By Adolfo Quizon Paglinawan

 

Part One of 3: The Philippines’ Failing Foreign Policy

If Catherine S. Valente and the Manila Times is to be believed, the problem with President Ferdinand Romualdez Marcos is that he appears to have left the determination of his foreign policy to an interloper in the Philippine Coast Guard who often issues pontifications about international law that is way beyond his league.

I am of course referring to a certain Jay Tarriela who is among a notorious seven who have been posturing as experts in the South China Sea issue, but cannot defend their positions against my simple cursory readings and direct quotations from mainly the United Nations Convention of the Laws of the Seas and the 2016 Award of the Permanent Court of Arbitration.

UNCLOS and the arbitral ruling do not require any masteral or PhD degree for its understanding. Just being non-dyslexic and common sense will suffice.

In Valente’s story, she quoted the President responding to the reported presence of Chinese warships and a helicopter near Bajo de Masinloc (Scarborough Shoal):

“It’s worrisome because there are two elements to that. One, before it was just the Chinese Coast Guard moving in our area, now it is the Navy with the fishing boats. So the situation is changing, We just watch, of course, what everybody is doing, but for us, we just defend our maritime territory. We continue to support all of our fishermen who make their living from these fishing grounds.”

This is yet another motherhood statement coming from Malacanang, but what did not escape my eyes was the term “our maritime territory”, which seems to have been lifted from Tarriela’s assertion two days earlier.

PCG must explain

Actually, Philippine Coast Guard Admiral Ronnie Gil Gavan ought to clarify on what capacity is Tarriela speaking these days. I heard that he has been removed from being deputy chief of staff for human resources (CG1) and replaced by Captain Glide Gene Mary Sontillanosa.

He has also been defanged as “maritime adviser” to the Commandant, a function that should be performed by Captain Nelson Jay Timbang, deputy chief of staff for intelligence (CG2)      

I am not sure if the designation of Tarriela by Admiral Gavan’s predecessor Admiral Artemio Abu as ad hoc spokesman for the West Philippine Seas still holds because that limits the powers, responsibilities and importance of Commodore Algier Ricafrente who is deputy chief of staff for international affairs (CG5)

I also know that the official PCG spokesman is the much-respected Rear Admiral Armando Balilo, who is commander of Commander        Civil Relations Service.

What I am not clear is has been under “floating status” but still maintained as some kind of the spokesman of the Philippine Coast Guard under Gavan? Or is he “on loan” to the National Task Force for the West Philippine Seas under National Security Adviser Eduardo Ano, to whose direction he has been singing alleluias lately.

This must be clarified because he often accorded by mainstream media as some sort of authority when it comes to South China Sea issues.

Tarriela’s latest blurb was also quoted by Valente in her Manila Times story:

“It is important for us to note that within Bajo de Masinloc, the 12 nautical miles, we have territorial sovereignty over these waters.”

The quote is malicious because he implied that this is the reason why China’s “warships maintained a distance of more than 20 nautical miles away from the shoal.” It is important to put this to its proper light not only because it is so fake a disinformation but it is a product of a twisted mind.

Of course, it never ceases to amaze me that journalists continue to write news stories based on personalities who spread them (in this case one bearing the title of Commodore in his chevrons), no matter how false and dismissive they seem, rather than first verify the veracity of what they are feeding their readers.

Tarriela’s continuing schooling

I am glad that Tarriela has finally learned that Scarborough Shoal, or what he calls Bajo de Masinloc, is a hightide elevation (HTE) or a “rock” and that rocks are entitled to 12 nautical miles territorial sea according to the 2016 PCA arbitral ruling,

However, the Philippines has no law and no legal or historical precedence that shows that is our sovereign territory. Not even the arbitral ruling itself did so.

It is clearly outside of our 1898 limits set by the Treaty of Paris in 1898 and the Treaty of Washington in 1900. (The shoal is of course irrelevant to the Convention Treaty of 1930 between the US and UK designating the southern limits of the Philippines from Northern Borneo.) These treaties substantially outline what Philippine territory is and is not.

Worst even the arbitral ruling could not award it to the Philippines because sovereignty over land (island or rock) is outside its jurisdiction. It is presumptuous to call the 12 nautical miles (nm) around this rock as “our” maritime territory because maritime territory cannot stand alone under UNCLOS and has to extend from land territory as basis in this case.

Tarriela has invoked in the past that Scarborough Shoal is within 200 nm from our nearest Luzon shore. There are also a few caveats here:

First 200nm can only accord “sovereignty rights”. Maritime territory is a lot more, as earlier mentioned – an extension from land territory, or sovereignty. Anybody who cannot see any difference between sovereignty and sovereignty rights, from their mere spelling, is an idiot.

Second, Article 57 of UNCLOS states: “The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”

The preceding Article 56 provides:

“1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention.

“2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

“3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.”

In Article 56, the provisions on sovereignty “rights” are explicit. The is no reference about “sovereignty” except a hint in Section 2 about rights and duties of other states.

Asymmetry

The difference between the territorial sea (or maritime territory) and the exclusive economic zone (EEZ) is that the first confers full sovereignty over the waters, whereas the second is merely a “sovereign right” which refers to the coastal state’s rights below the surface of the sea. The surface waters remain to be international waters.

Sovereignty and sovereign rights are asymmetrical. Caution is advised here as western propaganda has attacked this distinction, maliciously introducing equivocation or ambiguity, to suit their vested interests.

This is why one must be discerning when alluding to jurisdiction pertaining to sovereignty, as against jurisdiction arising from sovereignty rights because on the latter UNCLOS cannot define the ownership of any maritime features (islands, rocks and low-tide elevations) within the EEZ.

Third, are sovereignty rights as granted by UNCLOS, absolute? No.

I wish to present some limitations here because in Section 2 of Article 56, I repeat: “In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.”

My first example is that sovereignty rights cannot supersede another state’s sovereignty.

The debate here has been obscured by the 2016 PCA Arbitral ruling that the nine-dash line has no legal basis under UNCLOS. I have no intentions of discussing this here other than to say that a dispute has resulted because the Peoples Republic of China has never claimed “sovereignty” in the South China Seas on the basis of the “nine-dash line”.

Besides China did not only not participate in the said arbitration further claiming that the procedure violated its inherent right to “state consent”, but more importantly, China has consistently asserted that its sovereignty over most features of the South China Seas emanate from “historic rights”.  

Ayungin and Scarborough applications

 My second example is plucked out of the same 2016 PCA ruling over the Second Thomas Shoal or the Ayungin Shoal specifically excluding the normative exercise of sovereignty rights and EEZ applications over militarized areas.

Paragraph 1161. “In the Tribunal’s view, this represents a quintessentially military situation.”

Paragraph 1162. “The Tribunal finds that it lacks jurisdiction to consider the Philippines’ Submissions No.14 a-c.”

This is ironic because it is the Philippines that militarized Ayungin Shoal by grounding a Philippine Navy vessel, the BRP Sierra Madre, and refusing to remove the rusting derelict from there.

My third example zeroes into the Scarbough Shoal itself.

 Paragraph 1203 (B)(11) The Tribunal “finds that Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities.” How can it be exclusive when the ruling is one of inclusivity. If at all, and precluding any other contradiction, then this area is at best a shared economic zone.

This notwithstanding, the same tribunal in Paragraph 805-809, concluded that traditional fishing rights in the Shoal are not absolute, and must be subject to regulation.

Fourth, and the most deprecating factor demolishing Tarriela’s shooting from his hips, is that recent history has already resolved as to who exercises sovereignty over Scarborough or Panatag Shoal, or Bajo de Masinloc.

As I recently reviewed my content analysis notes since February 2023, I noticed that this PCG commodore mouthpiece has recently been avoiding the issue of sovereignty and has been using instead the “territory” line.

His use of “maritime territory” it seems puts him closer to UNCLOS undertones

Only a person who has incurred a head injury can use early Alzheimer’s disease as an excuse for not remembering that the Philippines surrendered the area to China after the 2012 Scarborough standoff!

China did not unrighteously occupy Scarborough Shoal. Former President Benigno Simoen Aquino III defaulted control of the territory to the Chinese.

I recommend this must readings for President Marcos and Commodore Tarriela:

First: PHILIPPINE VERSION – https://verafiles.org/articles/pnoy-del-rosario-responsible-for-ph-losing-control-of-scarborough-shoal

Second: CHINA VERSION – https://www.pekingnology.com/p/amb-fu-ying-on-huangyan-daoscarborough

Customary Law

The first lesson in international law for dummies, is that not all international law is written.

In fact, written law represents only a small part of international law.

Customary law is an unwritten legal rule, which derives from general, uniform, and constant patterns of behavior, established in the long run and considered in the same way as a binding law.

One such constant behavior has developed into a doctrine of “effective control” described as “an intentional display of power and authority over the territory, by the exercise of jurisdiction and State functions, on a continuous and peaceful basis”.

Has President Marcos’ rhetorics been taken hostage by foolish lawyers and warmongers who have improvised their own lexicon to suit their vested interests?

Addressing the Australian parliament a few days ago, he uttered a tricky and dangerous declaration: “We must uphold, preserve, and defend the unified and universal character of the United Nations Convention on the Law of the Sea as the constitution of the oceans.”

UNCLOS is a single treaty. It is not the totality of international law.

There are over 250,000 international treaties that aim to foster global cooperation. The Proceedings of the National Academy of Sciences of the United Sates of America has conducted a systematic field-wide evidence synthesis of 224 primary studies and meta-analysis of the higher-quality 82 studies that found treaties have mostly failed to produce their intended effects.

This body also found evidence that impactful treaties achieve their effects through socialization and normative processes rather than longer-term legal processes

So when Marcos aped “ruled-based order” to preface his statement on a “constitution of the oceans”, it made me wonder who is writing his speeches.

The notorious order ruled-based order is derived from a US slogan cherry-picking what suits its interests from written treatise and edicts, often times to assert hard core legitimacy in disregard of what is effectively on the ground, sending diplomacy to its demise.

What is pathetic is the United States is not a member of UNCLOS, so there is a serious disconnect here.

International law is not static as a constitution is. It is dynamic and primarily exists to guide international relations to a peaceful and beneficial destination, not derision and conflict onto war.

To be continued.

Next: West Philippine Seas – The Idiotization of the Filipino.

 

 

Email: contact@asiancenturyph.com

Facebook: https://www.facebook.com/asiancenturyph/

Twitter: https://twitter.com/AsianCenturyPH

Substack:

Also read: