China holds Panatag, but no one owns it

Laymen seeing aerial shots of Scarborough (Panatag) shoal off Zambales, with its lagoon walled in by what look like reefs with a hint of vegetation, are often surprised to know that the disputed 150-square-kilometer maritime feature is legally just a “rock.”

The shoal is a rock, according to the Permanent Court of Arbitration at The Hague in its award in July 2016 on submissions filed by the Philippines questioning aggressive moves of China in the West Philippine Sea.

Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS) upon which the PCA ruling was based provides that “rocks … cannot sustain human habitation or economic life of their own.” As such, Panatag has no Exclusive Economic Zone or Continental Shelf.

Filipinos who thought that the Philippines “won it all” at The Hague are wont to ask why the tribunal did not rule that Panatag – just 120 nautical miles from Luzon and 450 nm from the nearest Chinese land mass – be administered by Manila.

The shoal, Huángyán Dao to the Chinese, is in fact now controlled by China, with Filipinos merely being allowed by China’s Coast Guard to fish there and, sometimes, made to surrender part of their choice catch.

The PCA ruling did not say which nation owns Panatag, merely ordering that it should continue to be the common fishing ground of neighbors, including Chinese and Filipinos. We have been reporting this since 2016!

The tribunal did not resolve the sovereign question of ownership or possession, not because the Philippines did/does not own the “rock,” but because the PCA was not the proper court to decide the issue. Besides, the Philippines did not ask for such a determination.

What are the consequences of the declaration that Panatag is a “rock”? We asked lawyer Mario E. Valderrama, founder and first president (now president emeritus) of the Philippine Institute of Arbitrators (PIArb). He said:

“A ‘rock’ is not part of the sea. It could be acquired. And one of the modes of acquisition is uncontested possession in the concept of an owner for a certain period of time. In the present case, until such time that the international community would recognize the sovereignty of the possessor over the territory.

“It may be that Scarborough is within the Philippine Exclusive Economic Zone. It is not, however, part of the Philippine EEZ.

“China as possessor can, therefore, validly maintain its garrison in Scarborough, at least until the time when the issue of ownership was decided against China. Resolution of that issue could take an eternity.

“In the meantime, the Philippines can protest and protest whenever necessary, whether it be done ‘loudly’ or ‘silently,’ in order to preserve its claim.

“But, at the same time, the Philippines has to face reality. More so as it initiated the arbitration that resulted to, among others, the declaration that Scarborough is a ‘rock.’”

• ‘New case vs China risky, useless’

Valderrama went on to comment on reports that acting Chief Justice Antonio Carpio suggested that the Philippines initiate another arbitration against China.

“That is a very dangerous, and at the same time useless, move,” Valderrama said. He added:

“The concepts of res judicata (what has been decided can no longer be relitigated), immutability of a final judgment (right or wrong, a final judgment can no longer be changed) and stare decisis (decide a case in accordance with precedents) are of doubtful application in arbitration.

“That is so because there is no hierarchy of arbitral tribunals. Each and every arbitral tribunal is infallible as to the merits of the case before it.

“That is one of the reasons why consent to arbitrate is indispensable – the basic agreement is to abide by the decision of the tribunal, whether that decision be right or wrong.

“In commercial arbitration the counterbalance are the so-called grounds to challenge awards, which have nothing to do with the merits. In state-to-state arbitration the counterbalance is the lack of any enforcement authority.

“On the point, while as a Filipino I welcome the traditional fishing rights in Scarborough ruling, still I doubt if the ruling has any statutory support in UNCLOS. Anyway, the issue would necessarily end up being reopened. Just as the jurisdictional issues may also be reopened.

“The decision or award may go either way. And, on the assumption that the Philippines would win, how will Manila enforce the award?”

• Address reasons why there are ‘tambay’

There must be a better way of communicating instructions of President Rodrigo Duterte without an assortment of officials having to come in after him to explain what he wanted to say.

Take the President’s order to the police to round up neighborhood “istambay.” The instruction made off the cuff had to be interpreted by his spokesman, the national police chief and an array of other officials.

What exactly is “istambay”? Its sounding like “stand by” suggests that it may refer to those who loiter needlessly or stand idly by – which brings up questions like what’s illegal with staying in place for a time?

Is it the act or the place and/or the time that makes loitering or staying put a peace and order violation? What’s the difference between walking in the neighborhood and in the mall, or in the park?

The better question is “Why do people make tambay?” Is it because many of them are jobless? Or we lack public places for safe and healthy relaxation? Why are there more of the poor who make tambay?

Try to decipher Duterte’s order: “Ang mga criminal dapat diyan, ang mga durugista, they are not supposed to be there. So my directive is ‘pag mag-istambay-istambay diyan sa, sabihin niyo, ‘umuwi kayo. Pag hindi kayo umuwi ihatid ko kayo doon sa opisina ni ano – Pasig… Ako ng bahala. Ilagay mo lang diyan. Talian mo ‘yung kamay pati–ihulog ko ‘yan diyan sa….”

The police went to work immediately, using their best lights, and rounded up “tambays” in the streets, some of them for no apparent reason except that they happened to be there.

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ADVISORY: All Postscripts can be accessed at manilamail.com. Follow author on Twitter as @FDPascual. Email feedback to [email protected]