POSTSCRIPT / June 14, 2012 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Phl invoking UNCLOS that US has not ratified

LOS ANGELES — President Noynoy Aquino and his hosts in his last visit to the American seat of power went overboard toasting each other in pursuit of their respective national agenda.

Only time will tell if their fulsome praise for each other will bear fruit.

Will President Aquino secure the military hardware and diplomatic pressure needed to rein in Beijing’s expansionist adventures into the Philippines’ exclusive economic zone?

Will the United States get a more flexible basing arrangement in its former colony to help project a dominant US presence in the South China Sea while shifting 60 percent of its naval power to the Pacific side?

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U.S. NEUTRAL?: Both Beijing and Manila better pay attention to State Secretary Hillary Clinton, whose forceful pronouncements resonate like coming straight from the Oval Office.

President Aquino may also find it in his country’s interest to learn how to read Hillary Clinton. Not a few people noticed, for instance, that she said at the State luncheon she tendered in the President’s honor:

“The US does not take any position on the competing territorial claims in the South China Sea.”

That sounded like a hands-off stance on Manila’s quarrel with Beijing over the Scarborough (Panatag) Shoals off Zambales.

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INT’L LAW: That declaration of neutrality on territorial disputes may have been meant merely for public (including China) consumption, but was it explained in private, and in writing, to the visitors from Manila?

It may seem like a minor detail, but did any Philippine official bother to clarify also what Clinton meant when she talked of “the US’ clear interest in the maintenance of peace and stability… respect for international law.”

The Philippines had invited China to submit the Scarborough row to the International Court of Justice, while the US reiterated its stand that the question be settled on the basis of law and diplomacy.

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NO U.S. RATIFICATION: In the same vein, President Aquino said at the launch of the US-Philippines Society in Washington that “our two nations… will share in the peace and prosperity that comes from the US adding its voice to supporting and guaranteeing a rules-based international system.”

Repeated invoking of international law could be confusing since until this late date the US, a major power, has not ratified the United Nations Convention on the Law of the Sea. Both China and the Philippines have ratified it.

How can the US and its ally the Philippines invoke UNCLOS if Washington has not even ratified the law being suggested as framework for settling the Philippines-China territorial dispute?

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UNCLOS TALKS: Wikipedia said the US was among the nations that participated in the third UN Conference on the Law of the Sea from 1973 to 1982 resulting in the international treaty known as the UNCLOS.

The US also participated in the subsequent negotiations from 1990 to 1994 on modifications to the treaty that came into force in 1994.

Among the issues covered were exclusive economic zones, continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of maritime boundary disputes.

At least 160 countries and the European Union have joined the Convention. Although the US recognizes the UNCLOS as a codification of customary international law, it has not ratified it.

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U.S. OBJECTIONS: The US has not been willing to agree to Part XI of the Convention concerning deep seabed portions and mining of potentially valuable metals.

In 1990, consultations were begun between signatories and non-signatories (including the US) over the possible modification of the Convention to allow the industrialized countries to join it.

Wikipedia said: “The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the US, if it became a member, would be guaranteed a seat on the Council of the International Seabed Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters.”

An amending agreement was finalized in July 1994. The US signed the Agreement in 1994 and now recognizes the Convention as general international law, but has not ratified it until now.

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CLINTON PRIORITY: On April 24, 2004, Jeane Kirkpatrick (US ambassador to the UN in 1981-1985 under the Reagan administration) testified against ratification before the Senate armed services committee.

She said the Convention was a “bad bargain,” and that “its ratification will diminish our capacity for self-government, including, ultimately, our capacity for self-defense.”

On May 15, 2007, President George W. Bush announced that he had urged the Senate to approve the UNCLOS. On Oct. 31, the Senate foreign relations committee voted to send it to the full Senate for a vote.

Speaking at her confirmation hearing as State Secretary, Clinton said on Jan. 13, 2009, that ratification of the Law of the Sea Treaty would be a priority for her. On May 23, 2012, she argued for ratification before the committee on foreign relations.

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WHY NOT: Wikipedia said among the arguments raised against ratification were:

* Sovereignty — The treaty creates the International Seabed Authority with its own dispute resolution tribunal. Should the US stop its current compliance with the US-negotiated laws of the Convention, the US could not be taken to the Law of the Sea Tribunal since the US has indicated that it would choose binding arbitration rather than availing itself of the International Tribunal on the Law of the Sea.

* No need — The US already honors almost all the provisions of the treaty. There is no pressing need to ratify it that outweighs the negatives of the remaining provisions.

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(First published in the Philippine STAR of June 14, 2012)

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