I. Introduction
Society has thrived within the bounds of the earth for as long as it can remember. Blessed with the rich bounty of the sea, and its flora and fauna, men would subsequently descend upon it with the task of manning these resources all to themselves. Through the rise of civilization, men would grow into larger communities which eventually turn into entities now called as nations. These nations persisted and endured evolution by gathering everything they needed by any means at their disposal. Naturally, they had to maintain what was in their hands so they kept searching further, conquering unchartered waters and untraveled areas, setting up expeditions and explorations on places where they believe they can attain what was necessary for their nation’s sustenance. Some of these nations flourished well through the attainment of resources while others remained stagnant, which posed as a threat on the latter. The Countries that were richer and more developed turn more arrogant and unafraid with a belief that the one who had more resources attained greater power. Having been consumed of greed, they go the distance to get more than what they already own and that is when things began to go out of hand.
It is not surprising that conflicts of such kind would play an unsightly role as a root to the different nations’ falling out. Wars would be waged, economies would be put to unease, people become oppressed and most of the innocent die. Ones who attained power and resources had the means to win the fray leaving the losing party with no other option but to surrender and follow the whims and caprices of the former. The scenario went on for centuries after centuries, the same group ruling from dynasties after dynasties had seemingly been permanent. One country would seize territory after territory and colonize nation after nation, just like how the Spaniards would to the Philippines for 300 years. It was very unsettling to the point that rights are abused and people are violated. In order for them to be free from this nightmare and to prevent it from recurring, Nations would convene and agree that to prevent war as a means of settling their issues and difference. Hence, the bloodthirsty disputes and inhumane conditions eventually came to an end with the birth of bodies such as the United Nations.
The United Nations is an International Organization created with an aim of maintaining peace and security between the League of Nations. One of the main purposes for which this body was created is to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.[1] Diplomacy has come its way and has been used a tool in maintaining the good relationship and camaraderie among the League of Nations. A number of disputes among foreign nations have been settled through peaceful means with the intervention of the UN by implementing policies and rules laid down by it with affirmation of party nations. While most of these were resolved, some still remain unheeded.
II. The Arbitral Award
One of the most recent issues that was raised and decided before the International Court of Justice involved the territorial dispute between the Republic of the Philippines and the People’s Republic of China regarding the South China Sea or in Philippine Terms, the West Philippine Sea. On the 12th day of July 2016, the waiting has ended for both countries as the said Tribunal adjudicated in the Philippines’ favor. According to a nearly 500-page decision, the Philippines emerged victorious as China’s claim which was premised on the nine-dash line was bereft of basis and thus contrary to the United Nations Convention of the Law of the Sea.
The Tribunal declared that, as between the Philippines and China, China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention; and further declared that the Convention superseded any historic rights, or other sovereign rights or jurisdiction, in excess of the limits imposed therein.[2] It further declared that China has breached its obligations pursuant to Articles 279, 296, and 300 of the Convention, as well as pursuant to general international law, to abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decisions to be given and in general, not to allow any step of any kind to be taken which might aggravate or extend the dispute during such time as dispute resolution proceedings were ongoing.[3]
III. China on its Stand on the Arbitral Award
As a rule, each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.[4] However, it seems that even if diplomacy were to be exercised by a nation, some countries just won’t budge. China as the losing party is under fire for not heeding to the decision and even made itself clear that it will not take any course of action on whatever the ICJ has decided.
