First of a Series: Deliberately Keeping the Truth from the People can mean Treason as Betrayal of Public Trust
I was not really keen at being distracted by Antonio Carpio’s bigoted perceptions about China, but when he started slinging at Antonio Parlade, today’s Filipino folk hero next only to President Duterte, I said no way this sinophobe can have a safe passage.
The more a liar writes, the more he records the footprints of his wrongdoings.
It is former Associate Justice Antonio Carpio who has been a typecast at defending an arbitral ruling for many of his positions in the South China Seas debate, but he now appears to be singing a different tune.
In a statement to the Philippine Daily Inquirer, the Associate Justice who never became Chief, said:
“The first issue — that the arbitration was filed in the wrong court—was totally laughable and was simply ignored by the Philippine legal team.
“As stated in the Philippines’ initiatory pleading called the Statement of Claim, the arbitration was filed under Article 281(1) of Unclos, which “allows recourse to the procedures provided for in Part XV, including compulsory procedures entailing binding decisions under Section 2 of Part VI.”
“There was no mention whatsoever of the Permanent Court of Arbitration.
“As every international lawyer worth his attaché case knows, the PCA is not a court but a registry that provides, for a fee, a physical venue for hearings, as well as administrative and secretarial services, to those wishing to hold their arbitrations in any of the various offices of the PCA worldwide.
After going to town for half a decade, peddling the lie that the Permanent Court of Arbitration was of any consequence, the Associate Justice who never became Chief, now finally admits it is not a court, but simply a registry.
This is not be a simple case of a Freudian slip, a senior moment, but a classic landmark of intellectual dishonesty.
Unwitting he made a fauxpas, he proceeded to his second argument to improvised on “compulsory procedures”.
“The second issue — that China’s consent is needed for the arbitration to proceed — is also laughable because as every student of the Law of the Sea knows, Unclos provides for a compulsory arbitration.
“Every state that ratified Unclos gave its consent in advance, upon ratifying Unclos, to be sued under the compulsory dispute settlement mechanism of Unclos.
“This is embodied in the Unclos arbitration provision which states, “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”
Not too fast, Mr. Associate Justice who never became chief, not everybody has time to read all of the Unclos provisions. I am not allowing you escape this time. If you do not know how treaties operate to form part of international conventions, how do you expect the ordinary Filipino to be more knowledgeable than you?
The impression Carpio gives is that there is no way out of the compulsory provisions of Unclos (in the same way he has helped mislead the public into thinking that the Unclos provision extending economic zones to 200 nautical miles off one’s shore lines is automatic, a self-triggering “exclusivity” to the utter disregard of commonsense that dictates such zones have to be “shared” when conflicting claims of other nations delimit it).
Carpio must have been sick with flu when his law classes were learning that dogmaticism is mutually exclusive with treaties, conventions and agreements that are products of diplomacy best served with broadmindedness, not legalisms.
A reservation in international law that is a caveat to a state’s acceptance of a treaty, is allowed by the 1969 Vienna Convention on the Law of Treaties, under Article 2 (1) (d), which it defined as a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. Of late, some treaties like Unclos, allow caveat declarations even sometime after.
In effect, a reservation allows the State to be a party to the treaty, while excluding the legal effect of that specific provision in the treaty to which it objects.
Unclos has been the recipient of such declarations by 33 countries upon their signature, 67 countries (including China and the Philippines) upon ratification or accession and 33 countries (including China) anytime thereafter.
No treaty can be inflexible if it wishes to last long. This is why modern treaties allow signatory states to harmonize the provisions of the signed treaty with their domestic or municipal laws. In case of conflict between the treaty and municipal laws, the latter prevails.
When countries affix their signature into a treaty, especially when it is multilateral, it does not necessarily mean that they are abandoning their own sovereignty in absolute favor of an international accord. Leaders of government who even suggest that, often lose their mandate overnight.
In fact, as in cases where treaties or international agreements eventually works to undermine the sovereignty of any country-signatory, that country can go to the extent of abrogating its earlier affirmation. Such was the case of the Philippines when it earlier resigned from the International Criminal Court.
