There is a Bully in Our Backyard Cornelio A. Estillore President Benigno S. Aquino signed Republic Act 10627 or the Anti-Bullying Act of 2013 last September 12. However it is not the kind of law which the Philippines is needed to the address bullying it experienced in the international scene. It is the bullying in the school against students. We are discussing here the biggest threat of the Philippines as an independent nation and the test to its sovereignty - the ongoing bullying of Peoples Republic of China (PRC). ‘No man is an island’ – famous quote of John Donne, an English lawyer and metaphysical poets. The meaning of the quote is that man is a social being that cannot exist without his fellows. No one is self-sufficient and everyone relies on the other for successful survival. Thus, States adapts this principle for indeed in order to compete and survive in these fast changing needs of its society they must cooperate and open its doors to the world. The expansion of the scope of international law is nothing short of revolution. Every States has the obligation because the international concerns has to be addressed it include the regulation of space expedition, the division of the ocean floor, the protection of the human right, the management of international financial system, and the regulation of the environment. Beyond the primary concern for the preservation of peace, now covers all the interest of contemporary international and domestic life. This being affected by various factors: rapid changes in technology, the multiplication of number of states with different backgrounds and achieving loose form of cooperation, fear of war, rising demands for social reform. The concept of international law is that it the body of rules and principles of action which are binding upon civilized states in their relation to one another. Before, the States are the primary element in the function and evolution of this concept, where the fundamental concern of international law is basically is dealt exclusively with regulating the relations between states in diplomatic matters and in the conduct of war. Nowadays, the involvement of international organization and even individual are being welcome, but the sovereign states remain as the principal subjects of international law. The Philippines’ Concern As provided by the Art. II Sec. 2 of the 1987 Philippine Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, quality, justice, freedom, cooperation, and amity with all nations. Thus, it incumbent upon in our legislation to promote and pursue an independent foreign policy, in its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, and the right to self determination. In this regards, to ensure the prosperity and independence of the nation and free the people from poverty the state has to provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. At present Philippines launched arbitration case before the UN arbitration last January 22 when the Philippines served China with a notification and statement of claim with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea (South China Sea). There is a need to assert our sovereignty over the island group of Spratly because it would serve as a catalyst on Philippine foreign relations in asserting its sovereignty and on how the realm of public international law works on this issue. It is to be noted that when a State adheres to the principle of international law as when a state consent to be bound then the International Court of Justice can bind the same. Threshold question really is whether the People Republic of China (PRC) can be bound by UNCLOS courts and tribunals, including its arbitral panels. The PRC ratified UNCLOS in 1996, but in 2006 the Chinese government filed a statement with UNCLOS saying that it does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a), (b), and (c) of Article 298 of the Convention. These provisions of the Convention refer to Compulsory Procedures Entailing Binding Decisions issued by at least four venues: the International Tribunal on the Law of the Sea, the International Court of Justice, an arbitral tribunal which may refer to the Permanent Court of Arbitration (PCA), and a special arbitral tribunal. While there are venues available for the resolutions of disputes under the UNCLOS regime, the PRC does not wish to be bound by its compulsory processes -- the ICJ and PCA included. In essence, it wants to be able to pick and choose which statutes of the treaties it has voluntarily signed it wishes to adhere to, and be free to ignore those that it finds inconvenient. Can a state remain a party to a treaty or convention without being bound by its rules? Can contracting states adhere to an international legal regime and simultaneously opt out of any binding force required or to be required by that regime? Spratly became the centrepiece The Spratly Islands are very important for a number of reasons: the Spratly area holds significant reserves of oil and natural gas, it is a productive area for world fishing and commercial shipping, and coastal countries would get an extended continental shelf. Hence, if given the favourable decision, the Spratly would saves the Philippines from all its sovereign debts paving the way into progress and prosperity, free the nation and its people from the bandits of poverty and economic uncertainty. Although the proximate cause of our claim is basically the economic potential of the island group but it submitted that it is more on the advancement of our right as nation and protection of our international integrity as a sovereign state. But when energy giant Exxon Mobil discovers oil off the coast of central Vietnam, a section of the South China Sea that lies within the area claimed by China. The discovery prompts Philippine and Vietnamese leaders to agree to reinforce their maritime cooperation in the region. “The potential for what lies beneath the sea is clearly a big motivator” in a recent shift by China to a more pugnacious posture in the South China Sea, said William J. Fallon, a retired four-star admiral who headed the U.S. Pacific Command from 2005 until 2007. China is wary of pushing its claims to the point of serious armed conflict, which would torpedo the economic growth on which the party has staked its survival. Given the vast potential amount of untapped natural resources beneath the sea in West Philippine Sea, China has aggressively issued and propagated its highly disputable nine-dotted line (nine-dash line), it refers to the demarcation line used by both the governments of the Peoples Republic of China and the Republic of China (Taiwan) for their claim in the South China Sea. The resources and minerals underneath the sea of this island group are much needed by the Chinas ongoing rapid industrialization