OF LAW AND POLITICS

TOWARDS A SEA OF PEACE, STABILITY AND PROSPERITY

Jaime S. Bautista

Round Table Discussions

I discuss the status of our bilateral relations with China from the point of view of people to people relations.

The Duterte Administration has adopted a two-track policy of separating the discussion of sensitive issues from economic and other issues.

With this policy, the Philippines’ official relations with China have improved.

President Rodrigo Duterte has received high approval ratings from every polling survey but his China policy has not received the support of the Filipino people.

Filipinos still recall that China occupied Mischief Reef after the Philippine Senate had expelled the US bases from Clark and Subic.

Many other recent actions of China have cast doubts about its intentions.

The ASEAN Summits have expressed concern about China’s land reclamations and have stressed the importance of non-militarization.

Before leaving for China on his fifth visit, President Duterte announced it was time for him to raise the issue of the Arbitral Award.  He did so in a face to face meeting with President Xi Jinping, saying that the Arbitral Award was “binding, final and not subject to appeal.” 

Arbitral Award

I will now dwell on the Arbitral  Award, given its importance to present and future generations of Filipinos.

It may be recalled that the Philippines filed the case against China to assert sovereign equality and to resolve the issue of whether the Philippines has sovereign rights to a 200-mile EEZ/Continental Self in the South China Sea.

The Philippines was careful to exclude any issue of territorial sovereignty.

The Tribunal ruled that China has no EEZ/Continental Shelf overlapping with the Philippines, either on the basis of the nine-dash line or the Spratly Islands.

Nine-Dash-Line

The Tribunal ruled that China’s claim to historic rights to living and non-living resources within the nine-dash-line are contrary to the Convention.

According to the Tribunal, the text of the Convention is clear in according sovereign rights to the living and non-living resources of the exclusive economic zone to the coastal State alone. The provisions of the Convention concerning the continental shelf are even more explicit that rights to the living and non-living resources pertain to the coastal State exclusively.

The Tribunal stated that the Convention does not preserve or protect any historic rights in the EEZ/Continental Shelf that exceed the limits provided by the Convention, i.e., 200 miles from the baseline.

The context of the Convention is that, upon China’s accession, any historic rights were superseded by the limits of the maritime zones as stated above. 

In any event, China did not have any historic rights to speak of because, before the Convention entered into force, all of the South China Sea formed part of the High Seas.

Finally, the Tribunal held that China could not have acquired any rights after the adoption of the Convention because the extent of the rights asserted within the ‘nine-dash line’ only became clear with China’s Notes Verbales of May 2009.  Since that date, China’s claims have been clearly objected to by other States.

Spratly (Nansha) Islands

Neither can China claim an EEZ/Continental Shelf on the basis of the Spratly Islands.

All of the high tide features there are legally rocks, by virtue of Article 121 (3) of the Convention, and have no EEZ/Continental Shelf since they cannot sustain human habitation or economic life of their own.

Article 121 (3) supports the concept of the EEZ to extend the jurisdiction of States over the waters adjacent to their coasts and to preserve the resources of those waters for the benefit of the population of the Coastal State.  The EEZ is not meant to award a windfall to a potentially distant state.

Thus, a delegate to the UNCLOS negotiations pointed out:

Tiny and barren islands, looked upon in the past as mere obstacles to navigation should not miraculously become the golden keys to vast maritime zones.

The Tribunal further held that China cannot enclose the Spratly Islands as a single unit within a system of archipelagic baselines.

The use of archipelagic baselines is limited to archipelagic states and China cannot meet the definition of an Archipelagic State. 

The Tribunal noted that even the Philippines cannot declare archipelagic baselines in the Kalayaan Island Group (KIG) because the archipelagic baselines should include the main islands and meet the requirements of ratio of water to land of 9:1.

Neither can China draw straight baselines because the Spratly Islands are not within the vicinity of China’s mainland.

Conclusion

The Tribunal noted that accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions.

