs to us.
Rightfully so, on May 16, 2017, Rodrigo Duterte signed Executive Order No. 25 renaming Benham Rise to Philippine Rise.
From the distaff side, nonetheless, Albert’s dentist, Dr. Wilson Pamintuan, posted in the internet that the former ambassador “slipped and fell really bad in his bathroom months ago.”
He wrote that Albert came to his clinic recently on a wheelchair and had a long treatment before his trip to SFO where he was supposed to have a healing procedure.
Leaving his clinic, the dentist quoted Albert saying, “the most dangerous part of your house is the bathroom.”
As for Filipinos, American information war has given us not just a can to kick around all our lives, but a bathroom to slip on.
Now it has a become a syndrome our government officials cannot overcome, and a bad habit they cannot get out of, so bad the West Philippine Seas has become a malignant disease endangering not just our economic prosperity with China, but now a clear and present danger getting caught in the middle of a nuclear war that the US is provoking in our region.