All options on the table

Former chief justice Artemio Panganiban proposes that the justice secretary and the foreign affairs secretary form a team of “international jurisconsults” to strategize how to bring China to the International Court of Justice (ICJ) for the adjudication of our territorial and maritime claims in the West Philippine Sea (WPS).

For him, the Philippines should have opted for adjudication under the Statute of the ICJ rather than the South China Sea (SCS) Arbitration under Annex VII of the UN Convention on the Law of the Sea (Unclos). This is a far cry from the conciliation under Unclos originally pitched by former justice Antonio Carpio and Prof. Jay Batongbacal.

As ordinary citizens, we put forth a proposal for a new baselines law that strengthens our position preparatory to any adjudication of territorial claims. President Duterte has ordered urgent complete staff work on it. This signals that all other proposals are welcome and would be carefully studied, but time is of the essence.

In a declaration on Jan. 18, 1972, Foreign Affairs Secretary Carlos P. Romulo reserved from the compulsory jurisdiction of the ICJ “disputes … in respect of the continental shelf…[and]…the territory of the Republic of the Philippines, including its territorial seas and inland waters.”

China has not accepted compulsory jurisdiction under Art. 36 of the ICJ Statute. Neither has Vietnam, which claims 27 features, nor Malaysia, with seven claimed features. All claimants may, however, enter into a special agreement under Article 40 for the World Court to adjudicate both territorial and maritime disputes. The reservations made by China and Malaysia to Unclos compulsory arbitration of maritime delimitation issues are no impediment to such a special agreement.

When we filed in 2013 the SCS Arbitration against China, we signified that through Republic Act No. 9522 we surrendered historic title to the waters enclosed by the Treaty of Paris limits as territorial waters (Arbitral Award, para. 223). Thus, the reservation has no relevance to that portion of the WPS.

The reservation remains as to any delimitation of the overlapping territorial seas of rocks in the WPS. Yet, it is erroneous to assume that the Arbitral Award resolved all the maritime claims of the Philippines. The settlement of the territorial status of the contested rocks within 200 nautical miles from the archipelagic baselines of the Philippines would also entail the delimitation of any overlapping territorial seas. This matter was beyond the remit of the SCS Arbitral Tribunal.

Alternatively, the Philippines may enter into a special agreement with all claimant states to register our mutual consent to the jurisdiction of the ICJ. With respect to China only, the Philippines has a special agreement accepting compulsory ICJ jurisdiction under Art. 2 of our 1947 Treaty of Amity. We can agree to a protocol expanding the scope of compulsory adjudication by the ICJ.

As the Philippines has not withdrawn its reservations, we can only speculate on what might be, should all claimants lower barriers and go into a full and four-cornered adjudication before the ICJ.

As it were, the SCS Arbitration was the most viable option.

At the next stage, the choice between immediate adjudication, diplomatic engagement, and strengthening of sovereignty claims are well within the prerogative of the President as chief architect of foreign policy. Our duty as ordinary citizens is to help clear the atmosphere of doubt and confusion so that the government, present and future, may chart a foreign policy in which we as a people are invested.

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Francis Jardeleza, retired associate justice of the Supreme Court, was State Agent in the SCS Arbitration. Melissa Loja has a Ph.D. in international law. Romel Bagares teaches international law in two Manila law schools.