Honorable Earl Warren, Former Chief Justice of the United States, once said, “It is the spirit and not the form of law that keeps justice alive.”
Indeed, what could be more painstaking than not having what is rightfully and legally ours? Now comes the decisive question that lingers in my mind and haunts me, “How are we to embrace the fruits of the law that have recognized that which has been within our country since its birth?”
The ruling of Permanent Court of Arbitration (PCA), an arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) which forms part of the law of our land, is explicit. Within the four corners of the 501-page document, the tribunal’s decision is clear and vibrant. There is no room for debate.
More than two years ago and after a three-year process, a fight took place in The Hague, Netherlands where the PCA declared in the long-simmering, historic case of Republic of the Philippines versus People’s Republic of China that “there is no legal basis for any Chinese historic rights, or sovereign rights and jurisdiction beyond those provided for in the Convention, in the waters of the South China Sea encompassed by the ‘nine-dash line’. The Tribunal sees no evidence that, prior to the Convention, China ever established a historic right to the exclusive use of the living and non-living resources of the waters of the South China Sea, whatever use it may historically have made of the Spratly Islands themselves. In any event, any such right would have been superseded by the adoption of the Convention and the legal creation of the exclusive economic zone. The ‘nine-dash line’ thus cannot provide a basis for any entitlement by China to maritime zones in the area of Mischief Reef or Second Thomas Shoal that would overlap the entitlement of the Philippines to an exclusive economic zone and continental shelf generated from baselines on the island of Palawan.”
The legal battle between Philippines and China has been envisioned as that of David versus Goliath but in an equal playground, we scored a victory. Philippines “won” over China, a nation with a population roughly 12 times our own. In sum, our country had an overwhelming validation and determination with finality, not only of our claims under the UNCLOS, but our specific rights in the West Philippine Sea.
July 12, 2018 marked the second anniversary of the said ruling. We have this recognition based on law as the very rock and foundation of our sovereign rights. Yet, this seemed to be not enough. What a Filipino would truly concern itself is the foreign policies and the platforms that would breathe life to this decision. The ruling is just a form; its life is the substance.
There are two aspects in the enforcement of the tribunal award: (1) enforcement of the award by the world’s naval powers with respect to freedom of navigation and overflight for military vessels and aircraft, including the conduct of military activities, in the high seas and Exclusive Economic Zones (EEZs) of the South China Sea. Such freedom of navigation and over-flight is a paramount national interest of the world’s naval powers and (2) enforcement of the award by the Philippines with respect to its exclusive right to exploit the resources of its EEZ in the South China Sea.
What appears to temper our national strategy to keep intact our national territory and maritime zones from foreign encroachment is the consideration of China’s emboldened reaction, militarization efforts and expansionist dreams.
In fact, even during the time in which these dispute resolution proceedings were ongoing, the Arbitral Tribunal found that China “has built a large artificial island on Mischief Reef, a low-tide elevation located in the exclusive economic zone of the Philippines; has caused—through its land reclamation and construction of artificial islands, installations, and structures—severe, irreparable harm to the coral reef ecosystem at Mischief Reef, among others; has permanently destroyed—through its land reclamation and construction of artificial islands, installations, and structures—evidence of the natural condition of Mischief Reef, among others; and has aggravated the Parties’ dispute concerning their respective rights and entitlements in the area of Mischief Reef and preservation of the marine environment at Mischief Reef.”
We are constrained to attain fullest enjoyment of our rights over our rich resources as we gauge on China’s response, attitude and possible aggression. All these factors are of impact which makes the ruling all the more, a public rhetorical statement alone, if not a lifeless one. In view of China’s adamant acts inconsistent with respect for the ruling, there arises the need to prevent the balloon of confrontation between these two nations of disparate sizes and ultimately, to mitigate them in the international scene.
Just recently, Malacañang said that a possible joint energy exploration with China in the West Philippine Sea would give the country energy security as oil prices continue to rise in the international market. Presidential Spokesperson Harry Roque said government is pushing for the signing of the deal during the visit of Chinese President Xi Jinping in Manila this November. Manila and Beijing is eyeing Service Contract 72, which covers Recto Bank, known internationally as Reed Bank, as the potential area for the joint exploration.
Article XII, Section 2 of the 1987 Philippine Constitution provides that “The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of waterpower, beneficial use may be the measure and limit of the grant. The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”
Such a joint exploration arrangement between Philippines and China is legally acceptable and allowed under the Constitution, provided that our country retains full control and supervision of the resources. Moreover, the Constitution allows the President to “enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.”
Our Department of Energy (DOE) acted along this direction when it entered into a contract with a consortium, led by Shell Philippines Exploration B.V., to operate the natural gas facility in Malampaya. This arrangement has proven to be highly beneficial for the country. The Malampaya consortium for the 2002 to 2013 period alone has remitted a total of P173.28 billion to the government as its share from the net proceeds from petroleum operations.
