Being Right

Vividly and fondly remembered is former Supreme Court Justice Florentino Feliciano who, years ago, long after he stepped down from the World Trade Organization’s Appellate Body, met with some government trade officials regarding alleged Philippine discriminatory treatment of some imported goods. A lady official pontificated about the “unfortunate” Philippine “discrimination.”

“Madam,” Justice Feliciano softly asked, “are you an international trade law judge?” No, came the reply. Then why, politely asked the man who practically organized the WTO’s highest tribunal, are you so quick to conclude that the Philippines committed a wrong?

Indeed. And Filipino lawyers (and definitely law students) would do well to remember this: if you’re going to interpret a treaty or international law, then do so in accordance with Philippine interests and values.

Lawyers instinctively (even aggressively) interpret contracts or laws to support their client’s mere personal interests. Treaties are nothing but that: legal documents. Documents of national interests. Our reading thereof should be to benefit the Philippines.

No Filipino should “lawyer” for other countries, they have their own.

Consequently, in relation to the ongoing dispute over the West Philippine Sea (and, yes, we will insist in using that term): the areas we claim in Scarborough Shoal and the Kalayaan Islands are ours, as we declared through our Constitution and supporting legislation.

It is incorrect to say that international law grants us our rights or territory. International law merely recognizes them. With or without international law, our rights and territory are ours, and what matters is our willingness to assert it.

Benham Rise, for example, was not given to us by the United Nations. The UN Commission on the Limits of the Continental Shelf merely recognized our claim. That continental shelf has always been ours because we say so.

As far as the 2016 arbitral ruling on Philippines v. China is concerned, such did not identify ownership of or sovereignty over the subject maritime features. That would be for the International Court of Justice to decide if China would be willing (and it clearly isn’t).

The arbitral ruling merely makes the following pronouncements: Scarborough Shoal is a rock entitled to territorial waters but without EEZ or continental shelf entitlements; Mischief Reef and Second Thomas Shoal are low-tide elevations without territorial sea, EEZ, or continental shelf; Subi Reef is a low-tide elevation without territorial sea, EEZ, or continental shelf; Mischief Reef and Second Thomas Shoal are low-tide elevations without territorial sea, EEZ, or continental shelf; Gaven Reef (South) and Hughes Reef are low-tide elevations without territorial sea, EEZ, or continental shelf; Gaven Reef (North), Namyit Island, McKennan Reef and Sin Cowe Island are high-tide features; and Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are rocks without EEZ or continental shelf but are entitled to territorial waters.

The concluding relevant portions are as follows:

“The Tribunal concludes 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. The Tribunal concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.”

“Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities and DECLARES that China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal”

Proceeding from the foregoing, as Scarborough Shoal is indeed owned by the Philippines, then Chinese traditional (not commercial) fishermen’s rights are only those as “vested” within the 12 nautical miles territorial sea of the Shoal. Scarborough being also within the EEZ of the Philippines, the general rule is that “traditional fishing rights are extinguished” at least as far as that within the zone is concerned, although Chinese traditional fishermen may have limited rights but only to those of “artisanal” nature and not commercial, and may be subject to regulation by the Philippines (as the coastal state). Finally, the Philippines may come to an agreement with China over said traditional fishing rights over the EEZ but such is not required by UNCLOS. And any such agreement definitely must consider the dictates of the Constitution.

Incidentally, would a verbal agreement between heads of States be valid? Customary international law says yes. That is, assuming constitutional requirements are complied with.

As far as the Philippines is concerned, if the nature of the verbal agreement categorizes it as a treaty, then Senate concurrence is needed. Consequently, the Executive branch may likely need to endorse a written document embodying the verbal agreement to the Senate for the latter’s deliberation. Of course, verbal agreements come with certain disadvantages, particularly in relation to dispute settlement mechanisms.

But that’s another discussion.


Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula