Fatal Consequences of American Vassalage: Arbitral Anniversary Forum Statement

 

By Adolfo Quizon Paglinawan, 0917-336-4366, adolfopaglinawan@yahoo.com

Part One: Choice between Polemics or Development over South China Seas

Juan Miguel Zubiri has confirmed the intellectual bankruptcy permeating within the walls of the Philippine Senate when he threw his support behind a proposal for the Philippines to elevate to the United Nations General Assembly, the 2016 Permanent Court of Arbitration ruling that “invalidated” China’s territorial claim in the South China Seas.

The urban dictionary defines intellectual bankruptcy as engaging no longer to debate issues in good faith, but instead seek to lie, distort, name-call, target, and destroy with any means possible.

 Zubiri leads an initial list of simpletons including Francis Tolentino, Risa Hontiveros and JV Ejercito, who obviously do not know how the United Nations work but want to exacerbate a subject matter which I doubt they have even read about and understood.

General Assembly

To start with, unlike a state parliament or congress, the UN General Assembly is not a formal source of law, and all its resolutions retain strength and authority only of an opinion or “general will” of states on a specific subject. Even the United States continue to refuse to treat General Assembly Resolutions as authoritative sources of international law.

The General Assembly has remained a political body endowed with the advantages of open and uninhibited discussion. It serves a valuable function as a forum for the expression of momentary indignation and deeply held sentiments.

Known American litigant Gregory J. Kerwin wrote, “But its strengths as an international political body are also its weaknesses as a legislative body. If member nations knew they would be bound by their votes, many resolutions would never be passed…”

International Community?

Zubiri, Tolentino, Hontiveros and Ejercito got excited when 16 countries recently expressed their support to the 2016 PCA ruling.

Immediately, Hontiveros issued a press release saying “By ignoring the growing consensus coalescing around the Philippine victory in the West Philippine Sea Arbitral ruling, the Chinese government further isolates itself from the international community”.

What international community is she talking about?

When in July 2016 the PCA ruling was released, 147 countries ignored it. Seven, including Taiwan, opposed it. Another 33 countries acknowledged the ruling but did not call for compliance.

Only the G-7 countries led by the United States, who stand to benefit from the ruling wanted China to comply with the award. After seven years and under duress from the Americans, this has so far grown to the 16 countries of the European Union (EU) that Hontiveros is flaunting, as “international community”. This translates to seventeen including the US that is not even a member of the United Nations Convention on the Laws of the Seas (UNCLOS).

The Philippine Star headline screams “EU says arbitral ruling on SCS legally binding” but when you go to the body text of the story, it says “binding upon those parties in the proceedings”. What does that mean but binding only to the Philippines because China opted out of the arbitration!

Second, the European Union said it “supports the swift conclusion of talks aiming at an effective Code of Conduct (COC) between ASEAN and China”. Even China agrees to coming out with this diplomatic protocol. In fact, nobody except the United States has been throwing the kitchen sink on this initiative, as it might exclude access to third parties like itself.

Note that the only thing EU has qualified for is that the COC to be “fully compatible with UNCLOS and also respects the rights of third parties, a position long taken by the US and its European allies to ensure their own “rules-based” interpretation of “freedom of navigation” in the area.

UNCLOS however distinguishes unmitigated freedom of navigation from the treaty law’s principle of “innocent passage” that defines and regulates the traffic of military ships in areas where coastal states have maritime entitlements.

The foregoing indicates Hontiveros is ignorant of this distinction.

International Court of Justice

What about the route through the UN judicial system?

The role of the International Court of Justice is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

But even if the ICJ is an organ provided for by the Charter, its competence is not compulsory for the UN Member States, who remain free to accept, or not to accept its jurisdiction on either a permanent or an ad hoc basis. Thus, only States may refer matters to the ICJ against other States that have also accepted its jurisdiction.

Article 94.1 of the UN Charter and Article 60 of the Statute says “the decisions of the ICJ are binding and final for the States and cannot be appealed” but Article 94.2 of the Charter qualifies, “the Security Council has the authority, at the request of the injured State, to implement special measures to enforce a judgment rendered by the ICJ.”

Security Council

The UN Security Council is one of the six principal organs of the United Nations charged with establishing peacekeeping operations, enacting international sanctions, and authorizing military action. (It) is the only UN body with the authority to enforce binding resolutions on member states.

The Security Council has fifteen members that cannot prevent or end a debate but five of them are permanent members who have the power to veto any substantive resolution – allowing a permanent member to block its adoption.

 What this means is that even if the UN General Assembly passes a resolution or the International Court of Justice issues a final judgment, if such is submitted to the Security Council and one of its permanent members vetoes it, nothing will happen.