Outwardly speaking, there is to be no problem and alleys of concern with regard these commercial agreements for as long as the constitutional requirement of “full control and supervision by the State” is complied with. Given our country’s economic development, we are bound to tap new energy resources coming from the rich oil and gas deposits in the West Philippine Sea. In fact, the resource potentials covered by the Petroleum Service Contracts (PSCs) in the West Philippine Sea are larger than the Malampaya gas field. If the area covered by the West Philippine Sea PSCs is developed, our economy would certainly benefit and Filipinos would also immediately enjoy lower electricity costs.
It is critical, nonetheless, to make sure that the PSCs entered into by the DOE, on behalf of the Philippine government, with China will not undermine the victory we have made in The Hague.
In the sense of nationalism, the seemingly lax stance regarding the recognition of the true spirit of the aforementioned constitutional mandates and the consequent utilization of international law to the fullest as a defense of our sovereign rights must be abated. The posture of the administration has to be long-range policies which future administrations can continue and pursue; policies which solidify all the more the victory we had over possession of artificial islands, including China’s legal obligations to recognize traditional fishing rights of our fishermen and to end the destruction of the concerned reefs.
In a hospitable country like ours, forging closer ties with China resembles civilization and diplomacy but we must not stand less confrontational on matters of national interest to the detriment of our territorial integrity.
Territorial integrity must be non-negotiable. Any permission we grant to China as regards the management and exploration of the formerly contested waterways could mean an utter diminution and derogation of our sovereign rights and a dangerous recognition of that of China’s. Any joint development we agree upon with them might characterize a fatal assumption that China has rights over our waters, thereby defeating the very cause of the tribunal ruling. In the same vein that we project the respect we think we deserve, we must avoid adopting policy of appeasement that impacts our national interest and security.
In explaining the concept of joint development, China has officially declared that the concept of ‘setting aside dispute and pursuing joint development’ has the following four elements: 1) The sovereignty of the territories concerned belongs to China; 2) When conditions are not ripe to bring about a thorough solution to territorial dispute, discussion on the issue of sovereignty may be postponed so that the dispute is set aside. To set aside dispute does not mean giving up sovereignty. It is just to leave the dispute aside for the time being; 3) The territories under dispute may be developed in a joint way; and 4) The purpose of joint development is to enhance mutual understanding through cooperation and create conditions for the eventual resolution of territorial ownership.
Under China’s definition, the envisioned joint development is only within the EEZ of the Philippines and of other coastal states and never within China’s EEZ. Our “National Territory” comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. That the sovereignty concerned must belong to China portrays inconsistency with our constitutional definition of “National Territory” and with PCA’s affirmance of our “sovereign rights and jurisdiction” over our EEZ in the West Philippine Sea. In sum, we must be wary and not tender in accepting an envisioned joint development that is iniquitous and not symbiotic.
In addition, our failure to protest encroachment on our territory such as China’s creation of permanent outpost in the affected shoal may be construed as abandonment of our rights. Under the fundamental tenets of public international law, such abandonment can be considered a legitimate means of acquiring territory. A prompt protest against any violation of the tribunal award must be made formally to prevent any opposing state from claiming the defense of acquiescence by the Philippines. Assertion alone of our rights in all foreign dealings is not enough for it is equally imperative for our head of states and diplomatic officers to be cautious with their unilateral declarations which have binding effect on our maritime rights upon acceptance by other states. No statement in unequivocal terms must be uttered which could give a tribunal, council or court in the future a single basis enough to rule that our country has acquiesced to other states’ occupation. Thus, their action, declaration and statements must continually be carefully studied, scrutinized and responsibly given to prevent implications signifying abandonment of what we have won in the arbitration case.
While the above notions create a plausible head start, analysis of the facts reveals a more complicated reality. The need to properly manage the differences internationally still arises. The need to strengthen the exercise of our sovereign rights through more proactive measures remains a must. And this does not happen overnight. The foremost consideration is that the sacred precepts of international must be vigorously understood. Unprecedented appreciation and awareness of international law have to pave way into the hearts of every Filipino.
Supreme Court Justice Antonio T. Carpio once said, it is every Filipino’s duty to inform the other people of the world “that China’s compliance with the Award is essential to the survival of UNCLOS as the governing law for the oceans and seas of our planet.” China’s noncompliance would mean the “collapse of the rule of law in the oceans and seas,” he warned. “What will prevail will be the rule of the naval canon.” 
The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
The United Nations (UN) Charter has outlawed war as a means of settling disputes between and among states. “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.”
