Posts Tagged ‘Philippines’

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.

 


PPPs and Risk, Part 1

Finally, opening the floodgates to indiscriminate government guarantees is short-sighted and counter-productive. At the end of the day, the increased cost of a government guaranty against regulatory risk will be borne by the tax payers. Since most PPP contracts will outlive President Aquino’s administration, he should be wary about putting his signature on a piece of paper which will doom his successor (and the one after that) to additional fiscal burdens, especially where the benefit is not clear or the need is not immediate.


Noynoy, Gibo, Villar and the new EDSA Revo-lections

Critics bemoan the fact that many Filipinos are reduced to electing the “least corrupt” rather than the “most competent” candidate for the highest post in the land. But that argument presupposes that the two concepts are mutually exclusive. On the contrary, we cannot deny that it is precisely the sad state of the country which calls for a comparison not of one’s track record of real and hyperbolic accomplishments but a demonstration of what one has NOT done despite being possessed of power. In this, Noynoy is head and shoulders above all. As it turns out, Noynoy has shown by his previous conduct that he is the most competent to wield the awful powers of the President by showing its grandest manifestation — that of RESTRAINT.


Who’s Holding the Purse? The Line Item Veto and other Fun Facts Part I

The true “power of the purse” does not arise from the requirement that all revenue bills must originate from Congress as stated in Article VI, Section 24 of the Constitution. Rather, it lies in the dynamic created by the concept that the President must ask Congress for money. Thus, more than the authority of Congress to institute revenue measures, the true nature of the power shows itself in the authority of Congress to WITHHOLD money from the President.


What It Will Probably Take Part II: More on Including the Poor in the Equation

Theoretically, higher income per capita should offset the effects of either a lower minimum wage or a moratorium on wage increases. Stated otherwise, a lower legislated minimum wage would cease to be relevant when a larger part of the workforce is doing higher level jobs and are therefore earning way beyond any floor set by government.


What It Will Probably Take Part 1: Inclusion

At the end of the day, people will not sign on to any plan to overhaul the economy if they don’t see more food coming to their table or if the food is not coming soon enough. This is significant because that plan may ultimately involve reforms that are designed to increase country competitiveness by liberalizing trade laws or lowering the cost of Filipino labor.


The Bastard and the Messiah: Problems With the Philippine Presidential System

Rightfully or wrongly, the 1987 Constitution adopts such a pessimistic attitude towards the President that it almost seems to be betting that more often than not, Filipinos will elect the bastard. In the process, it also hampers a “good” President with restrictions that make it extremely difficult for him to deliver the monumental course changing performance that the collective dreams about.


Martial Law

While the murder of women and children is certainly reprehensible business and must be dealt with not only with decisiveness but even with some measure of violence, it hardly seems that martial law is necessary or even germane to the current situation. At least from a legal perspective, it’s like removing a particularly troublesome hangnail with an exceptionally large battle-axe.