Con-com draft on national territory could complicate bid to use ruling on WPS–expert

In Photo: Protesters shout slogans while marching with a Philippine flag toward the Chinese Consulate to mark the second anniversary of the United Nations Permanent Court of Arbitration’s decision upholding the Philippines’s territorial rights in the disputed Spratlys group of islands in the South China Sea on July 12, 2018, in Manila.

TWO years since the historic victory of the Philippines against China in a landmark international arbitral ruling over the West Philippine Sea/South China Sea dispute, the country seems to be facing another challenge.

The second anniversary of The Hague ruling comes after the public release of the proposed draft federal constitution made by the 22-member Consultative Committee (Con-com) tasked to review the 1987 Constitution in a bid to shift the country’s form of government from unitary to federal.

Parts of the Articles on the National Territory and National Economy and Patrimony do not sit well with maritime law expert Jay Batongbacal.

The professor told the BusinessMirror on the sidelines of the forum on the anniversary of the South China Sea ruling that the proposed constitutional provision is “badly written” and that the provision on the National Territory in the 1987 Charter is “better” than the one proposed by Con-com.

“For me, it’s [the Con-com provision] not well written and it will only attract protests and there were errors there so it’s not good,” Batongbacal said in Filipino.

The proposed provision, he said, will not strengthen the claim of the country over the disputed waters as opposed to what the Con-com earlier stated as their reason for revising the current provision on National Territory.

“The purpose that they are saying is actually faulty since it’s counterproductive,” he said. “By putting it there you’re not strengthening the claim, in fact you’re even highlighting that you still don’t know or [are]  still not sure [about it],” he said.

He added that the domestic law does not contribute anything to international law as other countries are not bound by our domestic law.

“So how can you say that by enacting a law you will be able to strengthen your claim over that territory?,” he said.

Asked if he was consulted by Con-com on its proposed provision on National Territory, Batongbacal said he was asked to make a suggestion that is shorter and more compact but it was not used by the committee.

Section 1 of Article I National Territory of the proposed draft federal charter states: “The Philippines has sovereignty over its territory, consisting of the islands and waters encompassed by its archipelagic baselines, its territorial sea, the seabed, the subsoil, the continental shelf, and its airspace. It has sovereignty over islands and features outside its archipelagic baselines pursuant to the laws of the Federal Republic, the law of nations, and the judgments of competent international courts or tribunals. It likewise has sovereignty over other territories belonging to the Philippines by historic right or legal title.”

Batongbacal explained that among the errors of the proposed provision is that where the Philippines claims sovereignty over the continental shelf. “That is not possible because according to international law, we only have sovereign rights over continental shelf,” he said, adding that the provision will also attract protests from Malaysia and China.

Although the 1987 provision on National Territory has “flaws”, he said the current provision is still “more flexible and encompassing” since it still has room to accommodate the possibility of some changes in the national territory of the country.

Section 2 of the same article of the proposed federal charter stated that: The Philippines has sovereign rights over that maritime expanse beyond its territorial sea to the extent reserved to it by international law, as well as over its extended continental shelf, including the Philippine Rise. Its citizens shall enjoy the right to all resources within these areas.”

“This proposed one…why highlight Philippine Rise? What if you get another continental shelf? That is why I am saying it is not good, coming from a technical standpoint from me, it is not well-written,” he said.

Batongbacal said the proposed constitution can also lead to Congress removing the economic restrictions, which he said is the remaining protection of the people.

In the article on National Economy and Patrimony, the Con-com proposed that Congress may, by law, change the voting capital requirement under the sections on mass media, advertising and educational institutions, natural resources and public utilities.

Batongbacal also questioned Con-com’s move to maintain the minimum equity requirements but at the same time add a provision that Congress can completely change or remove these restrictions, saying it is “deceptive.”

“It’s like a way for them to do away with these ownership requirements even though the people may not want them to be done away with, so it is as if they may use the Congress to circumvent these kinds of restrictions,” he said.

“Now, what they did was double-sided or double-edged—i.e., that if the people ratified the constitution, they are going to say that ‘Okay, we favor these restrictions’ but at the same time they are asking the people to approve the provision which says that those protections can be removed when it is decided by the Congress,” he said.

“The whole point of the constitution and all of its provisions is to protect the people’s rights and access to their natural resources. All the equity restrictions are supposed to protect the ability to control these businesses and ensure that they’re not used against these people,” he said.

Batongbacal noted that with the removal of these protections, people are left to fend for themselves when the government decides to go into all sorts of inequitable deals.

“Without those protections, well you don’t know, we don’t know where will they take that,” he said. “It will make it easier for them to say goodbye to the ruling,” he said.

