FORMER Supreme Court justice Francis Jardeleza is proposing that the July 2016 ruling of the Hague arbitral panel on our territorial disputes with China be brought before the United Nations, this newspaper reported the other day — strangely the only one to do so.
Jardeleza echoed the insistence recently of former foreign affairs secretary Albert del Rosario – under whose watch we lost Scarborough Shoal because he believed a US diplomat’s lie* — that the Duterte government should also do the same.
Such a proposal is crazier than the Aquino government’s move itself in 2013 to drag China into arbitration proceedings over our territorial disputes, which the superpower refused to participate in.
If not for Duterte’s bold move — and Filipinos’ immense trust in him that his policy was largely unchallenged — to shelve the ruling of a panel dominated by Europeans, we would have been isolated in East Asia as the only nation hostile to the military and economic superpower in the region.
Like it or not, that would have precipitated our country’s economic meltdown, in the same way we would have been in big trouble in the immediate post-war era if we had made the US an enemy. This is the reality, which del Rosario and his gang refuse to see.
More than three years after the five-man arbitral panel — not a “court” as has been the monumental deception — handed down its decision, purportedly on the basis of the treaty called the United Nations Convention on Law of the Sea (Unclos), it has become crystal clear that its provisions do not advance at all our “sovereignty” claims. In fact, if we strictly implement it, both our territory and the area of our exclusive economic zone (EEZ) will be drastically reduced.
First, the arbitral panel ruled that we can’t have our Kalayaan Island Group (KIG) in the Spratlys which Marcos — the Yellows’ devil incarnate on earth — annexed in 1978 to our territory through his Presidential Decree 1956. That was the first addition to our sovereign area since the 1898 Treaty of Paris under which Spain turned over their colony to the US.
Paragraph 574 of the arbitral ruling pointed out that “the Philippines could not declare archipelagic baselines surrounding the Spratly Islands.”
It explained: “Article 47 of the Convention limits the use of archipelagic baselines to circumstances where ‘within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.” And paragraph 599: “The ratio of water to land in the Spratly Islands would greatly exceed 9:1 under any conceivable system of baselines.” Indeed, 98 percent of the Kalayaan Island Group is made up of water.
Without those baselines, we give up our KIG, a hexagonal area of 17 million hectares. We’re left with the area of our islands, and rocks, which even if it had a 12-nautical mile territorial sea, totals only 55,800 hectares.
Aquino and del Rosario quite stupidly let their American lawyers cut off from our sovereignty a huge chunk of our territory, as they claimed during the hearing:
“Presidential Decree (PD) 1956, was enacted on 11th June 1978; that is before Unclos was adopted, and also six years before the Philippines’ ratification of the Convention on 8th May 1984. Under Philippine law, as a treaty lawfully entered into by the Philippines, Unclos is part of international law, and it has the same status as national legislation. And that means, to the extent that PD 1956 might be consistent with Unclos, PD 1956 is to be treated as having been effectively repealed by the Philippines’ subsequent ratification of Unclos.” (Minutes of Day 2 hearing on jurisdiction and admissibility, July 8, 2015.)
So, Jardeleza and del Rosario want the government to go to the UN and tell it to enforce the arbitral ruling that an area of over 17 million hectares, which is the extent of the KIG, is no longer our territory?
Second, Aquino and Del Rosario’s lawyers asked the arbitral tribunal to rule that none of the Chinese-occupied reefs are entitled to a 200-nautical EEZ.
The panel obliged them: It ruled that no feature in the Spratly islands, would be entitled to an EEZ, which includes ours, especially Pag-Asa island, the second biggest feature in our Kalayaan Island Group. That means lost was Pag-Asa’s potential 1.1 million hectares EEZ.
So, Jardeleza and del Rosario want the government to go to the UN and tell it to enforce the arbitral ruling that our Pag-asa Island is no longer entitled to 116,200 hectares of EEZ?
And third, what occupies Jardeleza and del Rosario’s small minds is the panel’s ruling that China’s infamous nine-dash line has no basis within the provisions of the Unclos. This is the tongue-shaped line of nine dashes in Chinese maps that encompasses most of the South China Sea. China, however, has ingenuously not defined what this line represents, whether it is claiming as Chinese territory both the waters and land features it encompasses, or whether only the land.
But China’s claims over our Kalayaan Islands or any other disputed territory in the South China Sea are not based on the nine-dash line, but on its government’s actions and declarations, in the modern era — starting in the 1930s (such as that expressed in the “South China Sea Islands Map” published by the Republic of China in 1935) and in the post-war period in its 1958 Declaration on China’s Territorial Sea and more recently in its 1992 Law of the People’s Republic Of China on the Territorial Sea and the Contiguous Zone.
So, Jardeleza and del Rosario want the fiery Foreign Affairs Secretary Teodoro Locsin, Jr. to go to the UN and tell it to ask China to leave the Spratlys since its nine-dash line doesn’t have a legal basis, only to be told to go home to do its homework and find out that the superpower’s claims are not solely based on that line?
I can just imagine how Locsin would tweet his reaction to that.
*I’ve written several columns on this, none of which del Rosario has attempted to question. Among these: “US fooled Del Rosario and Aquino for its ‘Pivot to Asia’ strategy”,“Aquino and del Rosario lost us Panatag”; “Foreign secretary admits he was hoodwinked into giving up Panatag”; “US fooled del Rosario into losing Panatag but he blames, vents his ire on China.”