Of international law and experts

WE are in the midst of a circus of posturing by President Rodrigo Duterte on one side and lawyer Antonio Carpio on the other. Setting aside the spectacle of old men in their 70s taunting each other, there are important matters to be appreciated in this debate concerning our country, China and the West Philippine Sea (WPS).

Critics of the Duterte administration have always harped on the President’s soft stance toward China, particularly in the WPS row. Self-styled international law experts — people really enjoy undeserved titles these days — insist that the Philippines needs to assert more the 2016 Permanent Court of Arbitration (PCA) findings pertaining to the South China Sea arbitration (SCSA) between our country and China. Among these self-styled experts are businessman Albert del Rosario, a political appointee of President Gloria Macapagal Arroyo as ambassador to the US in 2001 and secretary of Foreign Affairs of President Benigno Aquino 3rd in 2010.

As a political appointee, del Rosario is just like the retired generals of the armed forces and police, as well as Aquino family friend (according to a news report from 2011) Domingo Lee, the man infamously skewered by then Sen. Sergio Osmena 3rd during the confirmation hearing with the Commission on Appointments in 2011 and 2012: they all have questionable international relations backgrounds.

Another overnight expert is Antonio Carpio, the retired Supreme Court justice. Carpio’s public biographical information lists his expertise before being appointed to the bench as tax law, corporate law and negotiable instruments law, all of which he taught at the University of the Philippines. None of his high-profile ponencias in the high court deal with international relations or international law.

From Carpio’s own words in his e-book, The South China Sea Dispute, it would seem that his knowledge of international law and international relations is a product of his involvement in the filing of the SCSA case before the PCA at The Hague during the Aquino 3rd administration. In the acknowledgments section of the e-book, Carpio rattled off a very long list of scholars and diplomats who helped him cram information on the SCS/ WPS dispute enough for him to become an overnight “authority” who would eventually deliver over 140 speeches and lectures all over the world. I attended one of Carpio’s earlier speaking engagements with UP international law professor Jay Batongbacal, the latter presumably present for timely assistance if needed. When Carpio the overnight expert later managed, he hit the lecturing circuit solo.

As a result of this whirlwind global lecture tour, UP declared Carpio an Outstanding

Alumnus for Public International Law in 2015. Cramming really works after all.

On the other hand, genuine international law scholars like Ambassador Rosario Manalo had to finish graduate school and accumulate decades of experience with the Department of Foreign Affairs before becoming a bona fide authority. In her discussion of the 2016 PCA findings, Manalo asserted that the SCSA proceedings were inconsistent with the United Nations charter. Manalo explained that a proper arbitration case involves the voluntary participation of the two conflicting parties plus the arbiter. Such was not the case in the SCSA because China did not participate. Thus, under the UN charter, such an arbitration was “not set up correctly,” according to Manalo.

If the PCA was not properly constituted to deliberate the SCSA in accordance with the UN charter, then the findings, says Manalo, “do not bind anybody.” It is that simple.

Overnight authorities like del Rosario and Carpio either do not properly appreciate that fact or are hiding it from us.

Another issue is the potency of international law in the dispute.

The root of everything from the Chinese side is the declaration of the egregious territorial demarcation line called the “nine-dash line.” The nine-dash line, very briefly, extends the Chinese territorial assertion by claiming disputed islands and features, such as the Spratlys, Panatag Shoal, etc., as the foundation of Beijing’s dominance over the WPS.

If the nine-dash line is upheld, then China has every right to dominate the WPS. Of course, the Philippines and many other countries have strenuously objected to the nine-dash line.

Can China unilaterally make (egregious) claims just like that? Unfortunately, yes. Nothing in international law prevents any number of states from making all the (overlapping) claims they want. These overlapping claims are the reason why disputes exist.

Is there a remedy for this under the UN charter? As mentioned, arbitration is the remedy, but the parties have to voluntarily participate in the proceedings. China did not participate in the SCSA and has stated that it would not agree to any future arbitration, and it cannot be compelled if it does not wish to do so.

International law is inutile in this situation. Just don’t expect del Rosario and Carpio to grasp that reality.