It was on July 12, 2016, that The Hague-based Permanent Court of Arbitration issued the landmark decision invalidating China’s massive claims to the disputed waters, noting that the Asian superpower has no legal basis to claim historic rights within the sea areas falling within their “nine-dash line.”

Up to this day, however, China does not recognize the arbitral ruling.

In the same forum marking the second anniversary of the ruling, Supreme Court Senior Associate Justice and Acting Chief Justice Antonio T. Carpio, who was part of the legal team that brought the case to the arbitral tribunal, said that their plan before was to go to the UN General Assembly and sponsor a resolution that China should abide by the ruling.

Carpio said they estimated that the resolution will easily get the majority and they were also planning to sponsor the same resolution year after year.

“That was supposedly the plan but when the ruling came out 10 days or 12 days after the incumbent president took over, he did not do that. The entire policy changed. So what we are trying to do now is to preserve the ruling for the next administration,” he said.

Agreements with Vietnam, Malaysia

Carpio also noted during the forum that the Philippines can enforce the ruling without China’s participation by entering into sea boundary agreements with Vietnam and Malaysia.

“The Philippines and Vietnam can enter into a sea boundary agreement of their overlapping extended continental shelves beyond the Spratlys,” he said.

“A sea boundary agreement can be entered into between the Philippines and Malaysia to delineate their adjoining exclusive economic zones between Borneo and Palawan,” Carpio added.

According to Carpio, these agreements adopt a ruling in the award by state practice even if China is not a party to this agreement.

He also said the Philippines can also file an extended continental shelf claim off the coast of Luzon facing the South China Sea before the United Nations Commission on the Limits of the Continental Shelf.

Although he was “heartened” that Foreign Affairs Secretary Alan Peter S. Cayetano has drawn a “red line” on the Scarborough Shoal, he believes the Department of Foreign Affairs should campaign among Southeast Asian countries to also make Scarborough Shoal Asean’s red line—i.e., that China cannot build on Scarborough Shoal.

Aside from Asean (Association of Southeast Asian Nations) countries, DFA should also campaign, he said, for the US to make the Scarborough Shoal the official red line under the Philippine-US Mutual Defense Treaty.

“After all, it was President Obama who originally told President Xi Jinping in 2015 that Scarborough Shoal was a red line,” he said.

The Duterte administration has been criticized for taking a softer approach when it comes to dealing with China on the maritime dispute. Malacañang and Cayetano insisted, though, that the Philippines continues to assert its sovereignty and sovereign rights over the disputed waters and that it has already filed diplomatic protests against China.

China using force–Poling

However, Gregory Poling, director of Asia Maritime Transparency Initiative at the Center for Strategic and International Studies, said in a video message during the forum that all of China’s actions, including its coercion, bullying, its construction activities, do not
paint a picture of a country that is committed to find equitable, diplomatic solutions to disputes.

“Instead, it paints a picture of a country who is willing to use force or at least a threat of force to get its way and not one that has the intention to abide by the arbitral order in 2016 or any other diplomatic effort,” Poling said, noting that China has not stopped militarizing its artificial islands in the South China Sea and it has also not stopped building new bases.

“What we have seen from China is a country using diplomatic efforts” to match the Duterte government’s conciliatory stance, in order, said Poling, “to continue to make gains on the ground while paying virtually no price, no diplomatic price anyway.”

In the meantime, Poling added, China “is only using those diplomatic efforts as  a delaying tactic until the day they decide to use force or at least a threat of force to convince the Philippines and other claimants to just accept…China’s dominance in the South China Sea.”

Former Foreign Affairs Secretary Albert del Rosario said in his speech that the government
has allowed the country to be a “willing victim” to China; and the administration is an “abettor” to Beijing for allowing the latter to deprive the Filipinos of what is rightfully theirs and by continuing to shelve the tribunal outcome.

“Where do we go from here? What should we do now as a willing victim and an abettor that has fully embraced our big northern neighbor who is clearly acting as a bully, a grand larcenist and an international outlaw?” he said.

“To close, we reiterate our position that coercive diplomacy has no place in a rules-based international order. Our common goal is peace and prosperity without sacrificing our sovereignty and our sovereign rights,” he added. “How we choose to assert our rights and our dignity as a nation today will be the legacy the next generation of our country will have to live with.”

Del Rosario also urged Filipinos to voice their sentiments to the government and to exercise their rights to raise indignation against China.

“And finally, we need all of our friends in the community of nations who believe in the rule of law to help us, but before we can hope for help, we must first demonstrate that we are worth helping,” he said.

Turning Points 2018
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