Mon. Sep 27th, 2021
How enforce one’s territorial claim? Cartoon by Steven Pabalinas.

By Adolfo Q. Paglinawan

Part of a Series of 2

The men of the last Benigno Simeon Aquino III are locked in a gruesome debate when it comes to the 2016 ruling of the Permanent Court of Arbitration.

Earlier, responding to a column of Antonio Carpio, retired associate justice of the Supreme Court, Florin Hilbay, former solicitor -general went to the extent of saying that the magistrate was merely an “observer” and had “no skin in the game” as far as the noisy arbitration case is concerned.

Last June 7, 2021, in a bit of fresh air on the Philippine position in the South China Seas, former Associate Justice Francis Jardeleza came out with an article in the Philippines Daily Inquirer, headlined “Baselines law the best way to enforce arbitral award”.

Courtesy: Palawan Daily

In a letter, Jardeleza urges President Rodrigo Duterte to certify to Congress a proposed legislation amending RA 9522 and providing an appropriation for enforcement “by way of defending our rightful gains under the award and international law.”

The proposed law has identified 128 maritime features in the West Philippine Sea and of these maritime features, it mentioned 35 offshore rock or high tide features. The proposed law reiterated the country’s continuing sovereignty, sovereign rights, and jurisdiction as appropriate over these features.

These areas include those within the Kalayaan Island Group or Spratly Islands and the Bajo de Masinloc or Scarborough Shoal.

It stressed the country’s rights “over the territorial sea and contiguous zone of each maritime feature identified in this Act, as may be applicable, shall be exercised in accordance with Philippine laws and international law, particularly the United Nations Charter and the UNCLOS.”

The proposed law also states that provisions of Presidential Decree No. 1596, Republic Act No. 9522 and Republic Act No. 3046, as amended by Republic Act No. 5446, and all other laws, decrees, executive orders, rules, judgments, and issuances inconsistent with this Act are hereby amended or modified accordingly.

It also mandates the National Mapping and Resource Information Authority (NAMRIA) to produce and publish charts and maps of the Philippines reflecting this Act within six months of its effectivity.

In drafting the proposed law, Jardeleza was assisted by international academics Dr. Melissa Loja and Professor Romel Regalado Bagares.

Batongbacal rebuttal: A Presidential proclamation will do

Two days after, Professor Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, issued his disagreements with Jardeleza in a press release appearing at ABS-CBN news website, saying, “There is no need to amend the country’s baselines law in order to enforce the 2016 arbitral ruling that junked Beijing’s claim to the entirety of South China Sea.”

Batongbacal asserted that Republic Act 9522, the law which modified a series of legislation defining the archipelagic baseline of the Philippines, is already “adequate” because Section 2 of the law states that Bajo de Masinloc or Scarborough Shoal and Kalayaan Island Group or Spratly Islands are determined as “Regime of Islands” under the Philippines.

“Now, that’s already sufficient authority for the Philippine government to go ahead and identify the maritime zones around these islands as well as the baselines, which are really just normal baselines,” he said.

A baseline refers to that line along the coast of a State from where its maritime jurisdiction may be measured.

“In normal baselines, you do not need to legislate. All you need to do is measure all the maritime zones around it,” he added.

For Batongbacal, a presidential proclamation as suggested by retired Senior Associate Justice Antonio Carpio is a “better exercise of sovereignty” instead of amending the law. “A proclamation means that we are merely implementing the law and that means it’s also an exercise of sovereignty,” he said. 

“In fact, it’s even a better exercise of sovereignty in a way because we’re only implementing what’s already there. Unlike legislating baselines, it’s as if they weren’t there before. That should not be the case.”

Batongbacal crudely maintained that even if the Philippine government passed a new baselines law, it would not affect China’s stance in the disputed waters.

“China might just come up with its own baselines as well around these islands, which will further complicate the situation,” he added.

Jardeleza lobbying Duterte

Ignoring Batongbacal, Jardeleza appealed to Duterte last July 5, 2021 to pay attention to amending the baselines law, especially on his upcoming State of the Nation Address (SONA).

The former associate justice was enthused because three days after he wrote the President Duterte expressed willingness to look into the proposed amendments. In a televised presidential briefing last June 10, Presidential Spokesman Roque said “The President immediately asked that it be subjected to complete staff work and he was very appreciative of the suggestion.”

If the President backs the proposal, Roque said he would suggest the inclusion of the measure in Duterte’s next State of the Nation Address.

That the President did not announce any updates during the SONA, merely indicates that the complete staff work is still in the works.

