'See you in court'

Court litigations in any venue entail lots of expenses whether in terms of time or money. So they should be avoided as much as possible. Even from a lawyer’s point of view, it is more practical to exhaust all means to first settle a controversy out of court. But sometimes there are also cases which cannot be settled amicably because one or both parties have taken a hard-line position and uncompromising stand. One such case is the current stand-off between China and the Philippines involving the Scarborough Shoal.

Recent moves show that China is becoming more aggressive and provocative as it increases the number of vessels in the area and continues to bully and provoke us to retaliate. The Chinese are obviously doing this because they know we are not strong enough to retaliate. As of now, there are ten (10) vessels in the area again, three maritime surveillance vessels and seven fishing boats. A large Chinese Fisheries Law Enforcement Command (FLEC) 310 ship even tried to harass and scare off two small Philippine Coast Guard vessels, the BRP Pampanga 003 and the BRP Edsa 002 as it headed towards them at the speed of 20.6 knots and then veered away after coming as close as 200 yards thus creating huge waves and posing great danger to the smaller Philippine vessels. According to the Department of Foreign Affairs, this could mean a violation of the International Regulation for Preventing Collision of Ships at Sea.

Instead of easing the tension in the area, China has therefore escalated such tense situation with its latest maneuvers. These are moves that definitely do not contribute to a settlement of the dispute through bilateral diplomatic talks. They are signs that the Chinese are not after all sincere in amicably settling the dispute and that all these talks will be ultimately useless. Indeed they even refuse to bring the issue to International Arbitration or to join the Philippines in referring the case to the International Tribunal on the Law of the Sea (ITLOS).

Hence it is about time we study other alternative courses of action. Of course, the use of force is out of the question not only because this is a reckless and imprudent move but more importantly because this is contrary to Section 3 Article II of the Constitution which provides that: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of International Law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations”.

Pursuant to the foregoing declaration of principles and State policies, we should therefore pursue other peaceful means of resolving this controversy. We should invoke the principles of International Law which in this case is the United Nations Convention on the Law of the Sea (UNCLOS). As pointed out before, pursuant to this Law (Article 58) to which China is a signatory, this disputed area is clearly an exclusive economic zone (EEZ) belonging to the Philippines as it is only 124 nautical miles from the coast of the town of Masinloc in the province of Zambales and therefore within the 200 nautical miles from the coast of any country as the EEZ of that country.

In fact it can even be said that by using the straight baseline method of delineating the territorial sea of an archipelago which is also internationally recognized, the said area maybe within the Philippine territorial waters. This method consists of drawing straight lines connecting appropriate points of the outermost eastern, northern, western and southern coasts of the Philippines thereby creating a rectangular area. And all the waters within 3 miles from that rectangular area are also part of the Philippine territorial waters.

Our claim is thus clearly based on International Law. China’s claim on the other hand is merely based on self-serving historical assertions that the said shoal is located within the South China Sea and that it was discovered by the Chinese people who named it Huangyan Island. Assuming that this is really a historical fact, then China should have not signed the UNCLOS which designates the area as an EEZ belonging to the Philippines or expressly excluded that particularly place from the definition of the EEZ set forth in the UNCLOS. Between our clearly legal claim and China’s seemingly unfounded historical claim, it appears that we have a stronger case.

With China’s hard line position and increasingly aggressive stance, an amicable solution to the dispute is apparently out of the question now. It is about time we consider the other alternative options. The UNCLOS enumerates five courses of action. But the best move is still to go to court. In this case that court is the International Court of Justice (ICJ). The ICJ ruling on the issue will be the most authoritative and binding as it is one of the major branches of the United Nations composed of almost all of the countries in the world more especially the major powers who are members of the Security Council.

So when China, still persists in its bullying tactics, we can just tell them: “see you in court”.

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