PHL claims on South China Sea should be raised in SONA, ex-SC justice says

By Joseph Bernard A. Marzan

A former Supreme Court justice called on President Ferdinand Marcos Jr. to include discussions on the South China and West Philippine seas and the enforcement of the 2016 Permanent Court of Arbitration (PCA) ruling in his second State of the Nation Address (SONA) today, July 24, 2023.

Retired Associate Justice Francis Jardeleza shared to Daily Guardian on Air on Friday that he recently met with Rep. Rufus Rodriguez (Cagayan de Oro City-2nd) who authored several bills on the West Philippine Sea at the House of Representatives (HOR).

The HOR website indicated that Rodriguez authored several bills about the South China and West Philippine seas and the island groups which have been the subject of international disputes:

–          House Bill (HB) No. 7824, creating the Center for West Philippine Sea Studies attached to the Department of Foreign Affairs (pending with the Committee on the West Philippine Sea since May 8, 2023);

–          HB No. 7833, allocating ₱1 billion for the improvement, fortification, and building of structures in the Kalayaan Group of Islands (KIG) (pending with the Committee on Appropriations since May 8, 2023);

–          HB No. 7858, creating the Spratly Island Task Force and allocating ₱1 billion for this purpose (pending with the Committee on National Defense and Security since May 8, 2023); and

–          HB No. 8371 or the ‘KIG and Scarborough Shoal Marine Protected Area Act’ (pending with the Committee on Natural Resources since May 30, 2023).

These legislation pieces are based on the PCA ruling that rejected China’s nine-dash line concept which overlaps with the Philippines’ 200-nautical mile exclusive economic zone (EEZ) mandated by the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

In 2016, an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention firmly rejecting the PRC’s expansive South China Sea maritime claims, including any PRC claim to the area determined by the Arbitral Tribunal to be part of the Philippines’ exclusive economic zone and continental shelf, as well as any resources therein.

Under the terms of the Convention, this ruling is final and legally binding on the Philippines and the PRC.

The PCA ruling that PRC’s claim had no basis in international law and that it had violated the Philippines’ sovereign right to fish and explore resources in the West Philippine Sea, the waters within the country’s 370-kilometer EEZ in the South China Sea.

Then solicitor general Francis Jardeleza headed the Philippine legal team that presented the country’s case before the PCA at The Hague, Netherlands.

Apart from legislations, Jardeleza said one suggestion being floated for the enforcement of the PCA ruling was to assert the matter via a resolution at the United Nations General Assembly in New York City, something that would not be easy to do.

But the General Assembly option is better than going to the United Nations Security Council, where China and Russia, which opposed the PCA ruling, have permanent veto powers.

“If this [move] would be brought before the Security Council, China and Russia would have veto [powers] there. It has been suggested to bring instead before the General Assembly, where only majority vote is needed,” Jardeleza said.

“But I consulted international lawyers, and we were advised to be careful about this, because what would be our assurance that we would get majority votes? For example, in February, Ukraine went to the General Assembly, and they got 141 votes for, 7 against, and 21 abstentions which includes China. The question is that, if we go to the General Assembly, how sure are we [the Philippines], that we would get support? I’ve been told to watch out for the African bloc with 53 states. China has been aggressive with their ‘Silk Road’ infrastructure. When we filed the case [with the PCA], we were told of support, but on the way, we were standing alone,” he added.

Another suggestion was filing another case with the International Tribunal for the Law of the Sea (ITLOS) headquartered in Hamburg, Germany, which he said would be advantageous, but there is no indication from the Marcos government that it would make such a move.

“If we file another case [with the ITLOS], we wouldn’t need permission from another country. Second is that we already won jurisdiction [with the PCA]. The illegalities of sending provisions to the Ayungin Shoal and China crisscrossing [our waters] have been declared. [The PCA] case was over our rights [in the seas],” he said.

Jardeleza emphasized that the problem with the PCA ruling was how it was going to be enforced, given that it was an international law ruling and not a domestic one.

“The ruling is in our favor, but our problem is that it is an international law ruling. The problem with international law is that we do not have an international sheriff or police, or an enforcer [to enforce the ruling],” he explained.

He also suggested that the United States of America could help the Philippines by outright providing assets, rather than inking joint patrol deals over disputed waters, acknowledging that our country might not be fiscally ready in enforcing the ruling.

“If the [United States] wants, they can be the enforcer [of the ruling]. They said that they would help us [over our territorial rights] but it seems shallow. For me, if they are serious, we don’t need joint patrolling. They should give us vessels. We have a lot of Ilonggos in the [Philippine] Navy, we can do it,” he stated.

“If we were a country that is as [militarily] strong as the United States, we wouldn’t be interfered with. We wouldn’t need to file any case if we were that strong. [But] we know that we are a poor country, we have to give allocation to health, education, food security, and all [other] things. We cannot say that we have to throw all of our budget to buy destroyers and submariners,” he added.

The July 12, 2016 decision by the PCA invalidated the People’s Republic of China’s claims over several areas of the South China Sea, including the controversial ‘nine-dash line’ which it has placed in maps produced by their local mapmakers and printers.

This ruling referred to the United Nations Convention on the Law of the Sea, to which both the Philippines and China have been original signatories when it was signed in 1982.

Jardeleza led the charge to file the case against the Chinese during his tenure as Solicitor-General and was succeeded in the case by his successor, Florin Hilbay, in 2015 when he became a Supreme Court justice.

During the campaign season for the 2022 national and local elections, Jardeleza publicly stated that the next president should see to it that the ruling must be legislated to ensure its domestic enforcement.

Territorial issues over the South China Sea have been ongoing since the early 1900s, with not only the Philippines and China making claims over several areas, but also Brunei Darussalam, Cambodia, the Republic of China (Taiwan), Indonesia, Laos, Malaysia, Singapore, Thailand, and Vietnam.