Our country is committed to renouncing war for territorial aggrandizement. Even if we are to work under the framework or argument that war is originally accepted as a legitimate means of compulsion as when before it was outlawed, overspending in war as a defense, bearing in mind the economic growth of our country, is not the wisest decision. Our existing military infrastructure could only humbly hope to give a fight with that of China who, together with France, Russia, the United Kingdom, and the United States (U.S.), belongs to the UN’s Permanent Big Five and has formidable influence worldwide. Moreover, the inevitable consequences of war might impliedly and positively adjudged possession of China over ours, if they be victorious.
As members of the United Nation, China and Philippines have to abide to this significant principle embodied in the UN Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”
Our public servants and legal warriors can pursue an effective coercive force to remind our neighboring states of “the ruling that could be” through utilization of international law, without being alarmed of the parity in military power, political influence or economic status of other states.
The proper use of the corridors of diplomacy that must be adopted by our government is a resolution involving amicable methods, and not the kind of diplomacy that tends to abandonment of our maritime rights.
In the international scene, the amicable methods include negotiation, inquiry, good offices, mediation, conciliation, judicial settlement and action by regional organizations, including the Association of Southeast Asian Nations (ASEAN), all with the view to a just and orderly adjustment of disputes. Considering China’s unwavering stand and while the aforementioned methods are not conclusive, the results of such methods, nevertheless, play a strong moral influence in the reconciliation and settlement of the apparent conflict. Over time, the results could create all together an authoritative interpretation of the UNCLOS, thus fortifying the Philippine’s victory. On the other hand, upon prosperity of the talk, agreements can be reached and treaties can be formalized, without giving up the protection due our resources.
If none of the aforementioned methods succeed, our country can submit the matter to the United Nations which may be asked or may decide on its own authority to take a hand in the settlement. The Security Council may recommend appropriate measures and methods of adjustment or recommend such actual terms of settlement as it may consider appropriate. Where the terms of settlement are rejected by both countries, the Security Council is empowered to take preventive and enforcement actions.
Our country is likewise provided an avenue under international law to sue in a jurisdiction that ratified UNCLOS in case China performs act of ownership within our EEZ. Moreover, United Nations resolution urging China to comply with the 2016 ruling can be pressed upon. Action for recovery damages may be pursued for instances China has interfered with the exercise of our rights as regards fishing, oil exploration and navigation, and inflicted severe harm on our marine environment, thereby failing to protect and preserve and endangering the fragile coral reef ecosystem. Article 300 of the UNCLOS provides that “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” It goes without saying that China is obliged to comply with the Convention and the tribunal ruling in good faith.
Our country can further move for objection before the International Seabed Authority (ISA), an intergovernmental body established to regulate all mineral-related activities in the international seabed area beyond the limits of national jurisdiction, to forestall China from gaining exploration permits to mine in “the Area.” The seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction, also referred to as “the Area”, as well as the resources of the Area, are the common heritage of mankind. Permits to mine “the Area” previously granted can be suspended upon proper motion on the ground of China’s refusal to comply with its obligations under the dispute settlement provisions of the Convention despite acceptance of benefit from the seabed provisions of UNCLOS.
We also have a right to delineate our Extended Continental Shelf (ECS) from Luzon and file our claim with U.N. Commission on the Limits of the Continental Shelf (CLCS). The purpose of the Commission is to facilitate the implementation of the UNCLOS in respect of the establishment of the outer limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Under the Convention, the coastal State shall establish the outer limits of its continental shelf where it extends beyond 200 M on the basis of the recommendation of the Commission. The Commission shall make recommendations to coastal States on matters related to the establishment of those limits; its recommendations and actions shall not prejudice matters relating to the delimitation of boundaries between States with opposite or adjacent coasts. China can raise two grounds to oppose the Philippine ECS claim. First, China can again raise its nine-dashed line claim but the CLCS is bound by the Award of the Arbitral Tribunal. Second, China can claim that the Philippine ECS overlaps with China’s ECS, but this means China accepts that the Philippines has an EEZ from Luzon. If China does not oppose the Philippine claim to an ECS, then the CLCS will recommend to the Philippines the adoption of its ECS. This is the dilemma that China will face if the Philippines files an ECS claim. Being one of the institutions created under the UNCLOS, it is bound to take cognizance of the PCA ruling; hence, a favorable recommendation as to adoption of our country’s ECS is highly probable.
The support of community of nations as well is of transcending importance. Whether it be through multilateral or bilateral agreements with other states in the UN or ASEAN, our connection with our neighboring states must be fostered. Our partnership with the United States under the Philippine-United States Mutual Defense Treaty is of big help in cases any armed attack on a Philippine public vessel or any other security challenges occurred.
