is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
As I repeatedly keep pointing out, one of the most annoying things in international law practice is how more often than not it would be fellow Filipinos who would be “lawyering” for the other countries. Merun kasi diyan ang galing makipagtalo pag kapwa Filipino pero pagdating sa dayuhan oo agad o tameme lang. This inane behavior is again on full display in relation to the Spratly islands debate. Rather than have confidence in the strength of our position, some would go to the extent of criticizing our public officials for doing something that they also should be doing: asserting our national interest.
Foreign Affairs Secretary Albert del Rosario must be lauded and supported for declaring, as reported in the newspapers, that “China’s hesitation to accept the Philippine suggestion to elevate their dispute to ITLOS could lead to conclusion that China may not be able to validate their stated positions in accordance with the UN Convention on the Law of the Sea (UNCLOS).”
The reason for the need to have China accept the proposal to elevate the case to the International Tribunal Law of the Sea (or ITLOS) is that, unlike domestic tribunals which can acquire jurisdiction by mere service of summons for example, international tribunals operate within the constraints of State sovereignty. In other words, the only way an international tribunal can have jurisdiction over the case is if the States parties to the dispute actually give their consent to be subjected to such jurisdiction. The application of sovereignty to a tribunal’s jurisdiction is such that, in certain cases, the States parties can even dictate who the tribunal members are, the language to be used, the scope of the ruling, venue, etc. Sovereignty constraints also bind the UN’s International Court of Justice, which essentially presents a two-consent mechanism: assent to the ICJ Statute and execution of the optional jurisdiction clause. China has not done the latter. The WTO dispute settlement system jurisdiction, on the other hand, had been consented to by the members upon joining.
So Secretary Del Rosario was completely right in concluding that China’s discomfort with the objective proceedings of the ITLOS (or ICJ) is essentially an indication of an admission of weakness on the part of China. The latter’s lame excuse not to resort to international tribunals is that “China always maintains that the South China Sea dispute should be resolved through direct negotiations between directly concerned countries.” Annoyingly, a number of our countrymen bought this argument, all the while conveniently forgetting that we are dealing with a country whose government just does not have palabra de honor.
One example: as George Weigel of the Ethics and Public Policy Center recently wrote: “For some time, a modus vivendi was in place between the Vatican and Beijing on the appointment of bishops. It was never codified, but everyone knew the basic rules of the road: No bishops are to be ordained without the tacit approval of the Holy See. The regime brazenly broke that working agreement late last year, going so far as to drag one elderly Chinese bishop by his hair to an illicit episcopal ordination.” And as if it needs emphasizing: China’s military has resorted to repeatedly harassing the Philippines in asserting its dubious claims.
The Philippines should view its relationship with China with greater objectivity, not allowing itself to be dazzled by the business that China is baiting us with or be awed by its supposed power. This is not to say we shouldn’t deal diplomatically with China. Of course we should. But we negotiate with the strong inner conviction that we are in the right. Because we are. This includes, if necessary, re-drafting our Baselines Law approximately back to the boundaries covered by the old Baselines Law: RA 3046, as amended by RA 5446, that, along with PD 1596, expressly includes Sabah and the Kalayaan Islands as part of Philippine territory. We should prohibit or ban any map or material, specially official documents, that makes reference to a “South China Sea” because it’s really the “West Philippine Sea” or the “Philippine Sea.”
And I reiterate, in the meantime, the best way to deal with China and protect our national interests is by simply implementing our laws. Firstly, it would be good to really clamp down on smuggling, including “technical smuggling.” Another would be stricter application of our immigration rules. Reports of foreigners surreptitiously entering our country should be investigated and prosecuted vigorously. Considering the rising unemployment in our country, to stop the entry of illegal aliens should be a priority.
Finally, our foreign and trade relations should be done not only with the view to financial gain but also to advancing human rights, labor standards, environmental protection, and democratic values. Why? Because they are what we stand for! It’s hypocritical and betrays an utter lack of character to loudly pontificate on such only to forget them the moment money is dangled before our eyes.