By Adolfo Quizon Paglinawan

 

Readers should thank Jaime S. Bautista for his article last July 1 at the Manila Times for updating us about three conferences of the United Nations leading to the eventual adoption of the UN Convention of the Law of the Sea (UNCLOS).

These conferences, he alleges, rejected China’s historic rights to the South China Seas. In another column a week before, he also said China cannot claim historic rights over the South China Sea because it is evidently not a historic bay. However, these are sweeping allegations that mislead rather than educate his publics.

Our difficulties in dealing with China are that we have locked ourselves into counterproductive legalisms (lawfare) that are now going against our best interests. This has resulted to stonewalling on the ground (or more appropriately at sea) that resorts to propaganda (cognitive war) to justify provocative action.

This is not diplomacy.

What the chairman of the Philippine Council for Foreign Relations and the president of the Philippine Ambassadors’ Foundation Inc., has instead proved is how poorly our foreign policy analysts and foreign affairs officials have been guiding our clueless lawmakers and President, especially in anticipating long-term implications.

In his update, he applauded the late Senator Antonio Tolentino’s brilliant representation of our country in the three conferences pertaining to the law of the sea that led to the adoption of the Philippine archipelagic principle.

Article 46 of the Convention provides that an “archipelagic state” means “a state constituted wholly by one or more archipelagos and may include other islands” (46a) An “archipelago” is defined as “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” (46b).

The celebration, however, ended there. The following Article 47 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.”

To cure this, the Gloria Arroyo administration pushed Congress in 2009 to pass Republic Act 9522, constituting our new baselines law. That law successfully marked our marked our boundaries consistent with Tolentino’s archipelagic principle covering our land territories and internal waters.

However, to conform to the letter of UNCLOS, RA9522 removed the Kalayaan Island Group which was created under Presidential Decree 1596 of Ferdinand Edralin Marcos and replaced it with the concept of a “Regime of Islands” for our claimed features in the Spratlys, and including Scarborough Shoal way up north.

In 2014, the United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs in its official paper Limits in the Seas No. 142 Philippines: Archipelagic and other Maritime Claims and Boundaries, saw through the Philippine strategy:

“Section 2 of R.A. 9522 provides that “[t]he baseline in [the Kalayaan Island Group and Scarborough Reef] shall be determined by the ‘Regime of Islands’ . . . consistent with Article 121 [of the LOS Convention].” Although Article 121 of the LOS Convention does not contain any provisions regarding baselines, it appears as though the intent of this provision is to use the normal baseline for each island, provided for in Article 5 of the LOS Convention, rather than archipelagic baselines around each group of islands.”

In 2016, the Arbitral Award in its Paragraph 574, confirmed “In any event, however, even the Philippines could not declare archipelagic baselines surrounding the Spratly Islands”, forever eliminating the Kalayaan Island Group as the ratio of water to land in the Spratly Islands would greatly exceed UNCLOS’ Article 47’s rule of 9:1 under any conceivable system of baselines.

Nevertheless, the Award also debunked the proposed Regime of Islands, by classifying no islands, but some claimed features as high-tide elevations or “rocks”, which by themselves cannot generate 200 nautical miles of EEZ but only 12 nm of territorial sea. No regime was possible because the featured rocks are too far from each other to form a substantial overlap.

Scarborough Shoal was considered a rock. While it is within 200 nm from our Zambales baselines, we had already lost control of the area to China four years before the award. Whether we like it or not, it is now under Chinese sovereignty.

In addition Bautista claims, “The arbitral tribunal ruled that Ayungin Shoal and the Reed Bank (Recto Bank) are part of the Philippines’ exclusive economic zone (EEZ) and continental shelf. These are issues, not over land territory, but over maritime domain and the seabed and subsoil. The arbitral award is our title and our soft power.”

This is what we call as selective reading of the law. It is a half-truth, in short a falsehood.

Ayungin Shoal and its surroundings were not named as rocks, and instead low-tide elevations (LTEs). While they are within 200 nm from our Palawan baselines, the Arbitral Tribunal ruled it in Paragraph 1161 as a “quintessentially military situation”, denying it de facto of EEZ status. Ironically, it is the grounding of the derelict BRP Sierra Madre by the Philippines that caused the militarization.

At any rate just to level expectations, let me offer basic definitions before going further into this article:

Sovereignty means the right and power to make and enforce laws. In international law, this can be acquired by law, usually by treaties, or by custom, usually by occupation and effective control of a given territory, without any interference and restriction from any outside bodies or sources.

