17feb16-A hollow arbitral win at The Hague
POSTSCRIPT / February 16, 2017 / Thursday
BLESS their trusting hearts, many Filipinos believe that Manila won the case it filed in 2013 with the Permanent Court of Arbitration at The Hague disputing the claim of China over some Philippine maritime areas and much of the South China Sea.
But if the Philippines won the arbitral case in July 2016, why is China still in control of the Panatag (Scarborough) fishing ground 122 nautical miles west of Zambales? And why are the Chinese now occupying several islands they have built (and militarized) on reefs and protrusions in the Philippines’ 200-nm Exclusive Economic Zone?
Was it again “might is right” at work when the Chinese grabbed the upper hand even without going to The Hague?
What did Manila get in exchange for yielding territory, not to mention its loss of face? Were the investments ($15-billion) and soft loans ($9-billion) that President Rodrigo Duterte was promised during his visit to Beijing last October compensation enough?
We were reminded of the arbitral award by an email from lawyer Mario E. Valderrama, founder and first president of the Philippine Institute of Arbitrators. He wrote:
“Remember Phl vs China? I think that it’s all over. China won. Phl’s adventures in boarding the Chinese fishing vessels, shooting at a Taiwanese fishing vessel, and initiating and pursuing the arbitration all backfired.
“As I have predicted, the arbitral award is now just a matter for academic discussion. The discussion involves jurisdiction, tribunal bias, the appointing authority’s possible partiality, lack of any enforcement mechanism, whether or not China committed a tactical error in not participating at least up to the jurisdictional stage which would have resulted to a different set of arbitrators as well as some rather ‘strange’ rulings by the tribunal.
“Phl lost Scarborough. It was declared a ‘rock’, ergo not part of the sea and could be acquired. China as administrator can develop it in the same manner that Phl and other claimants can and have developed the ‘rocks’ (which include Kalayaan) that they are administering. At most, what we have now is, per President Duterte, a commitment by China not to develop it.
“Nobody could figure out how ‘traditional fishing rights’ could be enforced in the territorial waters of Scarborough. If at all, Filipino fishermen could only fish within the shoal because of China’s benevolence and subject to the rules of China.
“And the fact is, there is no such thing as ‘traditional fishing rights’ within the EEZ. Coastal states were already allocated an area in the high seas where they were granted exclusive economic rights over marine resources. So, ‘traditional fishing rights’ in the EEZ would be contradictory.
“Nothing much could be done to challenge China’s development of land formations declared as ‘rocks’. Here Phl lost — some land formations were declared ‘rocks’.
“As for the reefs within the Phl EEZ, China’s violation is in taking possession and developing them without securing the consent of Phl. But here President Duterte’s position is that Phl has no capability to enforce the award. Nobody came to the aid of Phl, save for some lip service which had since quieted down.
“Except, perhaps, the US. But only with respect to its main interest — the freedom of navigation and overflights with respect to reefs. Since reefs are part of the sea, then they cannot be owned by anybody. They are not entitled to an air space; they are not entitled to a territorial sea. What the US did was to fly over the reefs and to sail well within 12 miles of the reefs.
“Before his confirmation, US Secretary of State Rex Tillerson was threatening to block China’s access to the reefs. But after he took office, the rhetoric was toned down and focus shifted to looking for peaceful means to resolve the dispute.
“So, at the end of the day, China gets to keep the militarized reefs, unmolested.”
■ What Duterte says vs what he means
IN REPORTING on President Duterte, a journalist has to learn to distinguish between what the man says and what he really means, if he is serious or just joking, or even whether he is telling the truth or lying.
According to Duterte himself, only two out of every five things he says are true. We think that those who speak his native Bisaya and/or have known him since his days as Davao City mayor may understand and report on him better.
It is perplexing that top officials of the President’s own communications team sometimes cannot agree on what he is actually saying.
For instance, in his speech last Sunday when he visited earthquake survivors in Surigao City, he promised money for those who lost their loved ones and sources of living. He even asked his audience in jest if P2 billion was enough.
The media then reported that the President would disburse P2 billion to earthquake victims.
On Tuesday, however, Press Secretary Martin Andanar clarified that Duterte had in mind helping those who would lose their jobs with the Environment department’s closing more than 20 mining firms that have violated environmental laws.
But presidential spokesman Ernesto Abella said that the president was addressing survivors of the magnitude 6.7 earthquake that hit Surigao when he mentioned the P2 billion. To prove his point, he translated to English parts of Duterte’s speech delivered in Bisaya.
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MEA CULPA: In last Sunday’s Postscript, we mentioned the officers of the Capampangan in Media Inc. inducted by Pampanga Gov. Lilia G. Pineda at the Clark Freeport in Mabalacat City. CAMI was organized in December 2004.
In my hurry, I misidentified Narciso Sula Jr., one of the trustees, as Narciso Turla Jr. I have known Jun Sula since his days with then Sen. Ninoy Aquino. He is now the general manager of Sun-Star Pampanga, the only daily in the province that has survived the past 17 years.
(First published in The Philippine STAR of February 16, 2017)
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