Law over troubled waters

is the subject of my Trade Tripper column this Friday-Saturday issue of BusinessWorld:

This will offend the emotionally inclined, but it just has to be asked: with what happened in Japan, the earthquake, and the tsunami, does this mean that we’ll stop conducting a review on the JPEPA? Because one never knows with this country, fueled as it is most of the time by sentiment or emotion. I mean, we stop corruption investigations simply because somebody committed suicide.

And as anybody intelligently working on international law would notice, there’s an unseemly tendency here to work for the applause of foreigners rather than solidifying our interests. Or to put it another way, we seem to be "more popish than the pope" in our desire to ensure that international law is complied with. Whatever that means.

A recent example is our timid (and tepid) response to China’s aggressive violation of our waters last 2 March 2011. While kudos should go to our military, particularly Lt. Gen. Juancho Sabban, for shooing away those pesky Chinese boats, the response of our government leaves a lot to be desired. As reported by another newspaper, international law professor Merlin Magallona noted that "there’s something wrong [with the government sending somebody to China to discuss the incident]." Considering that "the Philippines is the aggrieved party. It should not have sent someone [to China] to explain. It should be the Chinese that should do the explanation. So why are we sending someone to explain to Beijing?"

Indeed, it was reported that the Chinese boats brazenly moved against a Philippine ship, apparently with the intention of looking for an opportunity to ram it. Thankfully, Lt. Gen. Sabban deployed two warplanes, one an OV-10 bomber, causing the Chinese boats to retreat. All this happened near Reed Bank, around the Spratly Islands, and is clearly within Philippine territory.

The Spratly islands, it must be remembered, are rich fishing grounds and are believed to contain vast oil and gas reserves. It is also a crucial sea-lanes area important for commercial shipping. So credit indeed to Lt. Gen. Sabban, who was reported to have said: "It’s clearly our territory. If they’ll bully us, well, even children will fight back." This guy should be commended. There is still hope indeed yet for our military.

Predictably, the Chinese tried to belittle Magallona’s statement, saying that such "were at best individual opinions not representing those of the Philippine government." This was, it must be remembered, after China rudely snubbed our diplomatic protest. But Magallona, who was a former foreign affairs undersecretary, was right in saying that China did an international wrong directly against the Philippines, committing as it did a "breach of international obligation with the threat of force. When they used the threat of force on the Philippine vessel, that’s a very clear sign that there’s a breach of obligation." And he’s right in this regard whether or not he’s representing the government. The real question is: why isn’t our government thinking the same way?

Magallona is most likely referring to Article 2, paragraphs 3 and 4 of the United Nations Charter, which provides:

"The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: xxx
"3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
"4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

Now we’ve always prided ourselves on upholding international law. So it’s ridiculous to be strict with ourselves on international law but allow others to do what they want, more so if such be against our interests.

China would later declare that it "has always maintained that the related disputes should be addressed through peaceful negotiations." Yeah, right. This from a country that went hysterical over a harmless Sept. 24, 2010, joint statement between ASEAN and the US reaffirming "the importance of regional peace and stability, maritime security, unimpeded commerce, and freedom of navigation, in accordance with relevant universally agreed principles of international law, including the United Nations Convention on the Law of the Sea (UNCLOS) and other international maritime law, and the peaceful settlement of disputes." Reacting to this in their usual fashion, China bluntly declared that it "claims sovereignty over the entire sea and all the island groups within it." The Philippine episode, in fact, was followed shortly by an incident in which a Chinese helicopter harassed a Japanese ship in the East China Sea.

Which reminds me: could we please stop referring to this body of water as the "South China Sea"? Instead, let’s call it the "West Philippine Sea" or the "Philippine Sea." It’s stupid to maintain a territorial claim against the neighborhood bully while referring to the entire area under the bully’s name.