By NG Seruela
Amidst the controversial issue of the West Philippine Sea (WPS), a video of a seasoned diplomat explaining the arbitration ruling as “non-binding” resurfaces.
Career diplomat and Philippine Representative to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) Rosario Manalo said in a July 12, 2019 interview that the arbitration was “not set up correctly” when the Philippines claimed its right to the Kalayaan group of islands because the tribunal calls for three parties.
“An arbitration tribunal calls for three parties, two who are claiming whatever they’re claiming, and between the two, the selection of an umpire.”
In an episode of the Tapatan sa Aristocrat forum, Manalo, who served as ambassador to several European countries, explained that when an arbitration is carried out, “it is always voluntary under the United Nations (UN) Charter.”
She said arbitrations under the United Nations Convention on the Law of the Sea (UNCLOS) are “compulsory,” meaning that two parties must follow the process resulting in binding decisions. The two parties must respect the court’s decision.
But when UNCLOS was ratified, she said, the Philippines “opted out” of that provision. This means the country will not use the compulsory arbitration clause. China opted out as well.
“But in the Philippines, when we ratified the UNCLOS, we opted out of that provision, which means hindi natin gagamitin ang compulsory arbitration. Without even us talking to the Chinese or whatever, equally the same, the Chinese opted out of that provision. So both PH and China cannot invoke compulsory arbitration under the UNCLOS because we opted out,” Manalo explained.
She said one remedy to this was to bring the case to the UN Charter for a voluntary arbitration, but this did not work out.
“So what is the remedy? Dalhin natin sa UN under UN Charter which is voluntary arbitration. PH wanted it, ayaw ng China, but it’s voluntary. So what did we do? We went and proceeded to set up an arbitration panel.”
Manalo said the panel was not really an arbitration panel because it was composed of people who were compensated for their effort.
“That is not even an arbitration panel. That’s just a Philippine panel, handpicking the people who will [render] that very issue that we want at binabayaran ‘yun ng panahon nila,” she said.
“However, the very fact that the decision [arbitral award] is given, it was brought to the attention of the world that we have a basis to do some claiming on the South China Sea of the KGI [Kalayaan group of islands], but it does not bind anybody. It’s just a position taken by the Philippines and with the arguments we’re giving, ito importante, at bakit ito importante sa atin sa Pilipinas.
“But to me that’s an opinion, of a plus for us, but it does not bind China, nor anybody else in the world,” she added.
On July 12, 2016, the decision of the UNCLOS Arbitral Tribunal was issued favoring the Philippines. Comprising the tribunal were Judge Thomas A. Mensah of Ghana, chair, and members Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of Poland, Professor Alfred Soons of the Netherlands, and Judge Rüdiger Wolfrum of Germany.
Panganiban: Arbitral award only gives maritime rights
In an August 4, 2019 column, retired Supreme Court Chief Justice Artemio Panganiban explained the nature of the arbitral award further, saying it only covers maritime rights.
He wrote, “The Philippines did not ask for, and the tribunal did not award, any rights over the land areas, given that the arbitration was about maritime rights only, and did not include land occupations, reclamations and constructions…
“By itself, the award cannot be used by the Philippines to prevent (much less oust) China from occupying the rocks above water at high tide in the SCS and from reclaiming land, constructing airports, seaports and other installations thereon, because, as I said, it covered only rights over water, not over land.”
However, he wrote that the enforcement of the award’s provisions is another matter: “Unlike the great powers, the Philippines does not have the military capability to watch over and protect Filipinos who fish or exploit the natural resources in the WPS.” -jlo