The Philippines aligned its laws by passing Republic Act 9522, which abandoned the claim to historic rights to waters within the Treaty of Paris.

Compliance is both necessary and desirable because the United Nations Convention on the Law of the Sea was negotiated to serve as a Constitution establishing a legal order for the sea.

It is to be noted that the UNCLOS created a system of maritime zones, which covers every area of sea or sea-bed in the globe.

The UNCLOS, therefore, provides limits to the entitlement that states may have to the different maritime zones.

Any claim which exceeds the limits permitted by UNCLOS would impact on the high seas or the Common Heritage of Mankind, or encroach on the EEZ of another State.

Every Party to the UNCLOS Convention has a substantial interest in the harmonization of national laws with the Convention.

The compliance with the limits to maritime zones agreed upon in UNCLOS would remove a source of tension and instability in the South China Sea.

Filipinos want to be good maritime neighbors, especially because the South China Sea is a semi-enclosed sea demanding cooperation in the preservation of the marine environment to assure food security for the region.

Filipinos were concerned particularly about the plight of our fishermen. They worry about the destruction of the coral reefs, the dwindling fish stocks and the loss of biodiversity, and they demand that our sovereign rights to our sources of food and energy be protected.

The Duterte Administration is now seeking to enforce the Arbitral Award through cooperative efforts, such as discussing joint exploration and exploitation of gas and oil, but on the basis of sovereign rights under UNCLOS.

A Sea of Peace, Stability and Prosperity is our work in progress, with ASEAN and its Dialogue Partners.  

_{8 June 2019}

_{OF LAW AND POLITICS}

PHILIPPINES- RUSSIA RELATIONS

Jaime S. Bautista

On June 12, both the Philippines and Russia will celebrate their national day.  Our national flags fly the same tricolors of white, blue and red, representing the common values and aspirations that our flags display. 

Because of these, the Philippines should be open to striking a strategic relationship with Russia, in line with the provisions of the Philippine Constitution that the Philippines “adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations “ and that “The State shall pursue an independent foreign policy.”

Russia is a Pacific Power and Permanent

Member of UN Security Council

Russia can be a valuable friend.  Consider that Russia was a former superpower, with great accomplishments in the field of defense, and particularly in science and technology.  Russia was the first country to conquer space with its Sputnik.  The transfer of S & T is of special interest to the Philippines.  

As the successor state of the Soviet Union, Russia is a Permanent Member of the UN Security Council.

Russia is also the successor of Tsarist Russia, with its Christian traditions and Eurasian culture.  A greater part of Russia is in Asia.  Russia’s eastward expansion was driven by its objective of obtaining an ice-free port in the open sea.  With Vladivostok, Russia became a Pacific Power and our maritime neighbor. 

In the 1990s, Russia actively engaged the Philippines at the multilateral level.  With Philippine support, Russia became an ASEAN Dialogue Partner, a member of APEC and of ASEM (Asia-Pacific Meeting).  In the political dialogue between Asia and Europe, Russia chose to speak as part of Asia.

Russia also became a member of the Asian Regional Forum (ARF).  ARF is ASEAN’s forum for official consultations on peace and security issues.  Its membership includes ASEAN’s ten Dialogue Partners as well as Papua New Guinea, Mongolia and North Korea.  ARF is unique in that it is involved in both track one (official) diplomacy and track two diplomacy, involving experts and scholars.

PH has rich history

Like Russia, the Philippines has a rich history. Philippine culture is similarly Eurasian, with influences from both the East and the West.   Thus, the Philippines is also multi-cultural and Filipinos profess different faiths.

The Philippines was an original signatory of the UN Charter, the first democracy in Asia, and was a founding member of ASEAN, together with Thailand and the three maritime countries of Indonesia, Malaysia and Singapore bordering the South China Sea.

PH Soft Power

The Philippines’ soft power is based on its large population, strategic location and natural resources, and large diaspora in different continents.

