Tuesday, June 15, 2021

Nalzaro: Enforcing arbitral ruling easier said than done


In some far-flung areas in Mindanao, some legitimate landowners abandoned their vast land because during harvest season their products are harvested by armed men. When they confronted the armed men on why they harvested their products when they are the legitimate and legal owners of the land, the armed men would simply answer, “Yes, this is your land, but the products are ours,” while at the same time pointing their guns at the landowners.

If you were the landowners, would you insist and assert your ownership at gunpoint? You can, but you can be killed anytime. So you just keep silent or to avoid trouble just leave the place. Landowners can only assert their ownership if they will also take up arms to fight the armed men taking their products. That is what we call “balance of terror.”

I think President Duterte is just too practical when he said that the arbitral ruling on the West Philippine Sea (WPS) by the United Nations Convention on the Law of the Sea (Unclos) is just a “mere scrap of paper” unless enforced. I agree. Who will enforce that ruling? Our government through our military? The United Nations? The US? What can we do if China will not acknowledge that arbitral ruling? Are our military and, we, the citizens willing to go to war? Are our allies, even the US, willing to compromise their diplomatic relations with China or waste the lives of their soldiers to help us enforce the ruling? Aggressively enforcing it would mean war. Enforcing the ruling “is easier said than done.” It is practically like the Mindanao situation I cited above. Unless we have the strong defense and military capability like Israel that we cannot be easily bullied by other superior nations.

In 2019, three years after the ruling in July 2016, then Supreme Court senior associate justice Antonio Carpio, who is now very vocal about it, had already offered at least six ways the government could enforce the arbitral award. These include the following:

1) Entering into a convention with Vietnam, Malaysia, Indonesia and Brunei regarding the South China Sea. The convention can declare that geologic features in the Spratley Islands generate an exclusive economic zone (EEZ) and that there are only territorial seas from the geologic features that are above water at high tide as ruled by the arbitral tribunal. Carpio said this will leave China “isolated” as the only country claiming EEZs from the Spratley islands. Countries that assert freedom of navigation and overflight in the South China Sea are also expected to follow such a convention.

2) Sending the Philippine Coast Guard’s 10 new 44-meter multi-role response vessels that were donated by Japan to patrol the New Philippine Sea. These vessels, Carpio said, are ideal for patrolling and catching poachers in the Philippines’ EEZ in the West Philippine Sea. Doing so will also assert the country’s sovereign rights in the maritime area.

3) Welcoming and encouraging freedom of navigation and overflight operations (Fonops) of naval powers like the United States, United Kingdom, France, Australia, India, Japan and Canada in the South China Sea including the West Philippine Sea. Carpio described the Fonops as the “most robust enforcement” of the arbitral award since it was won.

4) Sending the Philippine Navy to join Fonops of foreign naval powers to assert the country’s EEZ in the West Philippine Sea. Carpio said this will strengthen and enforce the ruling along with naval powers both in Asia and around the world.

5) Inviting Vietnam, Malaysia, Indonesia and Brunei to conduct join Fonops in their respective EEZs facing the West Philippine Sea. This will be a common assertion by five coastal states that each of them has its own respective EEZ in the South China Sea, thereby enforcing the arbitral award that China’s 9-dash line has no legal effect and cannot serve as basis to claim the waters of the South China Sea.

6) Support private efforts to enforce the arbitral award. Carpio referred to the case filed by former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio Morales against Chinese President Xi Jinping before the International Criminal Court. The complaint accused Xi of crimes against humanity over environmental damage in the South China Sea. (Source: Rappler by Sofia Tomacruz, July 14, 2019).

In his column in the The Philippine Business and News, internationally renowned lawyer Howard Calleja said there have been two cases where decisions on arbitral award by United Nations Convention on the Law of Sea (Unclos) were fully implemented. These are the cases of Artic Sunrise versus Russia. In 2013, using the vessel Arctic Sunrise, Greenpeace activists tried to access the Prirazlomnaya oil rig which was operating within the Russia Federation’s exclusive economic zone (EEZ). The case was brought to the Unclos and a resolution passed finding Russia in violation of various provisions.

Another case cited by lawyer Calleja was that of Vietnam and Indonesia that repeatedly condemned the excursion of Chinese vessels in their EEZ. Indonesia successfully navigated advantageous trade and economic agreements with China. This shows that a nation’s principled and consistent stand coupled with political will is key to a winning a peaceful solution against a super power like China.

But these cases are two different situations from the case of the Philippines owning the WPS. Well, let’s try these diplomatic ways, and let’s see if this will work out. Pero mao lagi na. Sayon ra kaayo estoryahon, pero puwerting lisura himoon.


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