Phl, China can find mutual gain in talks

CHINA and the Philippines can still forge a mutually beneficial relationship by exploring doable options outside the recent ruling of the Permanent Court of Arbitration in the Hague that resolved in favor of Manila most of the issues submitted to it.

Former President Fidel V. Ramos seeks to unlock this area in his exploratory talks in Beijing as special envoy. From tourism and fishing in common traditional grounds, which he has mentioned, follow-up talks can move to other mutually profitable enterprises. (This column was written last Thursday, Aug. 11)

Mr. Ramos has indicated that the issue of sovereign rights, which could crop up as a deal-breaker, will not be the basis or the focus of his conversations with the authorities in Beijing as emissary of President Rodrigo Duterte.

Anyway, the arbitral tribunal did not rule on any sovereignty question. In the first place, it is not empowered to do so. Besides, the Philippines did not include that issue among its 15 submissions to the court established under the United Nations Convention on the Law of the Sea.

If ever, the sensitive subject of sovereignty can be taken up later under more propitious circumstances. Meantime, the mission of Mr. Ramos is merely to reopen lines disturbed by unfortunate past miscalculations of either side.

The Duterte administration, vowing to follow an independent foreign policy as mandated by the Constitution (Article II, Section 7), may have to add to its calculations the moves of other parties wary of the warming up of relations between Manila and Beijing.

It is interesting that the official Xinhua News Agency said last Tuesday that Mr. Ramos’ journeying to Beijing “brings a whiff of hope that the two countries will return to bilateral negotiations… it represents the first concrete step on the Philippine side to engage in bilateral talks with China on the South China Sea, could open a new chapter in settling disputes.”

• Notes on UNCLOS award on sea row

MENTION of possible exploration or exploitation of mineral resources jointly with foreigners (such as Chinese) is discomfiting competitors eyeing a similar business opportunity, as well us geopolitical players bent on isolating China.

Some legal quarters opposed to such big-ticket joint ventures cite Article XII of the Constitution. In a general sense, that article reserves mineral riches for Filipinos and firms 60-percent owned by them.

Lawyer Mario E. Valderrama, founder and first president of the Philippine Institute of Arbitrators (PIArb) where he is now president emeritus, says there is a way out of this constitutional restriction. We may take this up in the next issue.

Today, we share these random excerpts from Valderrama’s email over many weeks where he engaged us on the ramifications of the UNCLOS award:

• You may want to stop saying “PCA award.” The Permanent Court of Arbitration is only the registrar, by appointment of the arbitral tribunal. The tribunal is an ad hoc tribunal constituted under UNCLOS Annex VII. This was just clarified by the present Solicitor General.

• The tribunal practically declared Taiwan as a province of China and (included) Itu Aba Island in the award notwithstanding the fact that they were not mentioned in the Philippine submissions. And the declaration that China is not an archipelagic state even if it is not in issue is a pre-emptive attack by the tribunal, because China is using archipelagic principles in explaining its nine-dash line to its citizens and school children.

• As for the Aquino government, I don’t think that it knew what it was doing. It initiated an arbitration in the International Tribunal for the Law of the Sea. That is just like filing a case in the Metropolitan Trial Court when the proper venue is the Regional Trial Court. It took a Reichler to “correct” the Philippine approach.

• Re the Deng Xiaoping formula, an example of an agreement embodying it says: “x x x remain in dispute and that the two sides are continuing to work for a peaceful and cordial resolution of the dispute. In keeping with the abiding ties of close friendship and cooperation between x x x.” That formula had always been there from the start. But it is no longer on the table after the award. So, the parties should find ways to bring that formula back on the table again.

• Maybe the Philippines would have thought twice had it considered that (a) it would spend a lot of money; (b) it would end up with an award from a tribunal whose jurisdiction was placed in a cloud, with issues of partiality involving three of the arbitrators, issues of partiality and lack of independence with respect to the appointing authority, and issues of prejudgment; (c) an award that cannot be enforced; (d) an award that effectively placed China firmly in the saddle, so to speak, with respect to the Scarborough component of the dispute; (e) be portrayed as a pivot to advance the US policy of “rebalancing” against resurgent China and (f) possibly lose a neighbor who happened to be the strongest militarily and economically in the region and who is known to have helped other states.

• The Philippines is supposed to have exclusive rights to maritime resources in its Exclusive Economic Zone, i.e. the West Philippine Sea. But it is not really exclusive, because it has to respect traditional fishing rights. Several countries have traditional fishing rights over the entire South China Sea, which includes the West Philippine Sea. Per UNCLOS provisions the “owner” can set quotas.

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