Sat. Jul 24th, 2021
Cartoon by Steven Pabalinas

By Ado Paglinawan

Today’s agendum is not really about Benigno Simeon Aquino III, but has been overtaken by his death. An old editorial cartoon by Steven Pabalinas shows the former administration bequeathing the “West Philippine Sea” box to the sitting president.

Duterte however has refused to continue Aquino’s policy, so the box now belongs to his custodian of lies.

Wikipedia says Beelzebub is a name derived from a Philistine god, later adopted by some Abrahamic religions as a major demon, among Canaanites associated with their god Baal.

In predominantly Christian theological sources, Beelzebub is another name for Satan. Demonology assigns him as one of the seven princes of hell. Dictionnaire Infernal, describes Beelzebub as a being capable of flying, thus the nomenclature “Lord of the Flies”.

In the Philippines, we have a Lord of Lies, and he could pass as “Beelzeboob”.

In his closing remarks during 1Sambayan’s town hall meeting entitled “Determining Our National Security and Foreign Policy 2022 and Beyond,” Retired magistrate Justice Antonio Carpio said President Rodrigo Duterte’s national security and foreign policy strategies have violated the Philippine Constitution.

On top of this, Carpio insisted that Duterte has failed both as the commander-in-chief of the Armed Forces of the Philippines (AFP) and as the chief architect of the country’s foreign policy for not defending the Philippines’ sovereignty, sovereign rights, and territorial integrity in the West Philippine Sea.

The tragic zoom conference occurred last Saturday, June 19.

Carpio submits his prognosis, which by now sounds like a broken record,“This defeatist national security and foreign policy of President Duterte concedes our island territories and sovereign rights in the WPS to China and must be reversed at the soonest possible time before more damage is inflicted on our national sovereignty, national territory, and sovereign rights.”

But let us subject his premises (in italics) to a fact check.

  1. The setting aside of the arbitral award that recognized Philippines’ sovereign rights in the West Philippine Sea in favor of loans and investments from China.

FACT: The Permanent Court of Arbitration (PCA) is private body. No arbitration occurred because the second party did not participate so the process moved forward like a court rather than an arbitral body. The problem is in international law there is no judicial remedy.

FACT: Abdul Gadire Koroma, former judge of the International Court of Justice, the principal judicial organ of the United Nations, said “On this case, the arbitral tribunal has no authority simply because not all of the related parties have agreed to authorize to evoke the arbitration…it is one-sided.”

Koroma who was attending a Experts Seminar on South China Sea Arbitration and International Rule of Law in The Hague, Netherlands at the time the PCA released its ruling, also made an distinction between the PCA which he said is an arbitral organ that is temporary and the ICJ, the principal and permanent judicial organ of the United Nations that decides on disputes between States.

The only similarity, he added, is that both are housed on the Peace Palace at The Hague. Koroma was ambassador of Sierra Leone to the United Nations and European Union before joining the ICJ.

FACT: Unlike the United States and Western Europe, China does not ask for reciprocal political, economic or social conditionalities to loans and investments it has extended to the Philippines. In fact, it has even gifted us three bridges: two bridges across the Pasig River and Davao the third one; the first two are scheduled to be completed this year. It has also donated relief goods whenever we face a natural disaster, arms and munitions for our military against the Maute Siege of Marawi City, and this year, 1 million doses of Sinovac jabs against Covid-19.

  • The Philippines’ arbitral win against China in the maritime dispute was “a mere piece of paper that can be thrown away in a trash bin.”

FACT: How can there a win when the award cannot be enforced? Despite all Carpio’s cartographic table books, boring podcasts and wild mainstream media-based propaganda stilted by Washington DC’s funding for the Center for Strategic and International Studies and its local agents the Stratbase Albert del Rosario Institute and the UP Institute for Maritime Affairs and Law of the Sea, and its local talking heads, the truth is PCA has no juridical or organic connection whatsoever with the United Nations. It is not UN-based, UN-sanctioned, UN-authorized.

That Carpio is now tiptoeing when comes to the United Nations can only be based on the statement of Stéphane Dujarric, the spokesman for the UN Secretary-General Ban Ki-Moon, who said on the very day the “award” came out – “the UN doesn’t have a position on the legal and procedural merits of the case or on the disputed claims”. 

FACT: Shockingly by Carpio’s own admission, “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.” Philippine Daily Inquirer, April 21, 2021.

The retired magistrate of course did not include the honorarium and fees paid by the Philippines for the deciding jurors and the American law firm who built up the case against China. For lawyers alone the Philippines spent $7 million. That established once and for all, that PCA was a “kangaroo” court.

  • “Critics called (Duterte for disregarding) the United Nations Convention on the Law of the Sea (UNCLOS), which China violates despite the Arbitral Award from The Hague-based Permanent Court of Arbitration (PCA) that invalidated Beijing’s sweeping claims in the region.”