The U.S. has declared that its military forces will continue to operate in the South China Sea in accordance with international law. The U.S. Chief of Naval Operations John Richardson stated: “The U.S. Navy will continue to conduct routine and lawful operations around the world, including in the South China Sea, in order to protect the rights, freedoms and lawful uses of sea and airspace guaranteed to all. This will not change.” France has urged the 27-nation European Union to coordinate naval patrols in the South China Sea to ensure a “regular and visible” presence in the disputed waters illegally claimed by China. French Defense Minister Jean-Yves Le Drian said that the protection of freedom of the seas is vital from an economic standpoint and is concerned a loss of this right in the South China Sea might lead to similar problems in the Arctic Ocean or Mediterranean Sea. Russia has recently adopted regulations requiring all foreign vessels to secure prior permission from Russia before sailing through its “water area” in the North Sea Route. British Ambassador to the U.S. Kim Darroch disclosed that British Typhoon fighter jets that visited Japan in October 2016 flew over the South China Sea in their return flight to assert freedom of overflight. He added: “Certainly, as we bring our two new aircraft carriers on-stream in 2020, and as we renew and update our defense forces, they will be seen in the Pacific. And we absolutely share the objective of this U.S. administration, and the next one, to protect freedom of navigation and to keep sea routes and air routes open.” All these support will provide a strong legal deterrent towards possible China invasion and an incremental move towards gaining more respect of the ruling.
Lastly, our membership with international tribunals such as International Criminal Court (ICC) must not be withdrawn. Justice Carpio has once said that Philippines could sue China’s leaders, led by President Xi Jinping, at the ICC for alleged crimes against humanity should China invade Philippine-occupied Pag-asa Island or Panatag (Scarborough) Shoal. Under the Rome Statute of ICC, the Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; and (d) The crime of aggression. Such invasion and establishment of military base on the shoal is tantamount to the crime of aggression which is to be the cause of our action.
Going forward, now comes the ultimate question, “What does it take for a ruling to be enforced?” Does it take brilliance? Yes, legal brilliance can move mountains but without pushing through our sovereign rights with nationalistic fervor, the ruling would be just words, bereft of life. More than anything, it is not only our maritime entitlements but also the dignity of our nation that is at stake.
For our country, what is at stake in the South China Sea are: (1) about 80 percent of its EEZ comprising 381,000 square kilometers of maritime space, including the entire Reed Bank and part of the Malampaya gas field; and (2) 100 percent of its ECS estimated at over 150,000 square kilometers of maritime space. With China’s continued militarization in South China Sea, it is not impossible to foresee further violation of the exclusive right of the Philippines to its EEZ, other than those committed during the pendency of the resolution of the dispute proceedings.
Currently, tentative progress of cooperation is being carried out, particularly the adoption of ASEAN-China Single Draft South China Sea Code of Conduct Negotiating Text (SDNT). On August 3, the foreign ministers of the ten member states of ASEAN and their Chinese counterpart announced agreement on SDNT that will serve as the basis for the adoption of a Code of Conduct in the South China Sea. Under Section 2 on General Principles, Malaysia inserted the standard legal caveat that: The Parties further acknowledge that the COC does not address nor affect the Parties’ position on legal questions relating to the settlement of disputes, maritime boundaries, or the permissible maritime entitlements of the Parties under international law of the sea and enshrined/reflected in the 1982 UNCLOS. A very large portion of the SDNT is devoted to the prevention, management, and settlement of disputes in the South China Sea among the parties. The SDNT, however, does not contain any specific reference to the binding dispute mechanisms included in UNCLOS Annex VII. With respect to dispute settlement, Indonesia offered the following: The Parties agreed, as appropriate, to resort to the High Council of the Treaty of Amity and Cooperation (TAC) at the consent of the Parties concerned, to settle any dispute relating to incidents that many arise in the South China Sea. The present text of the SDNT is replete with references to international law in general and UNCLOS in particular. Yet it does not mention the duty of state parties to UNCLOS to immediately comply with awards issued through arbitral proceedings established under Annex VII. The SDNT is also a work in progress that is slated to go through at least three readings to create a final Code of Conduct (COC) in the South China Sea.
While the anticipated COC may not resolve the disputes, the COC remains intended to manage disputes and avoid conflict through direct resolution among the parties. It is hoped that the ASEAN-China dialogue and the resulting document would become the major steps towards peacefully managing the South China Sea disputes, upon proper delineation of the general rules of behavior within a geographic area, the dispute settlement mechanisms and effective regime on fisheries management and oil and gas development.
To date, differences between the concerned parties remain considerable and the final agreement on an effective Code of Conduct is still paving its way.
Amidst all the progress and uncertainty, one thing remains certain: In a cradle of noble heroes like ours, there is no empty victory to speak of. My faith in my country and my fellow countrymen still perseveres. The ruling can be enforced. The ruling can make it through. And while the ruling’s life seems unapparent, the Filipino’s unwavering spirit in the battles and struggle it has faced and will be facing symbolizes that a day would come when it would “vividly” rise through the dust like a phoenix.
Yes, without a doubt, the ruling is alive.
It will never be dead; not in this lifetime.
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