Beware of Beijing’s wordings — Carpio

As chairman of ASEAN’s 50th year this 2017, Manila can lead the crafting of a long-delayed Code of Conduct in the South China Sea. In this role it must stay focused on the aim of such COC not for dispute settlement but as war prevention. The wordings must be precise, admonishes Supreme Court Senior Justice Antonio T. Carpio in remarks to the Stratbase-Albert del Rosario Institute in last month’s anniversary of the Philippine victory in the UN maritime arbitration. Second of four parts:

The purpose of the COC is to regulate the conduct of the parties so there will be no skirmishes or shooting war in the SCS. The COC is not intended to settle the merits of the SCS dispute. The SCS dispute involves territorial and maritime disputes. There is already a dispute settlement mechanism for the merits of the maritime dispute, and that is found in the UN Convention on the Law of the Sea (UNCLOS) to which all disputant states in the SCS are parties. There is no dispute settlement mechanism for territorial dispute, unlike South America’s Pact of Bogota.

The Framework itself states that the COC is “not an instrument to settle territorial or maritime delimitation issues.” The phrase “maritime delimitation issues” should be changed to “maritime issues” only, excluding the word “delimitation.” There are issues under UNCLOS other than maritime delimitation, like the status of geologic features, whether such features are low-tide or high-tide elevations, and these are not delimitation issues. As worded in the Framework, the Philippines may be impliedly barred from bringing to an UNCLOS tribunal the status of geologic features in the Spratlys because only delimitation issues are excluded from the Framework. We do not want such a provision.

China’s Position Paper in the Philippine-China arbitration claimed that the 2002 ASEAN-China Declaration of Conduct (DOC), which provides for negotiations as a mode to settle disputes, is legally binding and barred the Philippines from filing the arbitration case and from invoking the UNCLOS dispute settlement mechanism. The Philippines argued that the 2002 ASEAN-China DOC is not legally binding but merely aspirational, and does not provide for negotiations as the exclusive mode of settling disputes. The Tribunal upheld the Philippine position. With this experience, we must ensure that the COC is clear – it does not supplant the UNCLOS dispute settlement mechanism on maritime disputes. Otherwise, China might again later claim that the COC bars other states from resort to the UNCLOS dispute settlement mechanism.

In the Southern Bluefin Tuna case, Australia and New Zealand were stuck in the dispute settlement mechanism prescribed in the Convention for the Conservation of the Southern Bluefin Tuna. Australia and New Zealand could not invoke the UNCLOS dispute settlement mechanism because the Southern Bluefin Tuna Convention had a dispute settlement mechanism which required the consent of all parties to any settlement. There was a permanent deadlock when Japan refused to agree to any settlement. If the COC is legally binding and supplants the UNCLOS dispute settlement mechanism, we will be stuck in a similar deadlock. If negotiations will be the only mode of settlement, China can create a deadlock by refusing to agree to any settlement. China can also simply delay the negotiations while it completes its air and naval bases in the SCS and extracts for itself all the resources within the nine-dashed lines.

The merits of the dispute should continue to be governed primarily by the UNCLOS dispute settlement mechanism. Thus, the COC regulates the conduct of parties to the dispute, while UNCLOS settles the merits of the dispute among the parties. Although related, these are essentially two different issues.

We should not re-invent the wheel – there is already the existing UNCLOS dispute settlement mechanism which guarantees a level playing field for all states – whether superpowers or small states. The UNCLOS settlement mechanism guarantees that the dispute will be resolved solely in accordance with international law. Warships, warplanes, cruise missiles and nuclear bombs do not count before an UNCLOS tribunal. That is why the Philippines won in the arbitration case against China. ASEAN disputant states should not give up this advantage and should not fall into the trap of the Southern Bluefin Tuna case where consent of all the disputant states to any settlement is required to resolve the dispute.

In an apparent rebuke of the Southern Bluefin Tuna decision, the tribunal in the Philippine-China arbitration stated that to be binding any derogation from the UNCLOS dispute settlement mechanism must be express and categorical. But the fact that China took the stand in its Position Paper that the 2002 ASEAN-China DOC is legally binding – despite China’s previous statements that it was not – forewarns us to be very precise in the language of the COC. I have to stress this: the COC must be clear that it does not supplant the UNCLOS dispute settlement mechanism.

China wants the COC to apply only to the Spratlys and to exclude the Paracels and Scarborough Shoal. The Philippines should insist on the inclusion of Scarborough Shoal in the COC. That would prevent China from claiming that if Scarborough Shoal is not covered by the COC, it is also not covered by the 2002 ASEAN-China DOC which barred the parties from “inhabiting previously uninhabited shoals.” Scarborough Shoal remains uninhabited to this day. (More on Friday)

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“Pagsambang Bayan,” the iconic anti-martial law play first staged in 1977, the fifth year of the Marcos dictatorship, is to be recast a musical. Originally employing liturgical and nationalist songs, it is set to music, dance, and digital images on burning issues of 45 years ago and today.

“Pagsambang Bayan The Musical” boasts of an award-winning creative team: Joel C. Lamangan, director; Bonifacio P. Ilagan, playwright-librettist; Jed Balsamo, musical director-composer-arranger; Lucien Letaba, contributing composer; Leeroy New, production designer; and Joey Nombres, lights designer.

Playdates: Fridays and Saturdays 3 and 7 p.m., Aug. 4-19 at the Tanghalang PUP, Polytechnic University of the Philippines Masscom compound, Sta. Mesa, Manila. Then, Sunday, Sept. 3, 3 and 7 p.m., Irvin Theater, Ateneo de Manila University, Katipunan, Quezon City.

For bookings, sponsorships, and tickets, contact Tag-ani: (+63) 9228 252604, (+63) 9228 995754, and (+63) 9088 124781/email [email protected] and [email protected].

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Catch Sapol radio show, Saturdays, 8-10 a.m., DWIZ (882-AM).

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