By Adolfo Q. Paglinawan
Third of a Series of 3
When it comes to international relations, President Rodrigo Roa Duterte has chosen to execute the constitutional provision for an independent foreign policy, which is to engage other countries through diplomacy.
His detractors, however, has been pushing him to enforce our foreign policy like a raging bull on its way to a chinashop.
Self-proclaimed expert Jay Batongbacal eggs our law enforcers to enforce our sovereignty and jurisdiction in the Kalayaan Island Group, but whose legitimacy has been negated by an Arbitral Ruling that ironically limited our claim, instead of de-limiting it, when it declared the Spratly Islands (of which the KIG is a part) as mere rocks.
That Batongbacal cannot grasp this, after a point-by-point explanation by a former associate justice of the Supreme Court and before that a solicitor-general, only shows that the bases of his logic do not reflect Philippine reality, but American ambitions in the South China Seas.
I cannot fathom why a lawyer cannot accept that by the very UNCLOS that he flaunts, “Rocks are only entitled to 12 nautical mile territorial boundaries, but cannot be entitled to 200 nautical mile economic zone.”
For Batongbacal, it is my way or the highway.
Now who does he insinuate as creating an air of “panic among (Philippine) policy-makers and decision-makers”?
Certainly not Francis Jardeleza.
This is precisely why I see the wisdom of passing a baseline law.
If my memory does not fail me, it was the late Constitutional Convention Delegate Voltaire Garcia who first championed the urgency of our having a baselines law.
This law will clearly position where we stand as a nation, and not leave our sovereignty subject to the interpretations of legal wannabes and foreign countries.
We claim our baselines have progressed from we have acquired from the Treaty of Paris of 1898 and the Treaty of Washington of 1900.
We say Scarborough Shoals is part of our territory westward from Zambales, but our own formal mapping excludes that in our borderline determination.
No matter how many the table books the CSIS and the Stratbase Albert del Rosario Institute publishes under Antonio Carpio in the hope his name provides it a legitimizing effect, with historical names as Bajo de Masinloc and local adaptation as Panacot or Panatag Shoals, the dotted lines in any map you buy from National Book Store shows that it is outside the dotted lines depicting our 12-mile territorial limits.
We say that by virtue of a presidential decree of former President Ferdinand Marcos, we have occupied certain islands in the Spratly Islands, but we do not have latitudes and longitudes, in chart and in the letter of the law, to box such baseline coordinates.
And what about Sabah, which we claim is ours by historical and legal rights transferred to our Republic by the Sultanate of Sulu sometime in the early 1960s?
On March 10, 2009, President Gloria Macapagal Arroyo signed Republic Act No. 9522 amending Republic Act 3046 as amended by Republic Act 5446, defining the archipelagic baseline of the Philippines.
The law, however, while quoting in toto in its Section 1 the detailed baseline coordinates in longitude and latitude according to the World Geodetic System of 1984, merely indicated in its Section 2 a ministerial description of the amendment, such as:
Section 2. The baseline in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as “Regime of Islands” under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):
(a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and
(b) Bajo de Masinloc, also known as Scarborough Shoal.
Subsection (a) is precisely what the Arbitral Award diminished into rocks.
Subsection (b) is what the former administration, when Albert del Rosario was secretary of Foreign Affairs, lost to Chinese control.
The arbitral award made it even nebulous and farther for us to claim by stipulating that it has been a common fishing ground for many nations.
The arbitral tribunal also did not declare the Scarborough Shoal as part of the Philippine EEZ even when it is located within 100 nautical miles off the country’s baseline.
The Jardeleza proposal layouts detailed baseline coordinates. I have yet to see how he handled the question of Sabah.
Once we have put our house in order, so to speak, the specificity as legislated will serve as the exact basis of enforcing our sovereignty and territorial claims, solidly etched in our municipal or domestic laws, including the 12 nautical-mile limits allowed by customary international law, as well as assert our sovereign rights to economic zones up to 200 nautical-mile limits, as provided by UNCLOS.
The details will now make it reasonable and easier, to negotiate limitations, delimitations and bilateral code of conduct with any country where our claims would overlap.
Argumentations, erstwhile based on pure testosterone and alien interests, as espoused by their agents Carpio and Batongbacal, and their ilk and patrons, would now be easier to spot as there will no longer be gray areas.
Municipal vs international law
The other area that Jardeleza has unwittingly brought up to the enlightenment of students of sovereignty and sovereignty rights, and those who claim to be legal practitioners, is the distinction between international and municipal (also called domestic and internal) laws.
International law has increased in use and importance vastly over the twentieth century. Due to the increase in global trade, armed conflict, environmental deterioration on a worldwide scale, awareness of human rights violations, rapid and vast increases in international transportation and a boom in global communications.
International law, simply put, is the law between states. Municipal law is the law within a state.
Municipal law is also recognized as the expression of the state itself because it emanates from the local authority which could be a constitution, a legislature or common law tradition arising out of judicial decisions.
Legislation of an independent state, is not a source of international law, but of national law of the state whose legislature enacted it.
The first and foremost restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another State [The Lotus Case, Lotus, PCIJ, series A no. 10, 18 (1927)].”
International law, is based on a common consent of agreeing states.
And it must be understood early, that it cannot mean that all states must at all times agree to every part of the body of rules constituting international law, for such common consent, in practice, could never be established.
In this sense, municipal law is supreme over international law.
This is why international treaties, conventions and agreements, have a caveat where signatory states are allowed to present declarations that would identify which section or sections, they have reservations with, so that other agreeing states are forewarned by declaring states where difficulties exist to harmonize their agreement to their own municipal laws.
When China refused to participate and be part of the arbitration process filed by the Philippines in the Permanent Court of Arbitration, no international body can make it submit to the process and definitely to whatever ruling it comes up with. China had long advised the United Nations secretariat of its own caveats insofar as the United Nations Convention of the Laws of the Seas.
China opted out of any of the compulsory provisions provide by UNCLOS precisely because its municipal laws only allow it to voluntary bilateral negotiations with any country in the settlement of contrary claims and disputes.
The only way to make China comply with the PCA ruling is by force of war.
This presents an inherent weakness of international law. In general, it has no absolute and effective enforcement system. States are reluctant to obey when their vital interest is at stake, it seems powerless prohibiting the use of force by powerful states.
What makes matter worse is the veto power of the United Nations’ permanent, known as the “Big Five” which makes it impossible for any enforcement against them or any state, which is a close ally to them.
International law also lacks an efficient judiciary to interpret it. Though the International Court of Justice exists, it has no compulsory jurisdiction, as such it cannot be called as a satisfactory judicial authority.
This is what one of the top lawyers in this country, Juan Ponce Enrile, said when asked to comment on the PCA ruling: “There is no judicial remedy in international law.”
The sanction in municipal law is more coherent and structured, whereas, the sanction in international law is loosely structures which explains why its frequent violation is logical.
This is why in our case, problems arose when wannabes like Batongbacal and Carpio allowed the business interests of Albert del Rosario and his gang and foreign intervention by the United Sates, to drive our former president, the late Benigno Simeon Aquino III to consider UNCLOS as a sort of a “constitutional law” that binds all signatories, unconditionally.
Worse, they regarded the PCA ruling as gospel.
This is why I wish to caution Presidential Spokesman Harry Roque, who is one of the country’s pillars of international law and who the President has anointed as his thinktank when it comes to the South China Seas issues, not to accept Jardeleza’s position that a new baseline law is “the most efficient option to enforce Arbitral Award of the Permanent Court of Arbitration”.
Why enforce an arbitral award that has precisely downgraded the Kalayaan Island Group as “mere” rocks? Why give it importance, when Jardeleza himself has said, we “suffered five years of intellectual paralysis over the South China Sea dispute”, precisely because of a controversial tribunal and ruling.
Let us have a new baselines law because once and for all, it is a sine qua non to our sovereignty [in the case of determining territory] and sovereign rights [under UNCLOS – the United Nations Convention on the Laws of the Seas], period.
We do not need to pass this law just to legitimize an “award” and the minions who spent Php 1 billion of taxpayers money just to engage in legal calisthenics, hire foreign lawyers (Americans at that!), pay for service and facilities of what Carpio himself has admitted serves not as a court but only a registry.
For all intents and purposes, the so-called award is a “one-party” arbitration, chalking out a unilateral ruling that has even diminished our own claims, inarguably our national interest, in the Spratlys and the Scarborough Shoals.
The bottom-line is that it is our sovereignty and sovereign rights, our national interest, that we must enforce.
Batongbacal will never agree to exact coordinates because they provide solutions, and hackers have a problem for every solution.