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.
