Now the country needs quiet negotiations in invoking rule of law
THE Philippines won in almost all its submissions against China in the South China Sea award by the UN Convention on the Law of the Sea (UNLOS) Arbitration Tribunal, including the main issues that compelled the Philippines to urgently file the arbitration complaint, namely: that China had prohibited Philippine fishermen from exercising their historic rights to fish in Scarborough Shoal, and that China had unlawfully interfered with Philippine petroleum exploration in the Reed Bank which is within the exclusive economic zone (EEZ) of the Philippines. The Tribunal ruled that the decision is final and binding.
The ruling, however, declined the Philippines’ submission that, following the decision, the Tribunal should issue a Declaration that China shall respect the rights and freedoms of the Philippines and comply with its duties under the Convention. The Tribunal “noted that both the Philippines and China have repeatedly accepted that the Convention and general obligations of good faith define and regulate their conduct.”
The Tribunal considered that “the root of the disputes at issue in this arbitration lies in fundamentally different understandings of their respective rights under the Convention in the waters of the South China Sea.” The Tribunal recalled that it is a fundamental principle of international law that bad faith is not presumed, noting that Article 11 of Annex VII provides that the “award … shall be complied with by the parties to the dispute.”
Even inside the Philippines, there was difference of opinion on the issue of historic rights and the effect of the UNCLOS provision on these rights. A group of Philippine lawyers opposed the enactment of Republic Act 9522 defining the archipelagic baselines of the Philippines. This law was passed, on the recommendation of the Department of Foreign Affairs, to ensure that Philippine law conforms with UNCLOS, which the Philippines is bound to observe under the principle of pacta sunt servanda as a party to this Convention. This was necessary to enable the Philippines to come to the UNCLOS tribunals with clean hands in case of need to protect its rights under the Convention.
The petition before the Philippine Supreme Court to declare RA 9522 unconstitutional was based on the Philippines’ historic rights over waters passed by Spain to the United States. The petition alleged that the archipelagic baselines defined in the law reduced Philippine maritime territory in violation of Article 1 of the 1987 Philippine Constitution. The petition argued that RA 9522 “dismembers a large portion of the Philippine territory because it discards pre-UNCLOS definition of national territory under the Treaty of Paris and related treaties, successively encoded under the 1935, 1973 and 1987 Constitutions.