The Philippines has the thirteenth largest population in the world and the second largest in ASEAN.   The Philippines is the “P“ of the so-called VIP (Vietnam, Indonesia, Philippines) countries of ASEAN, whose economies are among the fastest growing in the world.

The Philippines is strategically located along the busiest highway of the seas, and is the backbone of the shipping industry.    It is at the center of the Archipelagic Continent, which extends from Japan in the north of this continent to the south in Indonesia.  The Philippines possesses the second most biodiversity of species in its maritime parks,

Moreover, the Philippines has global interests with a diaspora spread all over the world.  I was amused by a Spanish film which had the following conversation between a woman and her estranged husband: “I will not allow my children to be educated by a Filipina.”  The script was alluding to the influence that Filipina yayas may have over the children they care for.  Yaya means grandmother in the Catalan language.

And the Philippines has established its credibility within the UN and its organizations, by promoting and supporting peace initiatives and working to put development at the center of the UN agenda.

No conflict of interest

Russian Ambassador to the Philippines Igor Khovaev has noted that that there is no conflict of interest between Russia and the Philippines. 

Nevertheless, our bilateral relations have not yet fully matured, lacking a certain dynamism, and needing more mutual awareness and trust.  The Cold War is to blame for this since Filipinos for many years viewed the Soviet Union as the godless ideology threatening our security. 

Still, there is need to counter this perceived mistrust through confidence-building measures, and to put more resources to provide better information and promote greater understanding of each other’s aspirations. 

Holy Russia

The Communist regime of the Soviet Union tried to remove religion from the Russian psyche.   Soviet policy toward religion vacillated between extreme hostility and reluctant tolerance.  When Hitler invaded the Soviet Union, Stalin was forced to use religion to mobilize Russian resistance.  “Priests were asked to bless the troops and offer prayers for the defense of ‘Holy Russia.’ .”  (B. Smith, Soviet Politics, Continuity and Contradiction, Gordon, p. 312)

Officially, Russia has ceased to be a communist state.  The 1993 Russian Constitution promoted by President Boris Yeltsin provides that: “In the Russian Federation, ideological diversity shall be recognized…No ideology may be established as State or obligatory one. (Art 13, 1 and 2). 

The Communist Party failed in its coup attempt against Yeltsin in 1993, and then failed to unseat him in Presidential elections and later to impeach him in Parliamentary proceedings.  

With the rejection of the communist ideology, Russia struggled to find its national identity in the new post-Cold War period.  The Russians have repeatedly discovered that the Christian Orthodox religion is embedded in the Russian psyche. 

Despite virulent anti-religious campaigns, it was estimated in 1988 that religious believers in the Soviet Union constituted as much as one-half of the Soviet population. The Russian Orthodox Church at that time claimed to have more than 50 million members. (Idem, p. 312-313)

Today, the 1993 Russian Constitution provides that Russia is a secular State and that “No religion may be established as a state or obligatory one (Art. 14,  1).

Nevertheless, it is interesting to note that Andrei Fursenko, as Minister of Education and Science, refused to ban the compulsory teaching of religious subjects in schools.  Minister Fursenko, now retired, was an industrialist from the Academe when I interviewed him to be our first Honorary Consul in St. Petersburg.

UNCLOS and 9-dash-line

Russia takes no sides with respect to the claims to the Spratlys but supports a peaceful solution in accordance with international law, including the UN Convention on the Law of the Sea.

On the other hand, the Arbitral Tribunal of the UN Convention on the Law of the Sea (UNCLOS) has ruled that China’s 9-dash-line has no basis under international law.

The 9-dash-line encroaches on the exclusive economic zones and continental shelves of the Philippines and the other ASEAN maritime countries bordering the South China Sea.  It also violates the rights of countries to the high seas, and to the Area and resources underneath the High Seas, which pertain to all countries of the world, whether coastal or landlocked, under the principle of the Common Heritage of Mankind.

In this context, President Rodrigo Duterte recently remarked that he might ask President Xi Jinping whether it is fair that one country should claim the whole China Sea.