 

Let us take up former Associate Justice Antonio Carpio’s favorite precedence in building a case against China at the United Nations.

In 1984, the Republic of Nicaragua v. the United States of America (1986) was a case where the International Court of Justice (ICJ) held that the U.S. had violated international law by supporting the Contras in their rebellion against the Sandinistas and by mining Nicaragua’s harbors.

The case was decided in favor of Nicaragua and against the United States complete with the awarding of reparations. Nicaragua also won a non-binding resolution from the UN General Assembly.

The United States refused to participate in the proceedings, arguing that the ICJ lacked jurisdiction to hear the case. The U.S. also vetoed enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any compensation.

With this anecdote as background, allow me to educate Zubiri, Tolentino, Hontiveros and Ejercito that China, and its ally Russia, are permanent members of the UN Security Council.

What is also necessary mentioning here is that even under just UNCLOS, China has been elected to a seat in the International Tribunal of the Laws of the Seas (ITLOS) – the compulsory arbitral mechanism of the treaty law for resolving disputes.

Polemics to lead to loss of territory

If the UN is a dead end, insofar as bringing China to the General Assembly and the International Court of Justice, and for that matter the Security Council, for that matter ITLOS, why are these nitwitted senators proposing we even go into that direction?

Who stand to benefit from such a useless endeavor but the lawfare and propaganda war the United States has staged to demonize China. The Americans have since the Commonwealth ridden on the crest of the Filipino’s love for polemics and pointless disputations.

The Philippine government still has to explain to the Filipino people how BS Aquino and Albert del Rosario spent between 2013 and 2016 over one billion of the people’s money, Php350million of which just went to American and British lawyers, to stage a mock arbitration framing China nine-dash line as having “no” legal basis.

The Americans and its allies have been hyping the seventh year of what it calls an “arbitral victory” by the Philippines over China, over an arbitration that never became legitimate because China opted out of the process.

That arbitration was intended to cover-up and regain Scarborough Shoals how in their utter incompetence, President Noynoy Aquino and Secretary Albert del Rosario lost the territory.

The Chinese did not grab Scarborough Shoals from us, we surrendered control of the area to them after these two imbeciles ordered our ships to withdraw from the area for what turned out to be a miscommunication between Manila, our Embassy in Washington DC, and the US State Department.

This is what happens when instead of talking to China directly, we hide behind the ass of our former colonial masters.

Under customary international law which is beyond just the treaty law that is UNCLOS, China’s possession and effective control of the area is equivalent to sovereignty, So, if we insist on acting as the American megaphone shaming China, we can never recover control of Scarborough Shoals, except through war.

Ironically, this is how the US had goaded our naïve leaders into more bases under an Enhanced Defense Cooperation Agreement, making the Philippines their urgent listening post on Chinese activities and possibly their strategic launching pad for war against China.

In lawfare, we too lose

Those who have read both UNCLOS and the arbitral ruling cannot miss that Philippines stands to lose more if we continue to be blindsided that the United States has framed both China’s nine-dash line and the Kalayaan Island Group as standing in the way of America’s unilateral FONOPS as in “freedom of navigation operational resistance to excessive maritime claims.”

 

 

Ambassador Rigoberto Tiglao wrote in his column at the Manila Times, “…we are really the losers in what DFA Secretary Enrique Manalo and the Stratbase ADRI— and of course, the US government — have claimed as a ‘landmark ruling’ in international law.

“It is the same UNCLOS provisions that the arbitration ruling invoked to declare China’s nine-dash line illegal that the panel invoked to declare our Kalayaan Island Group (KIG) without basis in international law.”

Paragraph 574 of the arbitral ruling pointed out that “the Philippines could not declare archipelagic baselines surrounding the Spratly Islands.”

 

 

The arbitral ruling explained: “Article 47 of the Convention or UNCLOS limits the use of archipelagic baselines to circumstances where ‘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.”

Finally, paragraph 599 issued its judgment, “The ratio of water to land in the Spratly Islands would greatly exceed 9:1 under any conceivable system of baselines. Indeed, 98 percent of the Spratlys is made up of water.”

 The total area of Philippine territory is roughly 1.2 million square kilometers – consisting of 300,000 sqkm of land, 680,000 sqkm of territorial and inland waters, and the 230,000 sqkm encompassed by the KIG.

If we lose the KIG, as the arbitration panel ruled, we lose 19 percent of our territory.

This is to where Zubiri and his kiss-ass gang is taking us.

To be continued: Deconflicting the South China Seas is the Way to Go!

 

   

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