In a statement released by the Ministry of Foreign Affairs of the People’s Republic of China, it stated that “with regard to the award rendered on 12 July 2016 by the Arbitral Tribunal in the South China Sea arbitration established at the unilateral request of the Republic of the Philippines (hereinafter referred to as the “Arbitral Tribunal”), the Ministry of Foreign Affairs of the People’s Republic of China solemnly declares that the award is null and void and has no binding force. China neither accepts nor recognizes it.”[5] It subsequently declared that “China’s territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China opposes and will never accept any claim or action based on those awards.”[6]
Allison (2016) mentioned that “the United States and its allies have already started criticizing China for signalling in advance that it will ignore the court’s ruling, which one Chinese official derided last week as “nothing more than a piece of paper.” He further stated that it in fact, none of the five permanent members of the UN Security Council have ever accepted any international court’s ruling when (in their view) it infringed their sovereignty or national security interests. Thus, when China rejects the Court’s decision in this case, it will be doing just what the other great powers have repeatedly done for decades.”[7]
Moslemi and Babaeimehr (2015) pronounced that “most political influence of big powers predicate lack of real political independence of small states and there is no balance in the obligation to respect the rules and the freedom of members of the international community.”[8] They further indicated that “the importance of the principle of equality of States is the result of logical reasoning, in which the principles of the prohibition on intervention in the internal affairs of States, respect for territorial integrity and political independence, sovereignty over natural resources, immunity from prosecution and enforcement of foreign governments and leaders and ministers of all states is based on the general principle of equality of states.”[9]
Ansong (2016) elucidated that “the notion that the existence of a State must not be based on, inter alia, the military or economic power it wields to assure its existence and prevent interference from other states, has evolved over the centuries and has become a foundational provision in the United Nations Charter. States are deemed equal just by their status as states under international law. Sovereign equality is therefore juridical in nature in that, all states are equal under international law in spite of asymmetries of inequality in areas like military power, geographical and population size, levels of industrialisation and economic development.”[10] Hence, all the States must abide by this norm, respect their fellow State parties on this principle at all times and not only when it is convenient for them.
a. Effects of the ICJ Arbitration’s Decision regarding Jurisdiction over China
The international law principle of Pacta Sunt Servanda states that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”[11]
Even prior to the filing of the case and the decision, China as a signatory of the UNCLOS is bound by its rules. At the very least, its duties to respect the UNCLOS had always existed prior to the decision. The ruling of the ICJ over the territorial dispute reinforced the Philippines’ claim and further strengthened China’s obligation to uphold it. Whether there was a case that was filed, the duty to conform to it has always been there. It cannot be considered that China is still faithfully executing its duties under international law if it insists on its refusal to honor the said decision. It is like saying that in not heeding to the decision which is coupled with faithful compliance of obligations on the UNCLOS, China is not recognizing the principles it has laid down. It therefore breached its international responsibility.
b. The Actions China has taken up
States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.[12] During the deliberation of the decision, China has already been violating its international obligations with respect to the protection of marine environment. This can be shown by the measures it has taken such as its construction of military bases on several islands.
The International Court of Justice in its decision, found that, “during the time in which these dispute resolution proceedings were ongoing, China:
- has built a large artificial island on Mischief Reef, a low-tide elevation located in the exclusive economic zone of the Philippines;
- has caused—through its land reclamation and construction of artificial islands, installations, and structures—severe, irreparable harm to the coral reef ecosystem at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef; and
- has permanently destroyed—through its land reclamation and construction of artificial islands, installations, and structures—evidence of the natural condition of Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef;” [13]
The UNCLOS provides that States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection. [14] They shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.[15] The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.[16]
Clearly, China’s encroachment on the Islands is a failure to uphold these aforesaid duties. This is only one of the countless and continued violation of the sovereign rights of the Philippines in its maritime spaces it has committed.
IV. The Philippines After the Decision and its Affected Constituents
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.[17]
All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.[18] Now with the help of the Arbitral Award, the exercise of these rights of the Filipino people are further strengthened. The fishermen who live along the coasts of the area in dispute are the ones who would greatly benefit from the award as their lives solely depend upon the catch they can get within such waters.
Subsequently, the Constitution mandates the state to “protect the rights of subsistence fishermen, especially of local communities, to the preferential use of local marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.”[19]
Two years later, the coveted decision remains untouched and it has been causing a lot of distress to the affected constituents. The Fishermen, the ones who are greatly troubled, were not allowed to freely navigate these waters because of China’s coercive tactics. Fonbuena (2018) said that based on a video obtained by GMA News, “men in a China Coast Guard speed boat boarding a Filipino vessel to take some of their catch. A news report aired on June 7 showed a male Chinese digging through their fish.”[20]
Viray (2018) made mention that from the interview, a fisherman named Ernie Egana told GMA News, “basta nahalungkat nila ang gusto nila, ilagay nila sa plastic, mga magaganda pa ang kunin nila (As soon as they see it, they will take what they want and put in on plastic. They even take the best ones).”[21]
Even if they were to navigate, their fish catch was being snatched by Chinese coastguards. It is as if you are being involuntarily forced out of your own backyard to allow some stranger to take your property. Sadly, these Fishermen consider to settle with this kind of set up because of the difficulties of life. To make ends meet, they still paddle through the waters with their mini boats for a possibility to fish but the catch will be bargained away to the Chinese. To them, it was better than nothing if they will not be given chances to fish anymore. These happen on a daily basis. The harassments continue to bother these fishermen and their livelihood. With the little income they produce, they continue to live a life in direr conditions and nothing is being done to stop this, let alone any evidence showing any form of assistance has been given to them.