The 9-dash-line was first published by the Kuomintang regime in 1947 as an 11-point-line and it passed on to the People’s Republic of China, which reduced it to a 9-dash-line at the behest of Premier Chou Enlai.

Because of the tension in the South China Sea provoked by the 9-dash-line, this issue is of special interest to Russia as a Party to the UN Convention of the Law of the Sea and as a maritime nation in the Pacific, with a special responsibility to project its influence as a Permanent Member of the UN Security Council. 

4 May 2019

OF LAW AND POLITICS

RODOLFO SEVERINO, JR IN PEKING

Jaime S. Bautista

With the passage of time, Ambassador Rodolfo Severino, Jr. will surely become a legend in the Department of Foreign Affairs.  Already, he has been acclaimed as a patriot, an outstanding diplomat and a prolific writer.

I will not touch on Rod Severino’s well- known aspects of his diplomatic career and will limit myself to my fond memories of him at the Ateneo and when I was posted in Peking.

 Rod Severino was one of the gems of Ateneo de Manila’s High School Class of 1952.  High School ‘52 is reputed to be one of the finest graduating classes of the Ateneo, second only to the graduating class of Fr. Horatio de la Costa, Leon Ma. Guerrero and Jesus Paredes.

Rod Severino was handpicked to be the Ambassador’s right hand on policy matters when the Philippines opened its Embassy in Peking.

The Embassy’s staff was carefully selected, given the importance of China as a permanent member of the Security Council.  Initially the strategic foreign policy plan was to open diplomatic relations simultaneously with China and the Soviet Union.  But the Philippines established diplomatic relations first with China, and later with the Soviet Union because China was the sleeping giant in our neighborhood.

The Embassy’s staff was impressive and included the former Editor-in- Chief of the Manila Times, Juan Luna Castro.  This is not surprising because the Ambassador was the First Lady’s brother.  The Manila Times was the leading newspaper in the Philippines when the newspapers were closed by Martial Law.

Rod Severino was chosen because of his strategic thinking and his proven diplomatic skills, aside from his Jesuit training at the Ateneo and his post graduate degree in international studies from John Hopkins University.  He had previous experience working in Laos before he joined the DFA by topping the Foreign Affairs Examination. And he was endowed with exemplary communication skills.

Rod Severino had a broad vision of geo-politics at a time when the mindset at DFA was distrustful of Communist diplomats.  The DFA had just lifted the prohibition in Philippine passports, forbidding travel to communist countries.  Rod Severino developed warm relations with diplomats from the Soviet Union and the Second World.  My first experience in meeting Russian diplomats was upon the invitation of Minister Counselor Severino to join him at cocktails at the residence of his Soviet counterpart. 

 I also recall that Rod Severino chose to send his son, Kokoy Severino, to study at the local Chinese school instead of at the Embassy schools established by the Pakistani or the Indian Embassy.  He took note that the local Chinese schools dedicated for the admission of children of foreign diplomats were also designed as China’s show window to the world.  Thus, Kokoy had the benefit of studying Chinese and learning algebra in Chinese.

Severino had both writing and speaking skills.  One of my indelible memories of my tour of duty in China was the dinner at the Embassy for the Philippine agricultural delegation, which included Luis Taruc.  I was amazed at how Severino responded to the oratory of Taruc and several others in the language of Balagtas.  Severino was not to be outdone.  Pasikatan sila in Tagalog. 

Severino stayed on in Peking when Ambassador Benjamin Romualdez departed for another ambassadorial assignment and Narciso G. Reyes became our second Ambassador to China.  Upon the appointment of Severino as our first Consul General in Houston, Ambassador Narciso G. Reyes lauded Severino’s talents, saying he could see Severino following in his footsteps.  This comment was an honor in itself.

Indeed, this happened when Severino was elected as ASEAN Secretary General.  His stint at the Philippine Embassy in Peking was a precursor of his brilliant career that followed.

24 April 2019