By Adolfo Q. Paglinawan
Second of a Series of 3
Former Associate Justice Francis Jardeleza said “With respect to the features already occupied by the Philippines, Presidential Decree 1596 indeed reinforces our claim, especially to Pag-Asa or Kalayaan as this is named in the law.
“But as to the individual features being claimed but not occupied by the Philippines or named in PD 1596, title to them can only be based on actual exercise of sovereignty, such as a new baselines law identifying them by name and coordinates.”
Jardeleza cited that in Nicaragua v. Colombia (para. 81-82), public legislation and administration as evidence of acts of effectivités must pertain specifically to the disputed territory rather than a mere “group of islands.” The magistrate added that this is the intertemporal rule of international law applicable to the South China Sea.
PD 1596 does not meet this rule. A new baselines law will.
Territorial issues beyond Award
It goes without saying that territorial issues are beyond the scope of the Arbitral Award.
However, the effect of paragraphs 573 through 574 reconfigures the disputed territory from one characterized as an offshore archipelago onto individual rocks with territorial seas.
The Arbitral Award does not decide the conflicting claims to these features but it compels a redefinition of these claims to conform to the features as individual rocks rather than an offshore archipelago.
Thus, PD 1596 is now obsolete.
According to Jardeleza, Professor Jay Batongbacal must read the Admissibility Award, the Arbitral Award and all its annexes. If he does, he will realize that the Philippines itself represented to the Arbitral Tribunal that the features in the SCS are individual rocks rather than an offshore archipelago.
On the basis of this representation, the Arbitral Tribunal accepted jurisdiction over the Philippine submission. In fact, the discussion in paragraphs 573 through 576 is in connection to the issue of whether the features in the SCS form an offshore archipelago.
As such, Jardeleza said “Estoppel operates.”
The magistrate shares a key judicial distinction: “The Arbitral Award is a source of norms outside the Philippine domestic legal system. Its incorporation requires legislation, specifically through the adoption of a new baselines law.”
Thus, the Arbitral Award and PD 1596 cannot co-exist.
Jardeleza continues with a crucial discernment: “As the Arbitral Award does not automatically repeal PD 1596, its enforcement in the Philippines entails replacing PD 1596 with an implementing law.”
The former associate justice, has put Batongbacal in his proper place as a hacker tampering a sensitive legal discipline, just as Hilbay, a former solicitor-general, exposed Carpio, a former associate justice, for usurping a role of prominence in the arbitration the Philippines brought before the Permanent Court of Arbitration.
Deep penetration agent?
This is an opportune time for our national security interests to bring to light, because this Batongbacal has managed to infiltrate deeply into the academe, and through it, our very own Philippine Navy, and institutions, when actually he is only a two-bit lawyer and a self-proclaimed expert in maritime studies.
The reason I am asking is that this same man is now Professor VI, University of the Philippines, Executive Associate Dean, University of the Philippines College of Law and Executive Director, Master of Laws Program, UP College of Law, deeply-entrenched to affect legitimate students of a prestigious university with his labels and fake news, as Jardeleza has exposed.
I first met Batongbacal in a national security forum organized by Secretary Hermogenes Esperon at Richmond Hotel in Eastwood City sometime 2017. We were both invited, together with Richard Heydarian, as resource speakers.
I asked the Secretary, “why are these people here?” and he replied, “they are from the academe, one is from UP and the other is from De La Salle.”
In jest, I replied, “I hope you invited me not because I am from San Beda!” to which he replied, “No, I invited you because of your book, ‘A Problem for Every Solution’ which draws fresh insights on the South China Seas.”
In reality, Batongbacal is a tool of the Asia Maritime Transparency Institute, of which he is billed as “author” that has been formed by the Washington DC-based Center for Strategic and International Studies and its agent in the Philippines the Stratbase Albert del Rosario Institute.
Does he derive income from these groups for his articles and his services? Isn’t the UPLC Institute of Maritime Laws of the Seas (IMLOS) an adjunct of the AMTI? Did the CSIS or Stratbase ARDi have a hand on his becoming a member of the UNESCO/ Intergovernmental Oceanographic Commission List of Experts for UNCLOS Annex XVIII Arbitration in Marine Scientific Research since 2014?
Again, I asked because this same man, it appears, has not only infiltrated the Supreme Court but also our military and police.
He is a member not only of the Corps of Professors, Philippine Judicial Academy but of the Special Committee for the Rules of Procedure for Admiralty Cases, Supreme Court of the Philippines.
He is also in the Board of Advisers of the Philippine Navy (2015-present), the Philippine National Police Maritime Group (2017-present) and the AFP Education, Training, and Doctrines Command (2020-present).
So what’s the beef?
Am I getting personal? Am I resorting to ad hominem? Of course not.
This Batongbacal that Jardeleza has accused not only of labeling but cherry-picking to manipulate his arguments, can hostage the brains not only of the academe but also of our security community.
I will repeat what the magistrate said in the first part of this series of two articles: “[Batongbacal’s] charges are a gross misrepresentation of our view verging on intellectual dishonesty.”
He also cautioned the readers, “Labeling is against legal scholarship.”
So, if the practice of law must be based on facts and what is legal, and the highest pursuit of scholarship is un-blemish truth, what is Batongbacal peddling?
His own posts @ his Facebook page, delivers the smoking gun:
Note the specific mention of the Armed Forces of the Philippines, the PNP Maritime Group, and the Philippine Coast Guard (or was he implying the Philippine Navy?) which are entities that he advises?
This man who may be in the payroll of the Americans, through the Stratbase Albert del Rosario Institute, co-chaired by Manny Pangilinan of the Salim Group, First Pacific and Forum Energy, the very same group whose positions especially in the South China Seas debate Antonio Carpio echoes probably as a talking head, burns himself by teaching us “what information warfare is all about – to deceive the enemy into surrendering without a fight.”
Batongbacal does not mention it, but wasn’t he referring to China as the “enemy”?
By whose declaration? Certainly not the President of the Philippines who maintains a foreign policy friendly to China but acknowledged certain difficulties that he addresses through independent diplomacy. Certainly not the two houses of Congress, some of whose members have express dissent with China, but as body has yet to pass even just a resolution asserting the belligerence of our biggest neighbor.
Batongbacal is moonlighting in lawfare strategems.
The only party that regards China as an enemy is the United States.
Now the plot thickens.
I do not totally agree with Hilbay’s and Jardeleza’s points of departure upbuilding the arbitral award, as they partnered as successive solicitors-general of President Benigno Simeon Aquino’s intentions to recover Scarborough Shoals, but it is now becoming clearer that Carpio and Batongbacal were not the president’s men.
Hilbay and Jardeleza were lawyering for the president. I can give them the benefit of the doubt when it comes to pursuing what they thought was national interest. I would go to the extent of saying that todate, they are still in good faith.
But I will not go any nearer ascribing that when it comes to Carpio and Batongbacal. It is my opinion that these two were hacking a job for the different motivations of Albert del Rosario who was better than performing as foreign affairs secretary, was really brokering for his private interests as co-investors of Manny Pangilinan and Anthoni Salim in the exploration of the Recto Reef (Reed Bank).
This moonlighting is not per se against the government interest, but when done giving another country an elbow room to take a vantage position that may be a clear and present danger to our national security, that is a separate matter.
Carpio and Batongbacal have no qualms juggling the lexicons involved in applying the UN Laws of the Seas. I suspect hiring Americans Paul Reichler and law firm Foley Hoag as lead counsel for the Philippines, was really Del Rosario’s judgment call.
Whenever the arbitral ruling was mentioned, the only verifiable claim to “victory” is there was no legal basis for China to claim historic rights to resources within the sea areas falling within the “nine-dash line”.
I still cannot see why that could serve as win especially after China reclaimed eight islands, occupied and administered them as far as building installations that virtually served as permanent “aircraft carriers” in the Spratlys. China has altered the facts on the ground even before the arbitral ruling came out on July 12, 2016.
If there was any illegitimacy in the Chinese position, I still cannot appreciate how that can boost the Philippine position, better than it has favored the American exceptionalism in its pursuit of “freedom of navigation” around the world.
The reason why the United States did not ratify its signature to UNCLOS is precisely because it will limit its role as the world’s “policeman” and lessen its superpower status.
So what did the Philippines really won here to constitute a victory?
Did it bolster our presence in the Kalayaan Island Group? Nope, it even diminished it. Says the ruling “All of the high-tide features in the Spratly Islands are legally “rocks” that do not generate an exclusive economic zone or continental shelf. The Spratly Islands cannot generate maritime zones collectively as a unit.”
From a regime of islands, we now have rocks. Worse, rocks cannot generate 200 nautical miles of exclusive economic zones.
Did we get Scarborough Shoals back? Nope the award ruled that the area has been a traditional fishing grounds of many nations.
What was the point anyway hiring American lawyers to the tune of $7 million?
The last thing I noticed was the Philippines signed the Enhanced Defense Cooperation Agreement with the United States on April 28, 2014, preceding a visit by U.S. President Barack Obama that same day.
That allowed the United States to use Philippine military bases for its boots on the ground, a reality that could make these bases military targets for Chinese conventional and nuclear weapons, in the event of an armed confrontation between the two superpowers.
In the possibility that happens, we will again be asking why in the first place did these targets got bombed simultaneous to the leveling of Pearl Harbor when the Japanese joined the Second World War.