Disputing treason because of Itu Aba

It is unfortunate that the discussion of whether recently appointed Associate Justice Francis Jardeleza committed treason in omitting Itu Aba from our statement of Arbitral Claims is taking place with the general public in the dark on what the facts and issues are. This is because under the rules of the Permanent Court of Arbitration, which is hearing our case, all proceedings, other than the statement of claims, are confidential. It appears hence that the few media discussions taking place are on the basis of non-attributable statements of confidential disclosures made by one of the protagonists to the dispute, hiding under the cloak of anonymity. Justice Jardeleza is thus in a fix: While he has been accused of treason, he is unable to defend himself because his role as chief counsel for the Republic forbids him to discuss matters appearing in our written memorial.

I myself rely on the disclosures published by favored media outlets of the confidential source. I do not know hence if I am accurately addressing issues raised by him.

Those who accuse Jardeleza of treason argue that he should have amended our statement of claims to include the submission that Itu Aba, although the largest of the islands in the disputed Spratly’s group of islands, is not “large enough” to be considered an island that can generate an Exclusive Economic Zone (EEZ) of 200 nautical miles. The Chinese view is that the waters within its nine-dash lines are generated by land territories including Itu Aba and Huangyang (Panatag) Shoal, among others.

The problem with this view is that it assumes that the capability of an island to generate an EEZ has to do with its size. In reality, Art. 121 of the UN Convention on the Law of the Sea provides that an island’s entitlement to an EEZ depends on whether it can “sustain human habitation.” In turn, what seems to be controlling in this determination is not the size of an island, but whether the island can have a water source that can sustain human habitation. Internet sources have said that Itu Aba has a fresh water source.

In other words, to include the issue of whether Itu Aba can generate a mere 12 nautical miles of territorial sea or 200 nautical miles of EEZ is a double-edged sword. If Jardeleza’s detractors succeed in the argument that it can generate only 12 nautical miles because 80 hectares is not sufficient, well and good. But if the Tribunal should rule that the water source in the island is sufficient to make it habitable, then the Tribunal will confirm the Chinese view that the waters within the nine-dash lines are generated by land territories and hence, beyond the jurisdiction of the Unclos dispute settlement procedures.

The Philippine arbitral claim is anchored on Art. 286 of the Unclos covering issues of application and interpretation of the Convention intended by the international community as the ultimate constitution for seas. Both the subject matter jurisdiction of the tribunal, and its jurisdiction over the parties, depend on whether controversy resolves around maritime territory or sovereign rights and whether a party to such a dispute is a party to the Convention. Its jurisdiction does not include maritime territories generated by land territories. This is because the latter would amount to a “mixed claim,” so-called because it consists of territorial claims to both land and water, which would no longer amount to issues of interpretation or application of the law of the sea. The international law applicable to land territorial disputes are governed by the law of effectivities, or the rule that disputed land territory will be awarded to the claimant state with a superior claim to effectivities, or the exercise of effective occupation. The regime applicable to conflicting claims to maritime territories is the so-called “equitable principles that would result to an equitable solution.”

Moreover, to include Itu Aba in order to procure a declaration that China’s nine-dash lines are without legal basis may also trigger China’s specific subject matter reservation to maritime delimitation. If the Tribunal rejects the view that the island can only generate a 12-nautical mile territorial sea, then the Tribunal would inevitably have to rule where the boundary lies between Itu Aba’s and Palawan’s EEZ. This is a jurisdiction, which China specifically reserved from the jurisdiction of the Unclos dispute settlement procedures.

While China has opted not to participate in the arbitral proceedings, it has caused the publication of a book containing its objections to the jurisdiction of our Unclos arbitral tribunal on the basis that our claims are a “mixed claim” and hence beyond the jurisdiction of the Tribunal. Consistent with established litigation technique in international law, China has not addressed the merits of our claims, apparently confident that it will prevail in its preliminary objections to the Tribunal’s jurisdiction.

In light of the foregoing, it appears grossly unfair to accuse Jardeleza of being a traitor for his hesitancy to include Itu Aba in our arbitral claims. There are those who have openly sided with China on this issue: A colleague in the UP College of Law who was a beneficiary of a Chinese junket and who has published that the Tribunal will dismiss our claims for lack of jurisdiction. There too are Makati-based lawyers lobbying for joint use and development with China even of undisputed territories such as Recto Bank. But Jardeleza a traitor? That’s what China wants us to think.

(Harry Roque is associate professor at the UP College of Law.)