Of course, this disappointed American-leaning media like Rappler, and hawks in favor of a Philippine-China confrontation like Antonio Carpio and Albert del Rosario because all Duterte said in the SONA was “…asserting the country’s rights in the West Philippine Seas would court war with China.”

Batongbacal could not hold his peace and goes to the offensive posting insinuations on Facebook, that an alternative analysis on the best way to move the discussion on Philippine interests in the West Philippine Sea, boosts “Chinese misinformation.”

Jardeleza warned the public: “Labeling is against legal scholarship.”

 To make matters worse, Batongbacal charged that its promoters are wrong to say that the 2016 South China Sea Arbitral Award eliminated Philippine sovereignty and possession of the Kalayaan Island Group (KIG) by abolishing Presidential Decree 1596, the 1978 Marcos edict that created the KIG.

The former associate justice said Batongbacal’s charges are a gross misrepresentation of our view verging on intellectual dishonesty. “We thought it best to respond by bringing the focus back to the merits of the issue,” he clarified.

Jardeleza clinically enumerated the damning paragraphs of the Arbitral Tribunal’s ruling:

  • In paragraphs 573 through 574 the Arbitral Tribunal declared that there is nothing in the UN Convention on the Law of the Sea, or in customary international law, or in the history of the South China Sea, that would justify the adoption of baselines or boundaries enclosing the Spratly Islands as an offshore archipelago.
  • In paragraph 574, the Arbitral Award specifically referred to the Philippines and declared that “even the Philippines could not declare archipelagic baselines surrounding the Spratly Islands.”
  • Paragraph 575 declared that UNCLOS excludes the possibility of employing straight baselines … with respect to offshore archipelagos not meeting the criteria for archipelagic baselines.”
  • Paragraph 576 declared that “notwithstanding the practice of some States to the contrary, the Tribunal sees no evidence … of a new rule” that would permit the treatment of the Spratly Islands as an offshore archipelago.

Further, the magistrate said “It is clear that the continued treatment of the Spratly Islands as Troung Sa (Vietnam) or Nansha Qundao (China) or Kalayaan Island Group (Philippines) would not be consistent with the Arbitral Award. Thus, to maintain its claim over the Spratlys, the Philippines needs a new baselines law pertaining to specific rocks in the area.”

 Jardeleza applies some sarcasm accepting Batongbacal correctly stating the obvious that the Philippines effectively occupies Pag-asa, Patag, Lawak, Kota, Panata, Likas, Parola and Rizal and that it has an outpost on Ayungin Shoal using the BRP Sierra Madre.

But he quickly qualified that our occupation of these features does not however extend to the other features that we must claim as territory, including those occupied by China, Vietnam and Malaysia. With respect to these other features, the Philippines must perform an act of sovereignty.

As the use of force or deployment of the military to these features are precluded by international law, the Philippines must exercise sovereignty through legislation pertaining specifically to these features.

To what Batongbacal refers to as prior occupation by the Philippines of nine (9) features that was consolidated through the enactment of PD 1596.

In that, Jardeleza says the professor therefore admits that legislation is an act of sovereignty.

 Making him look like a two-bit lawyer, Jardeleza chided UP Professor Batongbacal saying he “must be consistent. He cannot mock Philippine law enforcers that they are not enforcing the Arbitral Award while insisting that PD 1596 be maintained even when this is inconsistent with the Arbitral Award. “

Batongbacal cannot cherry pick, the magistrate said exposing the former’s twisted and runaway reasoning.

 Jardeleza demonstrate brilliant judicial analysis: “Whatever it is that PD 1596 established – whether boundaries or baselines – its effect is obvious: it created a single territorial unit or, if you will, an offshore archipelago. Even as the Philippines never mentioned the KIG during the arbitration, the Arbitral Tribunal, in the exercise of its due diligence obligation under Article 25 of its Rules of Procedure, made sure to declare that no littoral state, including the Philippines, may claim the Spratly Islands as a single unit.”

 After which, former associate justice of the Supreme Court reduced Batongbacal to a minced meat, demolishing the latter’s intellectual bankcruptcy:

“We have suffered five years of intellectual paralysis over the South China Sea dispute.

“It is time to invigorate our intellectual life by starting our culture of critical analysis and independent thinking.

“Let us begin by looking beyond labels and into the hard facts and law, beginning with the text of the Arbitral Award.”

(To be continued. Part 2 on August 5, 2021)

JARDELEZA BACK UP HILBAY VS CARPIO

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