Oral arguments on the issue of jurisdiction in our arbitral claim against China should be on-going as I write this column. In a testimonial tendered in honor of former UP Law Dean Raul Pangalangan who was recently elected Judge at the International Criminal Court, Solicitor-General Florin Hilbay told me that he will open the arguments by introducing the members of the delegation. He will then cede the podium to Foreign Affairs Secretary Albert Del Rosario who will discuss why the Philippines resorted to the arbitration. After which, our American lawyer, Paul Reichler will take the podium to discuss the issue of jurisdiction. Hilbay will then deliver his closing remarks.
At issue in the oral arguments is whether the ad hoc arbitral tribunal has jurisdiction over our arbitral claims. Here, we need to convince the five-man tribunal that our prayers constitute issues of interpretation and application of the Untied Nations Convention on the Law of the Sea. We also need to convince the erudite body that our claims do not fall within the reservations of China which includes issues of maritime delimitation and military and law enforcement activities relating to the exercise of sovereign rights.
We have three principal prayers: one, that the Chinese nine-dash lines be declared bereft of legal basis under the UNCLOS; two, that the artificial islands recently expanded by China are low tide elevations which cannot be the subject of title by any sovereign states since they should form part of the continental shelf; and three, that the waters outside of the 12 nautical miles off Panatag should be declared as part of the country’s Exclusive Economic Zone.
I have consistently opined that all of our three major prayers constitute issues of interpretation and application of UNCLOS. They will entail interpretations of the Convention’s provisions on internal waters, territorial sea, exclusive economic zone, and the regime of islands.
The Chinese defense is that: first, it has not agreed to litigate the issue and cannot be compelled to participate in the proceedings. Second, they argue that the tribunal lacks jurisdiction because the validity of its claims to the waters within the nine-dash lines will depend on the validity of its claim to title over islands that generate the maritime zones. According to the Chinese Judge of the ICJ, our claim “muddles issues of jurisdiction with the merits” since our prayer cannot be resolved without tackling both jurisdictional issues and the merit of the case.
While the oral arguments are scheduled until the 13th of the month, Hilbay is confident that we could conclude our arguments by Friday this week.
The whole international community is glued to developments in our case. At stake in our submissions is the very future of UNCLOS itself. If small countries like us cannot rely on the Convention to resolve maritime disputes with regional superpowers, then the Convention will prove useless. China, on the other hand, by threatening to ignore rulings of the Tribunal, and even threatening to withdraw from the Convention should there be a decision against it, has sent the message to the Tribunal that an adverse decision to China might also lead to the end of the agreement.
What is my prognosis? Well, I’m 100-percent sure that the validity of China’s nine-dash lines involves a declaration interpreting pertinent provisions of the Convention. I predict that the Tribunal would declare the nine-dash lines as bereft of legal basis. In so doing, it will have the opportunity to rule on the nature of claims to historical waters, contrary to the literal provisions of the UNCLOS. Justice Carpio in his ponencia in Merlin Magalona vs. Executive Secretary implies that such claims have ceased to have legal basis. The Chinese Judge maintains their continued validity under the doctrine that what is not prohibited in international law is allowed.
I have less confidence in our two other prayers, which I believe should not have been included at all. I will write about this in due time.
Meanwhile, with only three oralists scheduled to make submissions before the Tribunal, why is it that we have a delegation of at least 35? I say at least because the number does not include our foreign counsels and their staff. I believe the correct number of our delegation should be at least 50. That’s 50 business class tickets and 50 de luxe rooms at five-star hotels in very expensive The Hague!
I am currently in Pangasinan documenting how fishermen have been deprived of livelihood by the Chinese who have taken over their traditional fishing grounds in Panatag shoal. You don’t need a degree from the Kennedy School of Government to conclude that the money spent for the mirons in The Hague should have been used to assist the displaced fisher folks of Panatag instead. Oh well, only in this administration do you have policy makers fleecing off the people’s misery! Talk of the ultimate junket at The Hague! All told, our delegation should not have exceeded 10 given that we have a full-fledged diplomatic mission there headed by our very capable Ambassador Jet Ledda and ably assisted by Atty Peachy Defensor, youngest sister of Inday Miriam. I would understand why the Office of the Solicitor General, the Supreme Court Justices and the Department of Foreign Affairs should be there. But 35 in addition to our foreign counsels? Come on!
Thank God 2016 is just around the corner! Out with the junketeers!