FACT: Carpio’s lexicon has already changed over time since 2016 – for one, he no longer refers to the PCA as UN-based, but Hague-based.

FACT: Quoting ICJ Judge Koroma once again, “This is very clear. It is right for China not to accept arbitration and any verdict of the PCA. International law should not be used for some countries to achieve their foreign policy objectives.”

FACT: Duterte and China, on separate occasions and for different reasons both opted out of compulsory arbitrations, as UNCLOS allows. Every convention allows its member signatories to “harmonize” what they agreed to, with their respective municipal or domestic laws.

The problem with Carpio is that he regards UNCLOS as identical to domestic courts that is based on internal traditions and Constitutions where decisions are based on literal compliance based on what is written under the principle Dura Lex Sed Lex (the law may be harsh but that is the law).

FACT: International law is based on treaties, conventions or agreements between two more sovereign States. Adherence and compliance are based on common consent, that is Jus Cogens or meaning agreed norms. The basic difference with domestic law is the binding character of international law from consent of the contracting States.

This said, it infers therefore that when it comes to international law, Carpio is far from the “expert” his accompanying propaganda projects, but a freshman*.

In the first place, there is nothing in the much-ballyhooed PCA award that China can violate because the same is a unilateral ruling applicable to guide Philippine options. At the risk of redundancy, do not forget that China did not participate in the arbitration, so at worst China can only be accused of “ignoring” the decision.

  • FACT: Carpio argued that the country’s 200-nautical-mile Exclusive Economic Zone (EEZ) was “larger than the total land area.”

FACT: It depends however what Carpio refers to as Exclusive Economic Zone. If he meant in the Benham Rise east of the Philippines, that is very true. But exclusivity is very hard to establish in the South China Seas because of territorial disputes and overlapping claims. In fact, the UN does not accept any application for delimitation in the SCS.

The sole claim of Benham Rise area by the Republic of the Philippines, as part of its continental shelf, was confirmed by the United Nations Commission on the Limits of the Continental Shelf on April 12, 2012. In recognizing this claim, the UN increased the country’s sovereignty to extend 150 nautical miles (278 kilometers) of extended continental shelf increasing the Philippine territory from 30 million hectares from 43 million hectares.

In addition to that, UNCLOS entitles us sovereign rights to 200 nautical miles (370 kilometers) more of exclusive economic zone, in the absence of any disputes and conflicting claims. In fact under we have already renamed the area, “Philippine Rise”.

  • Although the Chief Executive announced an independent foreign policy that he said is neither pro-West or pro-China, 1Sambayan convenor Carpio said that “he would align Philippines to the ideological flow of China.”

FACT: We are a capitalist democracy. The ideological flow of China up to Xi Jing Pin has been communism. But China has proceeded towards democratic socialism, slowly abandoning the communist ideology but maintaining its centralized governmental structure.

Through socialism, it is now sharing its development gains with many countries through the Belt and Road Initiative, its gentler and kinder version of globalization where the poor, not just the capitalists, enjoy the fruits of growth. What’s wrong with this only haunts the minds of those who still believe in western models where the US and Europe control 60% of the world’s progress. Now that weight belongs to China and the Indo-Pacific.

  • Carpio also lamented Duterte’s instruction to the Philippine Navy “to patrol in the West Philippine Sea only up to our territorial sea and stop patrolling in our EEZ.” This, he said, is “in clear violation of the Constitution” that mandates the President to “protect the nation’s wealth in its Exclusive Economic Zone.”

FACT: The former magistrate has been growing too demanding and paranoiac that some are beginning to suspect early signs of Alzheimer. Carpio cannot supersede the Supreme Court on issues of constitutionality. Duterte protects whatever patrimony we have through bilateral talks and not gunboat diplomacy. We have no clear EEZ in the SCS. In fact, his being presumptuous attitude might endanger the gains we have earned in the area.

  • Duterte also believes that Chinese President Xi Jinping will “protect him from ouster as president of the Philippines in case of rebellion, coup d’etat, or mutiny by the Armed Forces of the Philippines. This is indirectly allowing the Chinese People’s Liberation Army to intervene in Philippine internal affairs.”

FACT: This is a figment of Carpio’s runaway logic, that deserves no edification.

1Sambayan social media advertorial of this townhall meeting by Zoom, announced that Jose Maria Sison would also deliver its closing remarks. In the United States and Canada, the name of Loida Nicolas Lewis was also included as one of the convening speakers.

Last June 8, Senator Panfilo Lacson issued a video statement declining 1Sambayan’s invitation to the meeting after the group earlier “precluded” him from its shortlist as a presidential candidate in 2022.

Frankly, I doubt it very much if the late president Aquino had anything to do with 1Sambayan. In hindsight, he must be already be too terminally ill to have even taken notice.

Abdul Koroma

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