It is a brilliant strategy. If the case the Philippines would present were about maritime boundary delimitations, i.e., China staking claim to areas outside of the limits described by UN Convention on the Law of the Sea (UNCLOS), then we would lose even before we started, because that kind of dispute is excluded from the UNCLOS compulsory dispute settlement system, and China could cite that as a reason to refuse arbitration. My impression was that China was pretty sure that would be our strategy, and was pretty cocky about the outcome.
But as it turns out -- and here is where Carpio must have come in -- the Philippines isn’t mentioning a word about maritime boundary delimitations. Instead, it brings the fight all the way into the Chinese camp. It asks the UN arbitral tribunal to rule on whether China’s so-called 9-dashed line claim (under which practically all of the South China Sea is considered its inland waters) or its domestic laws can take away the Philippines’ exclusive economic zone, and extended continental shelf in the WPS.
The Philippines is also asking the arbitral tribunal to rule whether China can occupy and erect structures on fully submerged reefs and on low-tide elevations; whether China, again under its 9-dashed line claim or domestic laws, can unilaterally appropriate for itself maritime space in the South China Sea beyond the exclusive economic zone of any coastal state (i.e., the high seas, which under UNCLOS no state can subject to its sovereignty).
According to Justice Carpio, the Philippines comes to the arbitral tribunal with "clean hands," because our 2009 Baselines Law scrupulously followed the UNCLOS. China, on the other hand, does not, because its 1998 Law on Exclusive Economic Zone and Continental Shelf has provisions that are in gross violation of the UNCLOS. Which is why the Philippines is also asking the arbitral tribunal to direct China to bring its maritime laws in conformity with UNCLOS.
In other words, China is obviously the bad guy here.
Carpio’s speech also discusses Plan B -- what if (and this is a very big if, he says) the arbitral tribunal rules that an island in the Spratlys is capable of sustaining human habitation or economic life of its own, thus generating an exclusive economic zone? Carpio, covering all options, is also prepared for that eventuality: that the dispute then becomes a maritime boundary delimitation dispute, in which case the arbitral tribunal no longer has jurisdiction, because China will not submit to arbitration.
Under those circumstances, Carpio points out, compulsory conciliation, as provided in UNCLOS, will kick in -- and China cannot opt out of that. And here, Carpio also points out, the compulsory conciliation commission will have to consider Palawan’s more than 600-mile coastline versus the less than one-mile opposing coastline of the largest island in the Spratlys -- and distribute the economic zones proportionally.
Carpio is pretty sure we will have the law on our side. Justice is another matter, he says, because apparently the UNCLOS does not provide for enforcement measures (Carpio calls it a black hole in the Rule of Law), and we certainly can’t do it ourselves. Even if we brought it before the UN Security Council, China has veto power there.
Is it all for naught, then?
Of course not, says Justice Carpio. We have one last recourse -- the appeal to world opinion. And this is where Carpio challenges the PLM graduating class to make it their mission to help shape world opinion that a nation that refuses to follow the Rule of Law should be considered a rogue nation, an outcast in the community of nations. And China, as an aspirant to global leadership, will think twice about flouting that opinion.
But while Carpio’s PLM commencement address made the headlines, an at least equally important speech of his, did not, more’s the pity. These were remarks delivered at the launching of UP’s Institute of Maritime Affairs and Law of the Sea (IMLOS) two months earlier.
On this occasion, Carpio emphasized the importance of an IMLOS, because, he asserts, the most important foreign policy issue that the Philippines will face in the next 25 years or more will be the dispute with China in the West Philippine Sea. If China succeeds in enforcing its 9-dashed line claim, he says, it will be a national catastrophe: we stand to lose, in the Reed Bank alone (which is within our economic zone), resources amounting to almost one-half of the total "proved and provable" oil and more than one-fourth of the total natural gas resources in the South China sea. And that’s not counting the fishery resources in the area, which account for at least a quarter of our total fishery resources.
What makes winning our dispute with China even more crucial, according to Carpio, is that the mineral resources in the Philippine Exclusive Economic Zone (EEZ) will be our only remaining natural resources, "after squandering our inland natural resources above and below the ground."
He elaborates: "We allowed loggers to denude our forests in exchange for negligible forest fees. We our allowing our inland mineral resources to be extracted for a pittance. In the words of the 1995 Mining Act, ‘the total government share in a mineral production agreement shall be the excise tax on mineral products.’ Under the Tax Code, the excise tax is a mere 2% of the market value of the mineral ore at the time of removal from the mine site. We are the only country in the world giving away our mineral resources almost for free."
Carpio urges the IMLOS to not only craft the legal strategy to protect our EEZ from encroachment by foreign countries, but also to craft a fair and reasonable profit-sharing formula between the State and the private companies that will exploit the mineral resources in our EEZ. Because, he asks, "of what use is protecting, at great effort and expense, our EEZ from foreign encroachment if it will not benefit the Filipino people?" Good question.
And getting that fair share will accomplish another objective: we will have all the money we need to acquire and maintain a "minimum credible self-defense force," without which, he avers, we may still lose our EEZ in the WPS even as international law and world opinion may be on our side.
He makes eminent sense. He may have not gotten the position he deserved. But he stands mighty tall in the Supreme Court.
source: Businessworld Column - Calling A Spade by Solita
Collas-Monsod
Calling A Spade
Solita Collas-Monsod
Solita Collas-Monsod
Calling A Spade
Solita Collas-Monsod
Solita Collas-Monsod
No comments:
Post a Comment