AS the opposition exploits to the hilt the China-threat card to de-ligitimize the Duterte government, I can’t help but cringe when I hear some of our officials trying to sound learned by uttering things they don’t really understand. Two exemplars of that kind: Magdalo party-list Rep. Gary C. Alejano and Vice President Leni Robredo. Meanwhile, Acting Chief Justice Antonio Carpio has deceived us again.
Recommending that we abandon bilateral talks with China, Alejano has suggested multilateral talks. “We should also resort to a multilateral approach…What China has been doing is that it’s pulling the Philippines inside a room, talking bilaterally. All of us stakeholders don’t know what they had talked about” (Inquirer, June 9, 2018).
Perhaps Alejano thinks that the transition from bilateral to multilateral talks would be just as easy as going out of one room and entering another. He needs a dose of reality to be drunk with a tall glass of education.
The first challenge that Alejano must overcome in order to make that transition is the consent of China to enter into multilateral talks. As I’ve written before, no country can be made to do something without its consent. That imperative can only be overcome by using force against a country from which consent isn’t forthcoming. So, what’s the plan of Alejano to get China to consent to enter into multilateral talks?
Furthermore, if Alejano thinks that multilateral talks will make the bargaining position of the Philippines against China stronger, he’s mistaken. If he thinks the process would be faster through multilateral talks, he’s delusional.
The decision-making process in multilateral talks is often based on consensus, unless the parties to it agreed to a different one, such as majority decision. And any agreement reached through consensus is an agreement that needs the consent of all the parties. Thus, if China disagrees, the agreement won’t push through.
In multilateral talks, the Philippines needs to persuade all the parties to agree to what it wants. These parties also have their own interests. They won’t join the talks if they don’t have their own set of demands that they want to fulfill. So, instead of just bargaining with China in a bilateral discussion, the Philippines will have to bargain with one or more other parties. And in this more complex negotiating context, the Philippines will have to compete with China’s adept use of economic statecraft.
Robredo is another case of a confused politician.
In a forum in Quezon City on June 11, she said: “If China successfully solidifies its presence within its nine-dash line, the Philippines will lose effective control over its exclusive economic zone (EEZ)…” (GMA News Online, June 11, 2018).
In international law, “effective control” is one of the necessary conditions for acquiring and maintaining title to a territory. The consequence of effective control is the recognition that you have sovereignty over that territory. The EEZ, a recent international law concept that became operational after the UN Convention of the Law of the Sea (Unclos) came into force in 1994, is not part of a country’s territory. Since it’s not part of a country’s territory, the EEZ is not area where a country has sovereignty, of which it has full and absolute control. Thus, there’s no such thing in international law as “effective control” over the EEZ.
Last year, in my column of May 25, 2017 (“The Nicaraguan option wishful thinking”), I wrote about how Carpio deceived us in 2015 when he claimed that the United States complied with the International Court of Justice decision on the case that Nicaragua filed against it in the 1980s. Now, he’s deceiving us about Scarborough Shoal.
On June 12, the Manila Bulletin quoted Carpio as saying that “the Philippines cannot invoke sovereign rights over the Panatag or Scarborough Shoal since the 2016 decision of the Permanent Court of Arbitration (PCA) did not settle the dispute with China for lack of jurisdiction.”
Nowhere in the decision can you find that Scarborough Shoal wasn’t outside the jurisdiction of the tribunal. If one reads the decision, the tribunal only found one issue over which it had no jurisdiction because it involves military activities, the stand-off in the Second Thomas Shoal.
The truth is the Philippines never asked the tribunal to declare that Scarborough Shoal is within our EEZ and therefore we have sovereign rights over the waters there. The Philippines argued the rights of our fishermen to operate there by using the concept of “traditional fishing ground.”
These are the only things the Philippines asked for the tribunal to decide in relation to Scarborough Shoal; you can find its full list in paragraph 112 of the Arbitral Decision on Merits.
Our arbitration team, which included Carpio, asked the tribunal to declare that:
—“Scarborough Shoal generates no entitlement to an exclusive economic zone or continental shelf;
—China has violated its obligations under the convention to protect and preserve the marine environment at Scarborough Shoal…;
— China has breached its obligations under the convention by operating its law enforcement vessels in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity of Scarborough Shoal.”
Why is Carpio lying to us?
(Published in The Manila Times on 14 June 2018)
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