Scraps from the master’s table
AS EASY AS ABC - Atty. Alex B. Cabrera (The Philippine Star) - April 21, 2019 - 12:00am

Throw a seed into the soil and it yields a hundredfold. Thus our people didn’t need to work so much. When Rizal wrote this rationalization then on why we could afford to be lazy, he did not even reference the abundance of fish in the Philippine waters in the defense.

So long as there is sea, there will be an abundance of fish for anyone and any country with national waters – this was probably the school of thought during the early days. This partly explains the hundreds of reported Chinese fishing vessels that frequent the “South China” Sea, to the exclusion of small boats of Filipino fishermen who have been threatened and bullied for more than half a decade now, every time they try to fish in what used to be their fishing grounds of abundant catch.

Many of the stories in the different shoals are about the inhumane treatment our fisher folks get in our own waters. There’s also the damage to our corals and marine environment brought about by China’s dredging activities. All these are captured in the criminal case lodged against President Xi Jin Ping and Chinese officials in the International Criminal Court (ICC).

The charge is for the “massive, near permanent and devastating environmental damage across nations” along with the perpetration of crimes against humanity.

It was never exclusively a Philippine issue to begin with, but the almost passive acceptance of the rest of the territories made it look like so. To the rest, a united Southeast Asia talking to or standing up to China is deterred, for fear of losing economic benefits from having a relationship with China. So the rest of the countries will most likely choose to sit out on this one as they did when the Philippines filed the case for definition of rights over territory in the Hague.

This time, the criminal case filed is not even filed by, nor on behalf of, the Philippine government. It is simply by two brave, principled, country- and Filipino-loving individuals in the persons of former foreign affairs secretary Albert del Rosario and former Ombudsman Conchita Carpio Morales, assisted by a Filipino international law practitioner, Anne Marie Corominas, my classmate in Ateneo Law School.

It is not rocket science to appreciate that the evidence is strong, because of the permanent destruction of corals and underwater structures that have naturally taken, scientists say, millions of years to develop (so since the beginning of time). Those marine resources were dredged like debris to make way for the construction of Chinese artificial islands. On crimes against humanity, perhaps the most obvious one is the worst kind of racism – the enforcement of invalid exclusivity over fish and resources of the “South China” Sea against anyone who is non-Chinese.

I call it the worst kind of racism because if you compare the really vicious racism in many US states that prevailed in the past, black people couldn’t even get in restaurants owned by racist white people. No justification for that but factually, those racist restaurant owners at least own the place of their business. In the South China Sea, the Chinese don’t even own the waters, which are way outside their economic zones. Yet they sequester the whole area, including those owned by other coastal states, without paying compensation and simply exclude every person of a different nationality. So it’s not only racism, nor discrimination. It is deprivation through unlawful taking, threat, and intimidation. (The Hague decision says that the Philippines has the rights but that hard-fought ruling has been set aside by the incumbent Chinese and Philippine governments.)

Then there’s the nagging technical issue of: Can the Philippines or any of its citizens bring a case before the ICC when its president already withdrew the country from the Rome statute (as a reaction to a threatened criminal investigation by the ICC regarding the Philippine war on drugs)? Short answer, yes.

Firstly, the crimes alleged against the Chinese president and officials in the communication were committed between the years 2011 and 2017 when the Philippines was still state signatory to the Rome Statue prior to the communication of the Philippines’ withdrawal in March 2019. (Incidentally, this shows that it’s not a complaint against the President who was not even an incumbent prior to 2016.) If the Philippines wins the case, the Chinese President and officials can technically be apprehended in any territory or state signatory to the Rome statute, which reportedly has at least 155 signatories, and 122 ratified it.

Secondly, and probably the more politically controversial, is the issue of whether the President can unilaterally withdraw from the treaty. While there is no issue that the President can unilaterally enter into executive agreements with other countries, treaties of permanent nature require not only the approval of the President but the concurrence of the Senate. The signing of the Rome statute was concurred to by the Philippine Senate. Because of the legislative participation of the Senate, the treaty is elevated to the same level as a statute, following Philippine Supreme Court decisions. Thus the President cannot just withdraw from treaties lest he be allowed to cancel any law for that matter and have executive and legislative powers at the same time.

I would say that even the Resurrection started with humble promises, pestered with doubters but also supported by those with strong faith. Maybe the resurrection of our territorial rights in the South China Sea begins again with this ICC criminal case. But it will take more than the faith of the courageous three souls who have so far made the solitary journey to carry the flag for us. We need diplomacy with integrity, alliance and help of allies, hone a united Southeast Asia with tireless proposals and iterations. We need an open eye that looks to a viable long-term future and not the short-term, superficial benefits of dwindling low-hanging fruits.

We cannot teach future generations to be contented with scraps that fall off the “master’s” table. Not if we own the table. Not if they are not our masters to begin with.

*     *     *

Alexander B. Cabrera is the chairman of Integrity Initiative, Inc. (II Inc.), a non-profit organization that promotes common ethical and acceptable integrity standards. He is also the chairman and senior partner of Isla Lipana & Co./PwC Philippines. Email your comments and questions to aseasyasABC@ph.pwc.com. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.

DRUG WAR INTERNATIONAL CRIMINAL COURT WEST PHILIPPINE SEA
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