considering they are the largest manufacturing in the world. They needs vast amount of raw materials to fuel its economy, second largest in the world after US, in order to attain its goal as a ‘moderately well off society’ in 2020 and fully developed nation by 2049 in the 100th years anniversary of the founding of the Peoples Republic. The Philippine Claim The Philippines base our claims of sovereignty over the Spratlys on the issues of Res Nullus and geography. The Philippines contend their claim was Res nullius as there was no effective sovereignty over the islands until the 1930s when France and then Japan acquired the islands. When Japan renounced their sovereignty over the islands according the San Francisco Treaty there was a relinquishment of the right to the islands without any special beneficiary. Therefore, argue the Philippines, the islands became Res nullius and available for annexation. In 1956, a private Filipino citizen, Tomas Cloma, unilaterally declared a state on 53 features in the South China Sea, calling it Freedomland. As the Republic of China moved to occupy the main island in response, Cloma sold his claim to the Philippine government, which annexed (de jure) the islands in 1978, calling them Kalayaan. On June 11, 1978, President Ferdinand Marcos of the Philippines issued Presidential decree No. 1596, declaring the Spratly Islands (referred to therein as the Kalayaan Island Group) as Philippine territory. The Philippine claim to Kalayaan on a geographical basis can be summarized using the assertion that Kalayaan is distinct from other island groups in the South China Sea, because of the size of the biggest island in the Kalayaan group. A second argument used by the Philippines regarding their geographical claim over the Spratlys is that all the islands claimed by the Philippines lie within its 200-mile Exclusive Economic Zone according to the 1982 United Nation Convention on Law of the Sea. This argument still requires that the islands were res nullus, though. The Philippines also argue, under maritime law that the Peoples Republic of China can not extend its baseline claims to the Spratlys because the PRC is not an archipelagic state. It is said that the Philippine claim over the islands is so strong that this gigantic neighbour has nothing to do but imploring its very obvious military supremacy over ours’. They are building structures which under the convention is violation of the international law. They threat and bully us literally. While China continues violating our national integrity by mean of force and intimidation, the Philippines formally submitted it claimed to UN arbitration as adherence to peace and comity with all nations. It is not the first time that the Philippine successfully handover it’s claimed overt a certain territory, the Philippines has just rewarded by the United Nation Commission on the Limits of the Continental Shelf (UNCLCS) on its claim on Benham Rise. It was submitted as part of petition expanding the archipelagos baselines and exclusive economic zone through a law that also included other claims involving disputed territories of the Kalayaan Islands (Spratly Islands) and Scarborough Shoal. Although the land form, in itself, is not disputed, the petition still received some criticism inside and outside the country because of its controversial nature. According to the governments claim, based on a set of guidelines by the Commission on the Limits of the Continental Shelf, the area satisfies the 350-mile constraint line since the outer limits of the continental shelf are located landward of the constraint line, which is located 350 miles from the baselines where the measurement of the breadth of the territorial sea begins. Thus, to apply the principle of stare decisis our claim over the Spratly Islands is within reach. But the real problem of Philippine claim is the enforcement, although it is well known that China is also a signatory of the UNCLOS thus make them also bound with the decision of UN, but can the UN has the power to enforce. Most of the time, all the UN can do is censure. This objection is based on the exaggerated notion of sovereignty as embodying an individualist regime. Does public international law works? If the UN has no teeth to enforce its decision, does there is really a need to have and abide the concept the public international law as part of the law of the land. According to Fr. Bernas, “The reality is social interdependence and the predominance of the general interest. The reality is that States are bound by many rules not promulgated by themselves.” It is submitted that the concept of international law underlying to the more complex preparation to the so-called perfect league of all nations, wherein all States are bound to the promotion of common interest of society and the principle of general welfare. Thus, at this point in time international law are in the process of transition, change, and evolve in order to cater the demand of society in which all the inhabitant of this planet can mutually benefited. The fast changing of times and the evolution of society needs to have guiding force to bind each and everyone so that no one will be left behind. There is a need to have higher order, a higher ordinance or reason promulgated by equally higher legitimate authority so that the promotion of general welfare in the international realm would be balanced, respecting the status of the country, its historical bondage, and even its economic consideration. And there is no other entity can make this possible that is in the realm of public international law. Indeed, no man is an island; everyone needed someone, vice versa, to survive and have the harmony and attain the harmony and peace. The use of force and intimidation against other is a crime in itself and it should not be tolerated just because the perpetrator is powerful or influential. Every citizens and subjects must be conscious that all the minerals and resources bestowed to us is not given to be used only to the chosen few it should be shared to all. There would be a lasting peace on Earth when every individual on land erase the egoistic side of humanity, what we need is perfect harmony with all the nation, and build the structure of international comity, where people in all walks of life respective the colour of his skin, social status, or race are within the same footing. Public international law in the present maybe too young to condense what really essential in the international society; still, needs to be nurtured and keep abreast so that in due time everyone in this planet will live lasting peace and prosperity. The most of all is freedom from all form of adversaries.
Posted on: Sat, 26 Oct 2013 03:21:36 +0000
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