What Carpio do not mention is that specifically in Article 298, paragraph 1, Unclos allows States and entities to declare that they exclude the application of the compulsory binding procedures for the settlement of disputes under the Convention in respect of certain specified categories kinds of disputes.
In 2006 or seven years before the Philippine filing before the PCA, China declared that “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”, which clearly excludes disputes concerning maritime delimitation and other subject-matters from the applicability of compulsory procedures.
In short, China opted out of this Unclos provision.
Weigh this Mr. Associate Justice who never became Chief, to what you said, and I requote. “Every state that ratified Unclos gave its consent in advance, upon ratifying Unclos, to be sued under the compulsory dispute settlement mechanism of Unclos.
My goodness, this is where the proverb that little knowledge is dangerous, apply foursquare. Just because you have become a prominent magistrate in the country’s Supreme Court, you bully the general public into believing that you are an authority. Be reminded, you are no longer wearing those shining robes,
What compulsory procedure is Mr. Associate Justice who never became Chief, referring to, when under the very same treaty, China has been allowed to opt out?
If that failed to impress my readers, handle this – the Philippines also opted out of compulsory arbitration.
Watch this video of Ambassador Rosario Gonzalez Manalo, transcript provided: https://www.youtube.com/watch?v=I8586-oAWqM
“If you study very carefully international law, an arbitration was not set up correctly, when we claimed our right to the Kalayaan Group of Islands. I was breaking my brains trying to find our from international law books and authorities, what is an arbitration tribunal.
“Everywhere, an arbitration calls for three parties. The two who are claiming whatever that claim is, and between the two, the selection of an umpire.
“When arbitration is carried out, it is always voluntary. Under the UN charter, it is always voluntary.
“However, in the Unclos, there was a provision, a mechanism for solving (disputes) that made arbitration compulsory. But the Philippines when we ratified and approved the Unclos, we opted out of that provision, which means we will not use that provision with anybody.
Without even us talking to the Chinese, equally the Chinese opted out of that provision.
“So, both the Philippines and China cannot invoke compulsory arbitration under the Unclos as both had opted out. So, what is the remedy?
“Bring it to the UN for voluntary arbitration. The Philippines wanted it. But you cannot tell China you got to do it.
“But what did we do, we proceeded and set up an arbitration panel.
“That was not even an arbitration panel, it was a Philippine panel handpicking the people who will deliberate the very issue that we want and paying for them for their time. Now if they were paid, whom do you think they would give a favorable decision?
“That is why China is questioning (the process).
“Please understand., I am not trying to be traitor to my country. I love my country. But it is not right.”
“The fact that that decision was given, it brought to the attention of the world, that we have a basis to do some claiming. It is just a position made by the Philippines, but it does not bind China or anybody else for that matter.”
Whom do we believe? The Associate Justice who never became Chief, or the Ambassador who has had 62 years in the Department of Foreign Affairs performing in various capacities in multilateral fora and bilateral relations. Manalo became the first Filipina to pass the Philippines’ career foreign service officer examinations, and now occupies a seat in the UN Treaty Body on Gender Equality and Womens Rights.
Whom do we believe? Carpio who as a septuagenarian is still a student of international law, or Manalo who has been teaching foreign relations, diplomacy and international law at the Ateneo de Manila University, De La Salle University-College of St. Benilde, Miriam College, Philippine Women’s University, University of Asia and the Pacific, National Defense College of the Philippines, the Foreign Service Institute, and the University of the Philippines, for the longest time.
But since Carpio has now categorically dismissed the Permanent Court of Arbitration as a registry, as such not likely to be the source of a categorical imperative that we own or have sovereign rights in the area, he might as well show us internationally accepted documents (besides worthless maps) or awards proving we own any territories or that we have sovereign, not shared, rights over those zones? What fiat, edict or award also gives you international recognition to you so-called West Philippine Seas?
So, this cannot be incompetence, anymore.
His lawfare sucks, feeding on prevarications that have placed this country under clear and present danger of being dragged into a violent confrontation with other countries that the former Associate Justice is lawyering for.
Before that, treason has been known by many other names.
For more about the lady, watch this video https://www.youtube.com/watch?v=_zzhTQ5qeAA