Diplomatic protest vs China futile?

by Caroline Howard, ANC

Posted at Apr 23 2012 03:29 PM | Updated as of May 01 2012 10:19 AM

MANILA, Philippines - The Department of Foreign Affairs (DFA) is standing by its decision to seek international arbitration on the disputed Scarborough Shoal with or without China.

The Philippines insists the Scarborough Shoal is part of its exclusive economic zone (EEZ) based on the United Nations Convention On The Law Of The Seas (UNCLOS), a treaty on maritime territory to which the Philippines and China are both signatories. The International Tribunal of the Law of the Sea (ITLOS) is the mechanism that resolves territorial disputes.

But Ateneo international law professor Atty. Howard Calleja says it may be futile for the Philippines to pursue a diplomatic protest on the Scarborough based on the area's proximity. Calleja says this is in light of the fact that China had asserted its historical right to the area prior to the UNCLOS.

"(UNCLOS) started as far back as the 1950s, the final draft in 1980s, then countries signed into it.  But in 2006, China opted out," Calleja said on [email protected]  "They are a signatory but they opted out of the dispute resolution covering sovereignty and maritime disputes."

"Before you go to the EEZ you have to recognize my historical right.  That's what China is saying. It cannot overlap to that because prior to the UNCLOS, I already have my historical right," he added.

"Diplomatic protest is only between the Philippines and China, and China has been clear saying this is theirs and the 9-dash line of China, which covers the entire South China Sea,. Hindi pwedeng ganoon. Prior to 2006, we already made a claim but in 2006 they opted out.”

PH must show political will

Calleja says that under the UNCLOS, there are other exceptions to bring about a resolution under the ITLOS or even the UN Security Council.

Rather than making Scarborough a matter of mere territory, Calleja says, the Philippines will have to exert greater vigilance and show unmistakable proof it operates within the Scarborough Shoal.

"If we do not have a firm stand a strong political will, then nobody will mind us," he says.

"If we back down, there will be no tension. I'm not saying we shoot each other there, but we should exercise the act of brinkmanship: you come to a point that is very hostile or dangerous but you still have a peaceful resolution."

Historical claim

Calleja cites the Las Palmas case, a leading case in international law on occupation, involving the United States and IndoChina contesting an island between Mindanao and Indonesia.

The case ended with three accepted conditions: 1) discovery must be followed by jurisdiction and economic activity; 2) distance doesn't translate to territory; 3) discovery must be followed by subjugation and governance.

"How can you show jurisdiction kung uninhabited, how can you show economic activity if it is just a formation of rocks? If you subjugate it but did not govern it in its inchoate meaning, it did not ripen into something that you own."

"Sabihin na natin [in the] 1200s it was in their map...for the sake of argument, but if they had no economic activity. Was there any jurisdiction, administration in that island or in the middle of the sea?"

Senator Edgardo Angara says there are historical maps dating to the 1734 that show the Scarborough is part of Philippine territory.

Multilateral solution a must

Instead of pursuing bilateral discussions, Calleja says the Philippines should assert its sovereignty over the disputed area and bring the matter before the United Nations General Assembly and other international bodies. 

"We would like to have a multilateral solution to the problem. We have to have a stronger resolve and we have to bring in other nations to a critical situation... Let's stop any bilateral discussion with China because it would mean indirectly admitting to their position."

China, a permanent member of the UN Security Council has a 2-veto power. It is insisting on its own claim over Scarborough and the 9-dash line.

'Is it habitable?'

To arrive at a peaceful resolution, Calleja proposes questioning the maritime status of the formations in the disputed area, adding the Philippines should be firm in its resolve.

"What if I go to the UN body, ITLOS, and ask for a definition of what is a rock? What is a coral reef in the middle of the ocean? Is it habitable, uninhabitable? And if such, is it capable of being part of a country, of being discovered and ruled? If not then nobody is capable of ownership then only the EEZ would cover it."

Calleja notes failing to do so would mean the Philippines has given up on other territories it is claiming in the West Philippine Sea. 

"If we cede our claim to Scarborough, we're practically saying 9-line is valid, Spratly."