Against legal scholarship by labeling

Without naming names, University of the Philippines College of Law Associate Professor Jay Batongbacal recently posted insinuations on Facebook that an alternative analysis on the best way to move the discussion on Philippine interests in the West Philippine Sea boosts “Chinese misinformation.”

To make matters worse, he has charged that its promoters are wrong to say that the 2016 South China Sea Arbitral Award eliminated Philippine sovereignty and possession of the Kalayaan Island Group (KIG) by abolishing Presidential Decree 1596, the 1978 Marcos edict that created the KIG.

We had indeed been advancing a view on the question different from his, but his charges are a gross misrepresentation of our view verging on intellectual dishonesty.

We thought it best to respond by bringing the focus back to the merits of the issue.

We have argued that in paragraphs 573 through 574 the Arbitral Tribunal declared that there is nothing in the UN Convention on the Law of the Sea, or in customary international law, or in the history of the South China Sea, that would justify the adoption of baselines or boundaries enclosing the Spratly Islands as an offshore archipelago.

In paragraph 574, the Arbitral Award specifically referred to the Philippines and declared that “even the Philippines could not declare archipelagic baselines surrounding the Spratly Islands.”

For emphasis, paragraph 575 declared that UNCLOS “excludes the possibility of employing straight baselines … with respect to offshore archipelagos not meeting the criteria for archipelagic baselines.” Just to be clear, paragraph 576 declared that “notwithstanding the practice of some States to the contrary, the Tribunal sees no evidence … of a new rule” that would permit the treatment of the Spratly Islands as an offshore archipelago.

It is clear that the continued treatment of the Spratly Islands as Troung Sa (Vietnam) or Nansha Qundao (China) or Kalayaan Island Group (Philippines) would not be consistent with the Arbitral Award.

To maintain its claim over the Spratlys, the Philippines needs a new baselines law pertaining to specific rocks in the area.

Prof. Batongbacal correctly states the obvious that the Philippines effectively occupies Pag-asa, Patag, Lawak, Kota, Panata, Likas, Parola and Rizal and that it has an outpost on Ayungin Shoal using the BRP Sierra Madre.

Our occupation of these features does not extend to the other features that we must claim as territory, including those occupied by China, Vietnam and Malaysia.

With respect to these other features, the Philippines must perform an act of sovereignty. As the use of force or deployment of the military to these features are precluded by international law, the Philippines must exercise sovereignty through legislation pertaining specifically to these features.

Prof. Batongbacal states that prior occupation by the Philippines of nine (9) features was consolidated through the enactment of PD 1596. He therefore admits that legislation is an act of sovereignty.

With respect to the features already occupied by the Philippines, PD 1596 indeed reinforces our claim, especially to Pag-Asa or Kalayaan as this is named in the law.

As to the individual features being claimed but not occupied by the Philippines or named in PD 1596, title to them can only be based on actual exercise of sovereignty, such as a new baselines law identifying them by name and coordinates.

In Nicaragua v. Colombia (para. 81-82), public legislation and administration as evidence of acts of effectivités must pertain specifically to the disputed territory rather than a mere “group of islands.” This is the intertemporal rule of international law applicable to the South China Sea.

PD 1596 does not meet this rule. A new baselines law will.

It goes without saying that territorial issues are beyond the scope of the Arbitral Award.

However, the effect of paragraphs 573 through 574 is to reconfigure the disputed territory from one characterized as an offshore archipelago into individual rocks with territorial seas. The Arbitral Award does not decide the conflicting claims to these features but it compels a redefinition of these claims to conform to the features as individual rocks rather than an offshore archipelago. PD 1596 is now obsolete.

Prof. Batongbacal must read the Admissibility Award, the Arbitral Award and all its annexes. He will realize that the Philippines itself represented to the Arbitral Tribunal that the features in the SCS are individual rocks rather than an offshore archipelago.

On the basis of this representation, the Arbitral Tribunal accepted jurisdiction over the Philippine submission. In fact, the discussion in paragraphs 573 through 576 is in connection to the issue of whether the features in the SCS form an offshore archipelago. Estoppel operates.

The Arbitral Award is a source of norms outside the Philippine domestic legal system. Its incorporation requires legislation, specifically through the adoption of a new baselines law. The Arbitral Award and PD 1596 cannot co-exist. As the Arbitral Award does not automatically repeal PD 1596, its enforcement in the Philippines entails replacing PD 1596 with an implementing law.

Prof. Batongbacal must be consistent. He cannot mock Philippine law enforcers that they are not enforcing the Arbitral Award while insisting that PD 1596 be maintained even when this is inconsistent with the Arbitral Award. He cannot cherry pick.

Whatever it is that PD 1596 established – whether boundaries or baselines – its effect is obvious: it created a single territorial unit or, if you will, an offshore archipelago. Even as the Philippines never mentioned the KIG during the arbitration, the Arbitral Tribunal, in the exercise of its due diligence obligation under Article 25 of its Rules of Procedure, made sure to declare that no  littoral state, including the Philippines, may claim the Spratly Islands as a single unit.

We have suffered five years of intellectual paralysis over the South China Sea dispute. It is time to invigorate our intellectual life by starting our culture of critical analysis and independent thinking. Let us begin by looking beyond labels and into the hard facts and law, beginning with the text of the Arbitral Award.

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Francis H. 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 three Manila law schools. — Francis H. Jardeleza, Melissa Loja, and Romel Bagares