Sovereign right is a term used in UNCLOS, to pertain to limited rights or entitlements or privileges of a state to a defined area of a sea called Exclusive Economic Zone, that extends up to 200 nautical miles from coastal baselines, for the purpose of “exploring and exploiting, conserving and managing the natural resources of the waters sub-adjacent to the seabed and its subsoil, including production of energy from the water, currents and winds.” (UNCLOS Article 56).

The implication of these definitions, is that sovereign right cannot supersede or protrude sovereign territory, and where an EEZ does not have any barriers, for example, in the Benham Rise east of the Philippines, the surface waters and the aerospace above it do not accrue to the coastal state but remains international domain.

Loss of sovereign territory

Moving forward, Bautista blows the whistle on UNCLOS as he divulges “The conferences (also) did not accept the Philippines’ contention that the Treaty of Paris conveyed sovereignty over the waters within the latitudes and longitudes described in the Treaty of Paris between Spain and the United States.”

The retired ambassador admitted the Philippines passed Republic Act 9522, or the Philippine Archipelagic Baselines Law…. (in) observance of its pacta sunt servanda obligation under the convention.”

But did the framers of this law properly inform the public that we were exchanging our sovereignty within the Treaty Limits we acquired through historic rights, over 830,140 square kilometers of “sovereign territorial sea” for a slightly larger expanse of exclusive economic zone where we only have “sovereign rights”?

In our haste to blindly conform with the Convention, we also lost over 70,000 square kilometers of claims under Presidential Decree 1596.

Yes, Republic Act 9522 erased the Kalayaan Island Group.

Precisely because of that, distinguished law expert and professor of the University of the Philippines, the late Merlin Magallona led a petition in the Supreme Court to declare the law unconstitutional.

One of the co-filers of that petition is Harry Roque who has expressed in public his bewilderment why our Congress was such a rush to harmonize our laws with UNCLOS.

R.A. 9522 was declared not unconstitutional through GR 187167. Guess who was the ponente?

No less than retired magistrate Antonio Carpio, who recently claimed in a vlog interview, “The Treaty of Paris baselines and Presidential Decree 1596 is problematic because its makes us look just like China in their ‘nine-dashed line’ ”.

“Republic Act 9522 cleaned our hands,” he added oblivious of the enormous damage he has done to our sovereignty.

Carpio did not stop there dishing out another tall story, “In 2012, the Chinese ordered the North Koreans to fire a missile baiting the BRP Gregorio del Pilar to proceed to the Scarborough Shoal.” How he could stitch that to continuing his narrative that “the Philippine Navy ended boarding Chinese fishing boats allegedly poaching in the area.”  

That is an exhausting thought. All of sudden North Korea is in the equation!

The Associate Justice even lied, “Kinuha nila ang Scarborough sa atin.” (They got Scarborough from us.)We lost the shoal because we abandoned de facto control by withdrawing our ships from the standoff while the Chinese did not.

 (Refer to https://amti.csis.org/counter-co-scarborough-standoff/ a dispassionate analysis by Michael Green (CSIS) for the Asia Maritime Transparency Initiative website to see how incompetent we conduct our foreign relations in the area of conflict resolution.)

Dangers of dogmatism

I submit that every state signatory to a treaty is under obligation to harmonize its laws with the provisions of UNCLOS.

But we should not allow “legalistic dogmatism” to take over the wise side of the discourse. Otherwise, it would leave no “strategic ambiguity” to flex towards what is best for our national interest through time, which is what we are experiencing now.

It has to be said here that, whereas citizens have no choice but to obey a country’s internal law, compliance with international law can be navigated by international relations and astute diplomacy.

Bautista cannot standardize signatory countries’ response to every letter of the Convention. Otherwise, there will no more space for diplomats to maneuver. UNCLOS does not embody more than 250,000 treaties that are still working in all parts of the world. He himself reiterated that the jurisdiction of UNCLOS is confined to only maritime issues, which disposes it as not absolute.

This is why signatories have been given opportunities “during signing, upon ratification and sometime thereafter”, to declare or disclose to the UN secretary-general, their difficulties in harmonizing specific provisions with their internal laws.

Significantly, every treaty must recognize the state’s right to state consent.

Challenges are recognized as the Conventions provide for compulsory mechanisms to resolve resulting disputes and settle matter disagreeable to specific provisions of any Convention…and when those mechanisms become impossible, states must propose the alternative norm of conflict resolution.

Acting separately and for each to its own reasons, both China and Philippines submitted declarations to the UN in favor of bilateral negotiations. Note that when the Philippines and China opened diplomatic relations in 1975, both countries also stipulated bilateral negotiations as the acceptable mechanism for settling disputes.

It is curious, however, that nursing hurts brought about by the Scarborough Standoff in 2012, then Secforaf Albert del Rosario filed an “arbitration” case against China on January 22, 2013.

Obviously, arbitration is not bilateral.

Carpio unabashedly claims he influenced Del Rosario. Note that both are not diplomats – the former is lawyer and the latter is a businessman. Both have vested interests in the oil and gas exploration at the Reed Bank (Recto Reef) by private corporations Forum Energy and Philex Mining.

What arbitral victory?

I am not surprised at all that the three conventions rejected China’s claim to historic rights. Baustista knows the reasons for this.

In a Manila Times article on August 21, 2017 entitled Choices in the South China Sea (Track 2), he acknowledged “the Philippine government has taken a cautious approach to the bilateral negotiations, since the (xxx) arbitration decision, which the Philippines won, covers only issues relating to the rights of the Philippines with respect to its EEZ and continental shelf. (Bold italics mine).

“The arbitral decision did not cover issues of sovereignty, whether of Scarborough Shoal or the Spratly Islands…The United States has taken the position that its Mutual Defense Treaty with the Philippines does not cover our Kalayaan Islands unless the Armed Forces of the Philippines stationed there are attacked.”

So how can Bautista even claim, we won the arbitration? Moreover, I will demolish that “victory” by quoting one specific section of the Arbitral Award:

Paragraph 272. “…because the Tribunal considers the question of historic rights with respect to maritime areas to be entirely distinct from that of historic rights to land, the Tribunal considers it opportune to note that certain claims remain unaffected by this decision.

“In particular, the Tribunal emphasizes that nothing in this Award should be understood to comment in any way on China’s historic claim to the islands of the South China Sea.”

Having said that, the same Paragraph did not exclude China from its entitlements under UNCLOS, “Nor does the Tribunal’s decision that a claim of historic rights to living and non-living resources is not compatible with the Convention, limit China’s ability to claim maritime zones in accordance with the Convention, on the basis of such islands.”

Mind you even under duress of suspected bias, the Arbitral jurors did justice to China despite the fact that they were handpicked and named by the Philippines that covered their honoraria and expenses.

Further, I am giving Bautista a yellow flag for using the term “UNCLOS arbitral tribunal” because the arbitration called by the Philippines was a voluntary arbitration on matters pertaining to the Convention but had nothing to do with the United Nations, in form or merits, as clarified by Stephane Dujarric, official UN spokesman for Ban Ki-moon.

Not easy for China to harmonize

As a former ambassador, he should be the first to understand that while China is a controlled state whereupon harmonizing its laws with UNCLOS could be facile; given China’s history of 100 years of humiliation, harmonizing its people is easier said than done.

Bautista however sticks to his mindset with a tinge of insult: “It should not be difficult for the People’s Republic of China to show its goodwill and abandon a discredited doctrine that was enunciated by its rival, the Chiang Kai-Shek government. Otherwise, China’s reputation will continue to suffer with its false narrative, and face exposure as a rogue state.”

Regardless of thousands of years of exercising sovereignty over the South China Seas, the most difficult years of its history started with the Sino-Japanese War of 1894 all the way through the Second Sino-Japanese War, through World War II up to the formal recognition of the Peoples Republic of China in 1971, and the turnover to PROC by Japan of territories it has occupied, as mandated by the 1943 Cairo Declaration.

This statutory construction has not only been through colonization and bastardization of China’s culture by western powers but of wars, bloodshed and suffering of its people that has been ingrained in the memory of its surviving population of 1.4 billion.

Despite China’s red-line sovereignty claims, however, it has not been inflexible when disputes are dealt with bilaterally. What irks China is interference by third parties especially if they are outside the ASEAN region.

China was forthcoming in resolving the asymmetry between its sovereignty and Philippine sovereign rights claims by proposing a Joint Venture on the oil and gas project at Reeds Bank. China will be fully funding and implementing the exploration but it surprised many when it said the Philippines can take 60% of the proceeds.

A Code of Conduct is also in the process of being finalized between China and the ASEAN nations.

Conclusion

I consider it senile for Bautista to cast an ad hominem tirade against those who do not support his beliefs when he said, “Will China’s friends in the Philippines keep defending China’s narrative of historic rights despite the fact that three UN Conferences on the Law of the Sea rejected the claim to historic rights to the sea?”

The ambassador must not allow himself to lose his faculties: “They would have to be totally blind (to be kind and non-accusatorial about it) to keep on mouthing China’s propaganda.”

 It is hard enough for a developing country to be in a dispute with a rising superpower, but for our diplomats to only rely on their stock knowledge when writing a regular column in a paper of good repute, is not acceptable.

   

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