Archive for the ‘International Law’ Category

The Bangsamoro Pact

To the degree that our Constitution allows “autonomous regions” in Mindanao within areas “sharing common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics”(Article X, Section 15),  there is little argument on the recognition of a form of regional diversity which gives rise to a political right to a more or less separate government.

The problem is not in the recognition of the right.  There is already an Autonomous Region of Muslim Mindanao (ARMM). The key is figuring out why it did not put an end to hostilities. It can be argued that this is due to the inadequacy of a structure which is attributable to faulty craftsmanship. Beyond that, it also lacked credibility amongst the various muslim factions themselves and the leadership administering the region was challenged from within. The previous exercise was a rush job that failed to account for the sectarian differences and validate the bona fides of the group seeking to represent them.

Yet, for the second time around, the Government of the Republic of the Philippines is on the cusp of realizing another peace accord (a copy of the Framework Agreement on the Bangsamoro can be found here) with the same leadership — a splinter faction of the old and largely discredited face of the muslim resistance.  With due respect, are we sure we want to hand over the reins of government to a group of disgruntled ex-MNLF fighters without proof of their ability to lead the people they purport to represent?  To be more direct, can they control the numerous armed factions within the area and compel them to submit to their authority? As if to demonstrate the infighting (or to use a euphemism: “complex political dynamics”) among them, the Sultanate of Sulu has waged his own little war against Malaysia at the same time that the parties are seeking the kingdom’s intercession in the bargaining process. That the Moro Islamic Liberation Front has no control over the actions of the Sultanate hardly inspires confidence in their ability to police their own backyard.

Of course, peace is an overwhelming ideal. But why not a phased pullout of national government from the region? If its people seek autonomy, it is imperative to require  evidence of the ability to govern and consent of the governed — and these can only be demonstrated over time. By contrast, all the Framework Agreement seems to require is a plebiscite.

Lastly, the Constitution requires that the autonomous region exist within its own parameters. In “Province of North Cotabato vs. Government of the Republic of the Philippines” [GR No. 183591] the Supreme Court refused to give its imprimatur to a like minded document (the Memorandum of Agreement on Ancestral Domain or MOA-AD)  for the reason that it could not exist within the same legal plane as the Constitution. First, the Court noted that the Constitution cannot accomodate an “associative” relationship with the  Bangsamoro Juridical Entity (BJE) because it does not contemplate any other state existing within its sphere other than the Philippine state, to wit —

“No province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.

xxx

“It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.”

Although the Framework Agreement uses the word “asymmetric” (or unequal) to describe its relationship with national government, any further reading of the text will not conclusively remove the notion that the relationship between the Bangsamoro Government  and the National Government is also one of association. Judged by the standards of the Montevideo Convention, it seems that the Bangsamoro entity also seems to have the same characteristics of a “state in all but name.” The Framework Agreement makes sure that it has a permanent population, a defined territory and a government. It may be true that the Framework Agreement provides that the Central Government shall have powers on “foreign policy,” neither does it clearly define the power as exclusive.

 

 

 

 

 


The Tiger in the Room: The Philippines Calls Out China

Reacting to an increasingly aggressive Chinese stance over the Scarborough Shoal, the Government of the Republic of the Philippines finally calls out the tiger in the room and filed an arbitral claim under the United Nations Convention on the Law of the Seas (UNCLOS). The reactions from other quarters are those that you would expect when confronted with the presence of a large and dangerous animal – silence.

The solution seems simple enough at first blush: contending parties bring their dispute before an impartial third party to decide and the resolution is binding on the parties.

In reality, it is anything but.

Legally, the Philippines has a good case to question the validity of the Chinese “nine dashed line.” However, there is a proverbial ocean between filing a claim and forcing China to leave the Scarborough Shoal. In international relations, might is often right and China is not called a “superpower” for nothing.

Some experts suggest that China can simply ignore the proceedings and refuse to appoint an arbitrator. In that case, Annex VII, Article 3, subparagraph (e) provides that the President of the International Tribunal on the Law of the Sea (ITLOS) can complete the composition of the panel:

(e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments. If the President is unable to act under this subparagraph or is a national of one of the parties to the dispute, the appointment shall be made by the next senior member of the International Tribunal for the Law of the Sea who is available and is not a national of one of the parties. The appointments referred to in this subparagraph shall be made from the list referred to in article 2 of this Annex within a period of 30 days of the receipt of the request and in consultation with the parties. The members so appointed shall be of different nationalities and may not be in the service of, ordinarily resident in the territory of, or nationals of, any of the parties to the dispute.

And who, it may be asked, is the President of the ITLOS? Let’s just say that he happens to be Japanese, which may be good or bad for the Philippines. We know that Japan is involved in its own territorial dispute with China over the Senkaku Islands but the Japanese has also made peaceful overtures to Beijing (see Washington Post article here). Will the Chinese not take advantage of the Japanese overture in its row with the Philippines?

China also has an objection to the jurisdiction of the arbitral tribunal. In 2006, it opted out of the Compulsory Procedures under Section 2, Part XV. The Chinese Declaration reads:

Declaration under article 298:

The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.

I have read somewhere that the statement of the Philippine claim is crafted to skirt China’s reservation. Nonetheless, there is a possibility that the tribunal will either decide the case and include its ruling on the jurisdictional objection in the award (as in the case of Nicaragua vs. Colombia before the ICJ) but there is nothing to prevent it from ruling on the objection preliminarily. The question of whether or not the tribunal has jurisdiction is one which the tribunal can itself resolve, under Article 288:

Article 288

Jurisdiction

1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.

2. A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.

3. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea established in accordance with Annex VI, and any other chamber or arbitral tribunal referred to in Part XI, section 5, shall have jurisdiction in any matter which is submitted to it in accordance therewith.

4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

So even at the early stages of the proceedings, there are many venues for China to flex its muscle. Indeed, even if the Philippines wins this case, it does not seem likely that China has any compelling motivation to accede to the award as it would be contrary to its Sino-centric position and its diplomatic stance that disputes should be resolved bilaterally. Granted that China’s behavior is not  becoming of a new global power. But if its past behavior is indeed any indication of what it intends to do in the future, it does not bode well for the smaller animals in the room.