We won. How sweet the taste of victory, and against a giant at that. We should take the time to analyze this victory, and maybe the process can be applied, in the manner of following a recipe, in other matters of importance. And then we must also take care that this victory doesn’t turn into ashes in our mouth due to neglect, or because private, individual, or corporate interests have taken precedence over national interest.
Make no mistake about it. It was a tremendous victory for us. Reader, don’t get distracted by the naysayers who want to know why our fishermen still cannot go to Scarborough Shoal, and because they were prevented from doing so, the naysayers then conclude that the victory we claim is empty.
What did we get? Only consider:
China’s nine-dash line, which covered 80 percent of the South China Sea, was declared invalid, illegal, and inconsistent with the United Nations Convention on the Law of the Sea (Unclos), to which the Philippines and China are both signatories. Not only that, China’s claim of historical rights was also declared baseless.
China’s actions subsequent to the filing of the case—including the damage to the environment (i.e., the destruction of coral reefs, the killing of sea turtles, the endangering of marine life)—were also found to be in violation of the Unclos.
Mischief Reef, Reed Bank, Scarborough Shoal, among others, are all part of the 200-mile exclusive economic zone of the Philippines. Meaning, we own them, and all of about $3 trillion worth of natural and mineral resources that are there. Underline the word “exclusive.”
In other words, we got practically everything we asked for.
So if our fishermen cannot enter Scarborough Shoal as yet, consider that a small price to pay. They eventually will get there—maybe in five to seven years. China’s intransigent position should soften—it is roaring and raging, in an effort to save face—if the experience of other countries similarly situated is to be followed.
Yesterday at the Malcolm Hall in the University of the Philippines College of Law, there was a symposium, “Upholding the Law of the Sea Convention and the Post-Arbitration Philippine Challenge.” The good guys were in attendance—those responsible for the country’s success with regard to the issue of the West Philippine Sea (WPS). There was Ambassador Albert del Rosario (AR), former foreign secretary. There was Senior Associate Justice Antonio Carpio (AC) of the Supreme Court. And there was Lawrence Martin, counsel for the Philippines in the Philippines vs. China arbitration.
I am so glad these people received the praise (and applause) they deserve, for having been instrumental in our success. Malcolm Hall was packed, and the media were there, so no doubt you will hear or read about it. What I am going to focus on is the story behind the story: how the decision to go the arbitration route was made, who were for and who were against it, the efforts that were made to undermine our case.
Hark back to 2011 or thereabouts. The Philippines was in a desperate position, and so was our Department of Foreign Affairs. It had tried the political route, and the diplomatic route, to get China to see sense and stop stepping on us with impunity. Nothing worked. And obviously we didn’t have the military might to get physical. Things were looking dismal. Too many confrontations, in which we lost.
Along comes AC. He was very familiar with the Unclos, having been the ponente in the Supreme Court decision which ruled on the constitutionality of the baselines law. Concerned with what China was doing, AC wrote a memo to AR titled “Philippine Strategy in the West Philippine Sea.” The memo actually foretold what was going to happen in the WPS given the change of leadership in China and given that the new premier was going to have to show off to his people. The memo said that China should be stopped in its tracks, and the only way to do it was the legal way: arbitration. He then outlined his theory, and suggested that AR validate it with international lawyers expert in the law of the sea.
AR, going nowhere with politics and diplomacy, pursued the suggestion, and looked for the experts. The lawyers thought AC’s theory would more than fly. AC had very carefully removed any discussion of territorial integrity from the table. Simply the law of the sea. Smart.
The next step was to convince P-Noy. Remember, this step was going far beyond anyone’s comfort zone, and P-Noy was no exception. His first reaction was: Why do we have to file a case? The Chinese haven’t seized Scarborough Shoal! (Remember, this took place in 2011.)
But AC’s prophesy came to pass in less than a year (June 2012 was when the Chinese drove us out of Scarborough). The United States then brokered an agreement between the Philippines and China, where both were supposed to withdraw. The Philippines kept its word. China did not, and stayed put in Scarborough.
Not only that, but at the end of the year, while Asean was meeting in Cambodia, P-Noy was told by the vice premier of China that their occupancy of Scarborough was to be permanent. Of course, AR was also told the same thing by his Chinese counterpart.
The nerve! I suppose they thought we would just roll over and play dead. But P-Noy and AR are made of sterner stuff. The question essentially before them, to borrow the language of Henry Bensurto, consul general in San Francisco (who made an excellent presentation yesterday) was: We are being raped. Do we sit back and just try to enjoy it, or do we scream and make everybody notice? (Continued next week)