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Being careful with words that could bind PH

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By Atty. Joey D. Lina
Former Senator

It is reassuring to learn that our country—because of a differing view on the wording proposed for a written accord—did not agree to a formal declaration that China was “allowing” Filipino fishermen to regain access to Scarborough Shoal.

Using the word “allow” would run counter to the arbitral decision of the UN Permanent Court of Arbitration in The Hague which ruled that Scarborough Shoal, also called Panatag Shoal, is a common fishing ground open to Filipino and Chinese fishermen. As such,it does not specifically belong to anyone, as far as fishing rights are concerned.

Therefore,it would not be correct, strictly speaking, for China to “allow” access to an area which it has no exclusive rights to. And the Philippines has every right to Scarborough Shoal because it is well within our country’s 370-kilometer exclusive economic zone, being just 230 km off the coast of Zambales province.

Published reports said that in the proposed written agreement that was to be announced during the China state visit of President Rodrigo Duterte, “China wanted to use ‘allow’ or ‘permit’ to strengthen its own position but this was unacceptable as far as Philippines is concerned.”

It is indeed reassuring to know that our diplomatic officials are fully aware of the repercussions that faulty language might have on our national interests. It is really prudent of them to be cautious and extremely careful in the choice of words that could have a binding effect on our country’s foreign policy and national interests. With their timely action, a faux pas was probably averted.

But I would like to call for their timely action also to rectify alleged statements purportedly made by President Duterte that gave the impression China “has not invaded” any part of the Philippines, contrary to the fact—as pointed out by Supreme Court Senior Justice Antonio Carpio—that Scarborough Shoal is Philippine territory and was seized by China in 2012.

Duterte’s alleged statements that came out in a recent article of Channel News Asia were reportedly uttered during the question and answer forum with the foreign press at Grand Hyatt Hotel in Beijing.

To a question on how China-Philippines relationship would be enhanced, Duterte was quoted as having said: “Why should I not veer to China? China is good. It has not invaded a piece of my country all these generations. All they went there is to do business, barter trade even before the arrival of the Spaniards.”

To the question on how he will raise in his meeting with President Xi Jinping the South China Sea issue amid the tribunal’s ruling, Duterte was quoted: “Let us be clear on this, the arbitral awards give us the right. Okay? China has the historical right and they are insisting and you are insisting and the Chinese government is insisting that it is right. So in this… Do we argue or we just talk? Then, if… I would say let us just put it to some other day.”

Justice Carpio has called on government to correct the quotes attributed to the President. Following is Carpio’s statement published in the Philippine Star column of Jarius Bondoc:

“President Duterte is quoted in the Channel News Asia’s article, “Philippines’ Duterte Praises China on Beijing Visit,” posted in its website on 19 October 2016. The statements of President Duterte as quoted in the article must be corrected to avoid serious damage to the Philippines.

“In referring to China’s relation with the Philippines, President Duterte is quoted in the article as saying: ‘It (China) has never invaded a piece of my country all these generations.’ This is incorrect. In 2012 China physically seized and in effect invaded Scarborough Shoal, which is defined as Philippine Territory under Republic Act No. 9522 (Amended Definitions of the Archipelagic Baseline of the Philippines). RA 9522 states that the Philippines has ‘sovereignty and jurisdiction’ over Scarborough Shoal. In 1995 China seized from the Philippines Mischief Reef, which is part of the submerged continental shelf of the Philippines as affirmed by the Tribunal’s Final Award of July 12, 2016.

“All ancient maps of the Chinese dynasties show Hainan Island as the southernmost territory of China. There is no ancient Chinese map showing Scarborough Shoal or the Spratlys as part of Chinese territory. Ancient maps of the Philippines show that Scarborough Shoal has been Philippine territory since 1636, and the Spratlys were part of the Philippines since at least 1690. On 29 September 1932, China officially declared to the world, in a Note Verbale to France, that China’s southernmost territory were the Paracels, moving a little further south its southernmost border. Even then, it meant that Chinese territory never included Scarborough Shoal or the Spratlys.

“Regarding the Tribunal’s Final Award, President Duterte is quoted in the article as saying: ‘The arbitral award gives us the right; China has the historical right.’ That is incorrect. The UNCLOS Tribunal at The Hague concluded: ‘The Tribunal sees no evidence that, prior to the Convention, China ever established a historic right to the exclusive use of the living and nonliving resources of the waters of the South China Sea, whatever use it may historically have made of the Spratlys Islands themselves.’ The Tribunal explained that China’s uses in the past of the South China Sea beyond its territorial seas, through fishing by Chinese fishermen and sailing by its merchant ships and navy, were uses of high seas freedom, just like the uses of the South China Sea by other states. The South China Sea was never exclusively used by China, in the past or now.

“These statements by President Duterte must be corrected lest China claim, quoting him, that Scarborough Shoal is not Philippine territory and that the Philippines recognizes China’s historic rights to the South China Sea, a claim the Philippine government already successfully refuted as false before the Hague Tribunal. Under international law, unilateral statements of a head of state can bind the state and can be taken against such state in an arbitration between such state and another disputant state; thus the need for the government to issue immediately a correction, lest these statements of President Duterte bind the Philippines.”

As a lawyer, I see the merit and wisdom in what Justice Carpio said. I fully support his call for swift action by our government to rectify whatever misimpressions that may arise from the alleged statements of President Duterte in China.

E-mail: finding.lina@yahoo.com

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