The Aquino administration’s grip on international law issues was tested recently in three pressing international incidents.
The first to test the administration’s mettle was the situation in Syria. Embattled Syrian President Bashar al-Assad has been accused of the crime against humanity of murdering no less than 9,000 civilians, many of whom have been supporting anti-Assad protests in the capital of Damascus. Almost all of the world’s leaders have condemned the Syrian president for these barbaric acts. The international community has furthermore called for a ceasefire and for Assad to honor a peace plan brokered by former United Nations Secretary General Kofi Annan. The pressure on the embattled Syrian president reached its climax when the UN Human Rights Council put to a vote a resolution deploring the “brutal actions of the Syrian regime” and “reiterating the need to urgently address humanitarian needs.”
P-Noy’s (Aquino) administration, citing the need to protect Filipino workers trapped in Syria, abstained from the vote.
Just how would abstaining from a resolution asking Syria to comply with its obligations under international law adversely affect Filipinos in Syria? On the contrary, part of our Diaspora would in fact benefit if Syria, through concerted international pressure, could be made to refrain from committing further illegal and inhumane acts. It is the breach of international law, and not the international pressure to put an end to these acts, that constitutes the primary threat to the safety of Filipinos in Syria.
The second test came with the now failed launch of a long-range missile by North Korea. The legal issue arising from the launch was that it would be a breach of UN Security Council Resolution No. 1874, which authorized an arms embargo against North Korea in an effort to pressure it to halt its nuclear program. This was what international leaders meant when they declared North Korea to be “committing an international wrong” when it pushed through with its rocket launch.
Admittedly, Aquino did declare in a speech to mark the opening of a Korea war memorial that “the use of ballistic missile technology in any launch violates UN Security Council resolutions, and it presents risks to all concerned.” Perhaps where he could have been more emphatic is in asserting that since debris of the launch could land in Philippine territory, then the Philippines stood to be injured by North Korea’s illegal acts. He could have demanded a halt to the launch because it would cause damage and injury to the Philippines, invoking the rule that no state shall allow the use of its territory in a manner that would injure another state. Clearly, the launch, no matter that it failed, would have additionally violated this rule, and not just the UN Security Council resolution.
Finally, the manner by which the Aquino administration dealt with the incursion of Chinese vessels in Scarborough Shoal highlights the need to further build Philippine capacity in international law. To begin with, the administration should have made it clear to the Filipino people that the issue concerning Scarborough Shoal is separate and distinct from the dispute over the disputed Spratly islands in the West Philippine Sea. This is because Scarborough Shoal presents issues that are less insurmountable than those arising from the dispute in the Spratlys.
The difference between Scarborough Shoal and the Spratlys is both physical and legal. As a shoal, Scarborough does not involve conflicting claims to land territory. Accordingly, the Philippine claim to it may be resolved wholly on the basis of the United Nations’ Convention on the Law of the Sea (Unclos). And without a doubt, the Philippine claim to the area is superior because it falls within its 200-nautical-mile exclusive economic zone. This gives us the exclusive right to explore and exploit the living resources in these waters. The Spratlys, on the other hand, and this is contrary to repeated declarations by the Department of Foreign Affairs, cannot be resolved wholly through the Unclos. The reason is obvious: The Unclos only deals with the sea and cannot be applied to disputed islands.
The point is: With the incursion of China in an undisputed maritime area under the sovereign right of the Philippines, we could avail ourselves of the mandatory and compulsory jurisdiction of the UN Tribunal of the Law of the Sea, which we could not otherwise resort to in the case of the Spratlys. This is because unlike issues involving the exercise of sovereign rights, which are subject to the compulsory jurisdiction of the tribunal, conflicting claims to both maritime and land territory will require the consent of China to litigate.
Ergo, Aquino should cease to engage in saber-rattling with China on Scarborough Shoal, an encounter that we can never win, anyway. But neither should we be content with whining and hoping that Uncle Sam will eventually come to the rescue. We should, instead, use the law that is in our favor and go and sue China, the bully—in the appropriate legal forum.
H. Harry L. Roque Jr. teaches public international law at the University of the Philippines, and is the director of the Institute of International Legal Studies of the UP Law Center.