Q&A on SCS dispute

During the past six Sundays, I devoted this space to our disputes and dilemmas (and their possible solutions) in the South China Sea (SCS), especially in our exclusive economic zone (EEZ). I will now answer within my limited space some questions raised by readers.

Q1. By writing on Aug. 18 and 25 that we could extract the natural resources in our EEZ beyond the arbitral award, were you suggesting that we waive and forget said award?

A. No, I never suggested that. I said on Aug. 18 that “even without the award,” President Duterte could simply invoke China’s implied admission of our maritime entitlements in our EEZ as shown by China’s “Note,” dated April 13, 2009, to the Secretary General of the United Nations. And on Aug. 25, I wrote categorically that “without waiving the award directly or indirectly,” the President could simply invoke said “Note.”

Q2. Why is it necessary to invoke this letter? Why not just insist on China’s unconditional obedience to the award?

A. The arbitral body has no power to enforce obedience to its awards. Neither do we have the military, political or economic clout to do so. China has repeatedly said it did not recognize and will not follow the award. But it never denied its April 13, 2009 letter. So, my advice is/was to cite said letter in the negotiations with China. After all, our goal is to exploit our EEZ’s resources, and the award is just one of the ways to achieve that goal. There are other ways.

Q3. If Xi’s rejection of the award was expected, why did President Duterte raise it?

A. To avoid an implied waiver of the rights granted therein. The arbitral award is not a judicial decision of an international court and could be waived. It does not form part of international law or jurisprudence and binds only the parties thereto.

Q4. Why do we need to negotiate when the award is clear in recognizing our maritime rights?

A. The past administration of President Benigno Aquino III secured that award in the belief that it could persuade China to obey it. However, President Duterte thinks that the best way is friendly negotiation. Under our laws, the incumbent president has the prerogative to determine our foreign policies, and the ways and means to enforce them.

Q5. Has this friendly stance accomplished anything beneficial to us?

A. Yes, China (1) allowed Filipinos to fish in the Scarborough Shoal, which it now occupies; (2) desisted from its original plan to construct structures, like airports and missile silos, there; (3) did not assert the 12-nautical-mile territorial sea of the shoal which overlaps our EEZ; and (4) recognized our equally important economic, political and trade relationships.

Q6. To compel China to obey the award, why not just invoke our US defense pacts?

A. Neither our Mutual Defense Treaty nor our Enhanced Cooperation Agreement obligates the US to protect our EEZ. The US will act only when its national interest is threatened. Note that while its navy and air force roam the SCS to pursue freedom of navigation, it has not done much to confront what its own intelligence chief for its Pacific Fleet, Capt. James E. Fanell, revealed as Chinese fortifications and militarization of seven features in the Spratlys, two of which are located in our EEZ, the Mabini Reef and the Panganiban Reef.

Q7. As a lawyer and a jurist, don’t you think that the best way to settle disputes is by litigation or arbitration?

A. I believe the best way to resolve a dispute is peaceful negotiation or mediation to find a win-win solution. This is especially true in international relations. But even in domestic cases, our Supreme Court encourages out-of-court settlements, especially in civil and commercial cases.

You see, litigants are never completely satisfied with imposed judgments or awards; the losing party almost always complains of injustice or bias. Litigations, decisions and awards may decide legal issues, but they do not heal broken relationships which sometimes lead to bruised egos and to more complex litigations, armed vengeance, vicious hostilities and generational enmities among the successors and heirs. When problems are mediated or negotiated toward win-win solutions, the parties’ prior amiable relationships are restored. Peace and friendship reign again.

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