Del Rosario’s position is the wiser strategy

JUST TWO days after Foreign Secretary Albert del Rosario correctly invited China to settle the Scarborough Shoal controversy peacefully in the International Tribunal for the Law of the Sea (Intlos) to “ascertain which of us has sovereign rights over the waters surrounding Scarborough Shoal where Chinese ships are currently engaging in illegal activities within the Philippine exclusive economic zone (EEZ),” the Department of Foreign Affairs, through its spokesperson, issued a position paper advancing what seems to be a contradictory view:  that the Philippine title to the shoal is anchored on rules applicable to acquisition of land territory, or effective occupation. In other words, Del Rosario framed it as a claim over the waters based on the United  Nations Convention on the  Law of the Sea (Unclos), but the DFA statement framed it as a claim over land  based on customary law. Del Rosario’s position is the wiser strategy and is more advantageous to the Philippines.

This is all too apparent in the position paper that the DFA released to the media: “The name Bajo de Masinloc was a name given to the shoal by Spanish colonizers. In 1792, another map drawn by the Alejandro Malaspina expedition and published in 1808 in Madrid, Spain, also showed Bajo de Masinloc as part of Philippine territory. These maps showed the route of the Malaspina expedition to and around the shoal. It was reproduced in the Atlas of the 1939 Philippine Census.”

Moreover, the DFA also claimed that “Philippine flags have been erected on some of the islets of the shoal, including a flag raised on an 8.3-meter-high flagpole in 1965 and another Philippine flag raised by Congressmen Roque Ablan and Jose Yap in 1997.” The Philippines also built and operated a small lighthouse in one of the islets.

Why does this later position contradict Del Rosario’s earlier statement?

The answer lies in the fact that the Unclos—on the basis of which the Itlos can exercise mandatory and compulsory jurisdiction over Scarborough Shoal as an issue of “interpretation” of the Convention—applies only to maritime territory, not land.

This was why Del Rosario challenged China to resolve the issue of “sovereign rights,” or the exclusive right of a country to explore and exploit natural resources found in its EEZ, or waters within 200 nautical miles from its baseline.

On the other hand, the law on effective occupation of land territory is founded under customary international law and, hence, is beyond the purview of both the Unclos and the Itlos. It is in fact the best way to support China’s position that the Itlos, or any other international tribunal, cannot exercise jurisdiction to resolve the Scarborough impasse without its express consent.

Moreover, although the jurisdiction of the Itlos is compulsory for issues involving the interpretation of the Unclos, including the exercise of  sovereign rights, the Unclos still allows states to opt out of the jurisdiction of the Itlos on other matters. China has in fact reserved the following matters from the jurisdiction of the tribunal: disputes “relating to sea boundary delimitations, or those involving historic bays or titles,”   “disputes concerning military activities, including military activities by government vessels and aircraft engaged in noncommercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction.” Effectively, this means that we can only invoke the compulsory jurisdiction of the Itlos on the specific issue of which country is entitled to exercise sovereign rights in the waters of Scarborough Shoal, and perhaps, the issue of whether the shoal is a rock that cannot sustain human habitation or economic life of its own under Art. 121 (3) of the Unclos.

This is not to say that the position paper is wrong in asserting title over the disputed shoal. The reality is that we are also claiming the 125-square-meter shoal as part of our land territory. But this claim should be advanced cautiously, at least not to the extent that it might divest the Itlos of its mandatory jurisdiction to rule on the more important issue of the exercise of sovereign rights over a body of water with a breadth of 200 nautical miles. Certainly, gaining title to an insignificant coral reef should not be at the expense of this rare opportunity to resolve a brewing military dispute peacefully through an international tribunal.

In any case, not much will be gained by the Philippines even if we can prove a superior claim to the shoal itself. Under Art. 121 (3) of the Unclos, “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Accordingly,  the state that is able to prove  a superior claim to the shoal itself will only have title over the very small shoal and, at most, a 12-nautical-mile territorial sea around it.

The point, however, is because recent events have proven that we are no match to the military firepower of China, and that  precisely because of this, China prefers gunboat diplomacy over international litigation in resolving these maritime disputes, it is crucial that our policy strengthen, and not weaken, the jurisdictional anchor by which tribunals such as the Itlos could resolve this latest dispute.

It will not be to the national interest if because of the wrong characterization, the Itlos may lose its compulsory and mandatory jurisdiction to settle a dispute involving a regional bully.

H. Harry L. Roque Jr. is director of the Institute of International Legal Studies, UP Law Center.