Defending Scarborough fair

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

Off the bat, I strongly suggest that people stop referring to proximity or the Exclusive Economic Zone as basis for our claim over Scarborough (or, if you prefer, Bajo de Masinloc). To claim EEZ as basis is tantamount to saying Scarborough is not part of our territory but just an area we have first right to exploit the resources found therein. Considering the nature of international law, we must be precise in our declarations. What should be emphasized therefore is this: that Scarborough is part of Philippine territory from which the contiguous zones and the EEZ are to be counted from. And that it is our territory because of effective occupation and administration.

Such was correctly stated by the DFA in its 18 April 2012 paper released to media:

“As decided in a number of cases by international courts or tribunals, most notably the Palmas Island Case, a modality for acquiring territorial ownership over a piece of real estate is effective exercise of jurisdiction. Indeed, in that particular case, sovereignty over the Palmas Island was adjudged in favor of the Netherlands on the basis of ‘effective exercise of jurisdiction’ although the said island may have been historically discovered by Spain and historically ceded to the US in the Treaty of Paris.

In the case of Bajo de Masinloc, the Philippines has exercised both effective occupation and effective jurisdiction over Bajo de Masinloc since its independence.”

The only question that remains is how to make this legally correct claim conclusive upon the other countries. Contrary to what one commentator wrote last week, we cannot unilaterally bring a case to ITLOS. As I stated back in 2011:

“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 state parties to the dispute actually give their consent to be subjected to such jurisdiction. And China has pointedly rejected the jurisdiction of the ITLOS when it made the following declaration upon joining the UNCLOS: ‘The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.’

China’s reference to Article 298 means that “it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes: disputes concerning the interpretation or application of articles 15, 74, and 83 relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297; and disputes in respect of which the Security Council of the United Nations is exercising its authorized functions, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in the UNCLOS.”

The confusion expressed by some about unilaterally filing an ITLOS case is perhaps understandable. The UNCLOS does make use of the words “mandatory” or “compulsory” modes of dispute settlement. But such is misleading. It merely refers to making arbitration as the mandatory mode of settling a dispute whenever the parties have not come to an agreement as to what mode they prefer (the choices are the ICJ, ITLOS, or arbitration). But this presupposes that the parties already agreed to bring the matter to dispute settlement. Because despite the words “compulsory” or “mandatory,” the UNCLOS dispute procedure is still consensual in nature. To actually claim otherwise is irresponsible because it could potentially subject the Philippines to an embarrassing case dismissal due to ignorance of international law. And as we know already, the Chinese has refused our invitation to bring the matter to dispute settlement under UNCLOS rules. Which is weird really when one considers the fact that China, aside from loudly proclaiming its alleged rights over the dispute areas, has a sitting member in the ITLOS: Zhiguo Gao [we don’t].

It doesn’t take a genius to figure out the reason why China is wary of facing us before such international tribunals. In any event, there are other things we can do in pursuing our claim. We should continue our legal preparations for an eventual case, maintain vigilance and increase presence over the territories (China’s military might is inconsequential in the end as it can never give legitimacy to their claim), develop our cyber warfare capabilities, acquire active international monitoring and support, and -- finally -- strictly enforce our smuggling and immigration laws.