V. The Transition of Administrations and Its Implications: The Present Administration’s Passiveness on The Matter
During the period in office of then President Benigno S. Aquino III, The Solicitor General, the participating lawyers of the Legal Team and other concerned parties invested a great deal of their time and resources just to reach the desired decision so as to obtain what they think rightfully belongs to the Country and to the People. The said administration is shown to have properly supported this and made efforts to assure it.
The stance of the Administration of incumbent President Rodrigo Duterte however, is of contrasting views from the former Administration due to his standoffish behaviour towards the award’s enforcement. Years after the prominent decision, there seems to be minimal, if anything, no such further actions have been taken so as to enforce the said arbitral award. President Duterte remains mum with the issue and has decided to push aside the arbitral award. On multiple instances, he would change his mind by saying that enforcing the award would not be the right thing to do and insisted that there were better options on his sleeve to deal with the matter. He has been telling the people over and over again on his speeches that there is a danger on insisting the enforcement of the arbitral award because there is a great possibility that China will wage war against the Philippines on our unrelenting persistence. On his point of view, the Philippines won’t handle it and what he believes is that his action is leaning towards the country’s sake.
- The President’s Duties and Subsequent Liabilities
International Law would tell that engaging and transacting with foreign countries is one of the functions of a head of state. Under Philippine Law, the President is considered the head of state. In the case of Pimentel vs. Executive Secretary[22], the Supreme Court ruled that “As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.”
Also, the Supreme Court in the Case of PMPF vs. Manglapus[23] adopted the doctrine in U.S. v. Curtiss-Wright Export Corp[24] that the President is the sole organ of the nation in its negotiations with foreign countries, viz:
x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in the original)
The President in the exercise of his Diplomatic Powers is mandated to negotiate on the International Sphere under the presumption that his actions would best the interest of the Country. Despite the prior actions of China in setting up military bases in our territories and the subsequent abuses towards the Filipino People who were merely exercising their rights to exploit the resources, it seems that the present Government is not properly formulating any solution to put a stop on these unlawful acts. What is even more disappointing is to see that the Government officials continue to show its support and kept on backing up the President by covering up for the latter’s remarks on account of his failure to act on it immediately.
Viray (2018) stated that in a Congressional Hearing that was held, DFA Secretary Alan Peter Cayetano said that “there is still slight harassment but in the past it was total harassment. Before, our ships cannot enter but now they can access the maritime environmental protection area.”[25] Further, on another account, Presidential spokesman Harry Roque told GMA News that the Philippine government would protest this incident. “Madali po ‘yan irereklamo po natin ‘yan sa bansang Tsina dahil ang pagkakaintindi natin dahil tayo ay magkakaibigan na dapat hinahayaan mag-hanapbuhay ang ating mga mangingisda doon (That’s easy, we will protest that to China because our understanding is that because we are friends, they should allow our fishermen to catch fish there),” Roque said.[26]
All of these can be attributed either as ignorance over what has actually been happening in the waters and with the people, or simply turning a blind eye on it. Yes, ignorance is bliss, but not here and not with this issue. To top it all off, the Duterte Administration has become allies with China and has severed ties with the United States of America. Believing that it was the only way to prevent the worst case scenario in pushing the decision, President Duterte then would visit China and engage in peace talks with its President Xi Jin Ping. The President intends to forge and deepen its relation in the future with China. He even signed several agreements with it, one pact for which includes monetary assistance from China under the guise that he would push aside the enforcement of the decision.
The first agreement signed was the Agreement on Economic and Technical Cooperation between the Government of the Republic of the Philippines and the Government of the People’s Republic of China. It was signed by Department of Finance Secretary Carlos Dominguez III and Chinese Ministry of Commerce Minister Zhong Shan.[27]
The Philippines is viewed to be surprisingly on the same page as China. Therefore, the problem does not lie solely anymore on China’s fixed temperament on the matter of the arbitral award. The very issue would fall squarely on the Philippines’ passiveness over the subject matter. Mainly on the President’s deliberate refusal to properly deal with it. If this keeps on going, the International sphere might get the impression that the Philippines has waived its sovereign rights over the contested waters.
Tordesillas (2018) reiterated that Acting Chief Justice Antonio T. Carpio, lamenting the Duterte administration’s tolerance of China’s continued militarization of islands the Philippines also claim in the Spratlys, warned that “Under international law, acquiescence is the inaction of a state in the face of threat to its rights under circumstances calling for objection to the threat to its rights. Acquiescence means the Philippines will lose forever its EEZ [Exclusive Economic Zone] in the West Philippine Sea to China.”[28] If this keeps on going, these effects shall soon manifest. Would we still wait for that fearful moment when all our other islands can no longer be allowed to sail on or to fish on?
The question now raised, is the President faithfully complying the duties he is bound to execute? Are there any consequences to his passive attitude towards this issue? It could not have been difficult to assert one’s right over something that rightfully belongs to the country let alone he was vested with the power to do so. It is disappointing to see this happening to the Country as all the hard work had been sold away.
VI. Final Statement
The Philippine Constitution provides for the powers of the President and it includes the power to take-care. Under the take care clause, “He shall ensure that the laws be faithfully executed.”[29] Cruz and Cruz (2014) reiterated that the power to take care that the laws be faithfully executed makes the President a dominant figure in the administration of the Government. The energy or indifference with which he discharges this power will determine the measure of his success as Law Enforcer. The law he is supposed to enforce includes the Constitution itself, statutes, judicial decisions, administrative rules and regulations and municipal ordinances, as well as treaties entered into by our government. It has been suggested that the President is not under obligation to enforce a law which in his belief is unconstitutional because it would create no rights and confer no duties, being totally null and void.[30]
As early as 2016, a Pulse Asia survey indicated that more than 8 in 10 Filipinos took the position that we should assert our rights as awarded by the arbitral tribunal. Despite the domestic pressure raised, the stand of President Duterte remains. This is very upsetting and frustrating to many concerned parties since it has been taking too long for the people to freely exercise their sovereign rights over the disputed territory. It has always been difficult for smaller nations like the Philippines to obtain a feat and stand a chance against great nations like China. Despite the odds the country faced, it pushed through the attainment of the Arbitral Award so that the People can assert its sovereignty over the said territory. But all the hard work that was put cannot be considered as paid off and the fruits of its labor have certainly not been reaped.
In selling away the Philippines, not only did the President failed to do such duty and has done exactly the opposite of what he is supposed and how he is to act accordingly, here is a manifestation of his blatant disregard of the Supreme Law of the Land. He has the duty to remain faithful to his people and to uphold their rights and sentiments.
Madarang (2018) said that “in the third presidential debate of the 2016 elections, Rodrigo Duterte boldly promised that he will personally ride a jet ski and plant the Philippine flag in the Spratly Islands or Scarborough Shoal and assert the country’s sovereignty amid China’s encroachment.”[31] Suddenly, he changes his mind and then dismisses the whole jetski thing as a joke and laughed it off while asking the media how and why people actually believed that.
With all that has been said, I call into question, what are we supposed to do now? Who are we supposed to cling in to? What would happen to us if the person who everyone thought had the valour to fight for what is ours didn’t actually pay much attention at all? Was all that bravado just a mere act to win the sentiments of the masses for him to assure himself to Presidency? The hope for a better Philippines may have to wait for another span of years. We are being down played and much to our dismay, we cannot do anything about it. The situation did not improve at all. We cannot let past this behaviour anymore. It is with disdain for the masses to have chosen someone to fit those shoes which unfortunately, were too big to for him to fill in. Like every other promises he has made, all of which continue to be voided. Like footprints in the sand, washed by the waters that flow into the seas, they sink deeper into the void; our hopes, our aspirations, continue to move in like manner, just as our lives continue to be in a trance of how it could have been better.
___________
[1] Article 1 (1), Charter of the United Nations
[2] PCA Case No. 2013-19, IN THE MATTER OF THE SOUTH CHINA SEA ARBITRATION before AN ARBITRAL TRIBUNAL CONSTITUTED UNDER ANNEX VII TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA between THE REPUBLIC OF THE PHILIPPINES and THE PEOPLE’S REPUBLIC OF CHINA, The South China Sea Arbitration Award of 12 July 2016
[3] Ibid
[4] Article 94, Charter of the United Nations
[5] Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines. (2016, July 12), see https://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1379492.shtml
[6] Ibid
[7] Allison, Graham (2016, July 11) Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict. Retrieved from https://thediplomat.com/2016/07/of-course-china-like-all-great-powers-will-ignore-an-international-legal-verdict/
[8] Moslemi, Behrooz and Babaeimehr, Ali (2015 December) Principle of Sovereign Equality of States in the Light of the Doctrine of Responsibility to Protect. INTERNATIONAL JOURNAL OF HUMANITIES AND CULTURAL STUDIES ISSN 2356-5926. Retrieved from http://www.ijhcs.com/index.php/ijhcs/index
[9] Ibid
[10] Ansong, Alex, The Concept of Sovereign Equality of States in International Law (2016). GIMPA Law Review, 2(1), (2016), pp.14-34. Available at SSRN: https://ssrn.com/abstract=3171769
[11] Article 26, Vienna Convention on the Law of Treaties
[12] Article 3, Convention on Biological Diversity
[13] Page 476, PCA Case No. 2013-19, IN THE MATTER OF THE SOUTH CHINA SEA ARBITRATION before AN ARBITRAL TRIBUNAL CONSTITUTED UNDER ANNEX VII TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA between THE REPUBLIC OF THE PHILIPPINES and THE PEOPLE’S REPUBLIC OF CHINA, The South China Sea Arbitration Award of 12 July 2016
[14] Article 194, United Nations Convention on the Law of the Sea
[15] Ibid.
[16] Ibid.
[17] Article 2(4), Charter of the United Nations
[18] Section 1 (2), International Covenant on Economic, Social and Cultural Rights
[19]Section 7, Article XIII, Philippine Constitution (1987)
[20] Fonbuena, Carmela. (2018 June 08). Video captures China Coast Guard taking PH fishermen’s catch. Retrieved from https://www.rappler.com/nation/204383-china-coast-guard-taking-filipino-fishermen-catch-scarborough-shoal-video
[21] Viray, Patricia Lourdes. (2018 June 8). Chinese coast guard continue to harass Filipino fishermen in Scarborough. Retrieved from https://www.philstar.com/headlines/2018/06/08/1822747/chinese-coast-guard-continue-harass-filipino-fishermen-scarborough-report
[22] Pimentel vs. Executive Secretary, G.R. No. 158088, July 16, 2008, 462 SCRA 622
[23] GR 84642, September 13, 1988
[24] 14 F. Supp. 230, 299 U.S. 304 (1936)
[25] Viray, Patricia Lourdes. (2018 June 8). Chinese coast guard continue to harass Filipino fishermen in Scarborough. Retrieved from https://www.philstar.com/headlines/2018/06/08/1822747/chinese-coast-guard-continue-harass-filipino-fishermen-scarborough-report
[26] Ibid
[27] (2018, April 10). PH, China sign six bilateral agreements. Retrieved from https://pcoo.gov.ph/news_releases/ph-china-sign-six-bilateral-agreements/
[28] Tordesillas, Ellen T. (2018, May 29). OPINION: Lost not ‘a single island’ but the whole of Spratlys. Retrieved from https://news.abs-cbn.com/blogs/opinions/05/29/18/opinion-lost-not-a-single-island-but-the-whole-of-spratlys
[29] Article VII, Section 17, Philippine Constitution (1987)
[30] Cruz, Isagani and Cruz, Carlo (2014). Philippine Political Law, pg. 419
[31] Madarang, Catalina Ricci S. (2018, May 16) From bold promise to ‘publicity stunt’: The evolution of Duterte’s jet ski pledge. Retrieved from http://www.interaksyon.com/breaking-news/2018/05/16/126932/from-bold-promise-to-publicity-stunt-the-evolution-of-dutertes-jet-ski-pledge/