Scarborough, China, and ITLOS

Just some quick notes on the Scarborough issue:

> Harry Roque, in his column today in Manila Standard and in an earlier article in another newspaper, stated that we can pursue our claim over the Scarborough Shoals before the ITLOS even without China's consent. He essentially relied on a reading of the the so-called "mandatory" or "compulsory" modes of dispute procedure in the UNCLOS. But his point is a bit eccentric, and needs clearer, further thought and examination.

The compulsory modes of dispute settlement is a misleading term actually and has confused a lot of people. It is compulsory because it refers a dispute to arbitration as the mandatory mode of settling a dispute whenever the parties have not come to an agreement as to what mode they have selected (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. As we know already, the Chinese has refused our invitation to bring the matter to dispute settlement under UNCLOS rules.

> Furthermore, China has made a clear declaration of their not being under the jurisdiction of ITLOS except upon clear written consent. This declaration was made under the auspices of Art. 298 of 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."

> Don't get me wrong: there's nothing I'd like better than to thrash China before the ICJ or ITLOS but that's international law. The reason why we neeed China's consent before we haul them off to the international courts is because of this concept that activists bandy about during rallies without actually understanding what it means: sovereignty. We can't make China do something without their consent (and vice-versa). The WTO dispute procedure is different because the required consent was already given upon a country's membership into it. This is not the same with ITLOS (or ICJ for that matter).

To actually claim otherwise is irresponsible because a) it could potentially subject the Philippines to an embarrassing international loss before an international tribunal due to ignorance of international law, with the residual effect of weakening our claim over the areas; and b) it makes our DFA officials and the rest of government look as if they've been remiss in their duties when they actually cannot proceed under ITLOS rules because of China's refusal. It also makes the country look like it's been sleeping on its rights, perhaps even estopped, if this were true when clearly it's not. Even Justice Carpio's claim of bringing China for conciliation is misplaced because even at that level we still need China's consent.

> Having said that, clearly we are presently left with little options in pursuing our claim. The best we can do (and should do) is to continue our legal preparations, keep vigilance over the territories, and implement our laws. We should also increase pressure, through diplomatic channels and media: that China's refusal to face us before any international tribunal is a clear indication of the weakness of their claim. Think Pacquiao vis-a-vis Mayweather.

> Finally, we should stop referring to proximity or the EEZ as basis for our claim over Scarborough. To claim EEZ as basis is tantamount to saying Scarborough is not our territory but merely an area that we have first right to exploit the resources found therein. In fact, Scarborough is not part of the EEZ but the EEZ is actually counted from Scarborough. Scarborough is part of Philippine territory because of discovery, occupation, and effective administration.

As correctly stated by the DFA in its paper released to media:

"The basis of Philippine sovereignty and jurisdiction over the rock features of Bajo de Masinloc is not premised on the cession by Spain of the Philippine archipelago to the United States under the Treaty of Paris.  The matter that the rock features of Bajo de Masinloc are not included or within the limits of the Treaty of Paris as alleged by China is therefore immaterial and of no consequence.

Philippine sovereignty and jurisdiction over the rocks of Bajo de Masinloc is likewise not premised on proximity or the fact that the rocks are within its 200 NM EEZ or Continental Shelf (CS) under the UN Convention on the Law of the Sea (UNCLOS).  Although the Philippines necessarily exercise sovereign rights over its EEZ and CS, nonetheless, the reason why the rock features of Bajo de Masinloc are Philippine territories is anchored on other principles of public international law.

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."