By Dr. Alfredo C. Robles, Jr.
I’m posting this piece in the hope that it will be an input for the Philippines to Round 2 of the ongoing arbitration on the South China Sea.
First a disclosure. This is written by my brother-in-law, the certified nerd in the family. He is a retired Professor of International Studies from De la Salle University. He holds two doctorates – a Ph.D. in International and European Studies from the Université de Paris I (Panthéon-Sorbonne) and a Ph.D. in Political Science from Syracuse University. He was asked at the last minute to be the interpreter for both French President François Hollande and Philippine President Benigno Aquino for their joint press conference at the presidential palace during Hollande’s visit last February. In 2013, he was one of Metrobank Foundation’s 10 Outstanding Teachers. I forgot to say – when he graduated summa cum laude from the University of the Philippines, he broke the record then for having the highest grade point average.
Most of all, he took the trouble to read ALL THE TRANSCRIPTS of the arbitration and the ENTIRE decision of the arbitral court in order to draw out the following implications of the decision to the Philippine case. Please note that the words highlighted in blue lead to links of the sources he is referring to.
I know this is somewhat hard to read. It will remind you of your college. But do take the time out because it explains what the Philippines needs to do in Round 2, to achieve victory.
The award (decision) issued by the Arbitral Tribunal in the Philippines v. China arbitration creates the impression that this was a knockout (as a reporter for the Philippine Daily Inquirer put it) for the Philippines because of the following reasons: the award was adopted unanimously; the Solicitor General declared that China’s preliminary objections have been eliminated ; and China rejected the award.
The award is undoubtedly a triumph for the Philippines, in that China’s preliminary objections to the jurisdiction of the Tribunal, which were intended to terminate the proceedings, failed to prevent the Tribunal from proceeding to the next phase, the merits phase. In the latter, the Tribunal will hear the arguments on the substantive issues over Submissions 3 (Scarborough Shoal generates no entitlement to an Exclusive Economic Zone, EEZ or continental shelf), 4 (Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide elevations that do not generate entitlement to a territorial sea, EEZ, or continental shelf), 6 (Gaven Reef and McKennan Reef, including Hughes Reef are low-tide elevations that do not generate entitlement to a territorial sea, EEZ or continental shelf), 7 (Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an EEZ or continental shelf), 10 (China has prevented Filipino fishermen from fishing at Scarborough Shoal) and 13 (China operates law enforcement vessels in a dangerous manner causing risk of collision to Philippine vessels in the vicinity of Scarborough Shoal).
Nevertheless, the award does not represent a total victory for the Philippines. In the first place, the Philippines, as the award makes very clear, was opposed to the bifurcation – the separation into two phases (jurisdiction/admissibility and merits) – of the proceedings and wished to argue jurisdiction and merits at the same time, in part to save money, as the Solicitor General admitted in April 2014. The holding of the hearings on jurisdiction and admissibility was not part of the Philippine strategy. More importantly, if we read the text of the award, or even just the summary , we realize that the Tribunal did not decide that it had jurisdiction on 8 of the 15 submissions by the Philippines, including the submission on the nine-dash line. Rather it asked the Philippines to clarify the content and narrow the scope of Submission 15 (China shall desist from further unlawful claims and activities) and decided that the preliminary objections to Submissions 1, 2, 5, 8, 9, 12 and 14 do not possess an exclusively preliminary character. Consequently it postponed consideration of jurisdiction to rule on these submissions to the merits phase. This means that in the merits phase, the Tribunal could still decide that it has no jurisdiction to rule over these submissions and might therefore end up not ruling on them after all.
To understand the situation, we have to clarify the nature of preliminary objections. Settlement of international disputes by international courts is based on consent given by states parties to the dispute. A state may give its consent to have a dispute with another state submitted to an international tribunal in several ways, but when a dispute is actually submitted to a tribunal, it may nevertheless argue that it has not given its consent for that particular type of dispute. It will then challenge the jurisdiction – the power to hear and decide the case – of the tribunal by filing preliminary objections. The practice of international tribunals is to suspend the proceedings on the merits in order to rule on the preliminary objections.
There are three possible outcomes at this stage. The tribunal may decide to uphold the preliminary objections, in which case the proceedings are terminated. It may decide to reject them, in which case it will hear the merits. Finally, the Tribunal may decide that the objection to its jurisdiction does not possess an exclusively preliminary character. This third possibility arises when the questions raised by the objections and those arising on the merits are too intimately related and too closely interconnected for a court to be able to rule on the former without prejudging the latter. On the third and last day of the July 2015 hearings, the lawyers for the Philippines explicitly declared that there were no issues of jurisdiction or admissibility that had to be deferred to the merits phase.
The reason for this is understandable. As the great Italian jurist Roberto Ago explained in 1975, joining the preliminary objections to the merits inevitably doubles the length of the proceedings, as the objections are argued twice – the first time, during the jurisdictional phase, and the second time during the merits phase. In the Nicaragua v. US case (Military and Paramilitary Activities in and against Nicaragua, 1984-91), the International Court of Justice postponed for consideration in the merits phase a US preliminary objection. During the merits phase, it upheld the preliminary objection, but found another basis for ruling on the case. In the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) case, the ICJ ruled in the jurisdiction and admissibility phase that a preliminary objection raised by Spain did not have an exclusively preliminary character (1964), only to uphold the preliminary objection six years later (1970), thus terminating the proceedings without a decision on the merits. This outcome was particularly galling for Spain, for it had been obliged to argue the preliminary objections from 1962 to 1964, and subsequently, the remaining preliminary objection, together with the merits, from 1964 to 1970.
If we now examine the Philippine submissions that in the Tribunal’s view, did not possess an exclusively preliminary character – Submissions 1, 2, 5, 8, 9, 12 and 14 – we discover that they are among the most important of the Philippine submissions. Submissions 1 and 2 ask the Tribunal to declare that China’s claim to historic rights, as embodied in the nine-dash line, are invalid. According to the Tribunal, consideration of these two submissions would depend on the nature of China’s historic rights and examination of 2006 China’s Declaration excluding jurisdiction over historic bays or titles. Hence they would have to be examined together with the merits. Submission 5 requests the Tribunal to declare that Mischief Reef and Second Thomas Shoal are part of the Philippine EEZ and continental shelf. Mischief Reef is 126 nautical miles, and Second Thomas Shoal 104 nautical miles, from the nearest point in Palawan. Since a coastal state has an entitlement to an EEZ and a continental shelf of 200 nautical miles from its baselines, the two are in theory within the Philippine EEZ and continental shelf. However, as the Tribunal pointed out, if it found that there were a Chinese island within 200 nautical miles of either of these two features, then the feature(s) would also be in the Chinese EEZ and continental shelf. The reason for this is that an island, like any other land territory, has an entitlement to a continental shelf and an EEZ. The Philippine and Chinese EEZs and continental shelves would overlap and thus have to be delimited – but maritime delimitation is excluded by the 2006 Chinese Declaration excluding certain types of disputes from compulsory dispute settlement entailing a binding decision. For the same reason, the Tribunal would be prevented from ruling on the eighth and ninth submissions, which complain about China’s interference with Philippine oil exploration, seismic surveys and fishing in what the Philippines claims to be its continental shelf and EEZ.
In Submission 12, the Philippines argues that China has violated its duties under the 1982 Convention by occupation, construction of artificial islands, installations and structures and damage to the marine environment on Mischief Reef, which in the Philippine view is a low-tide elevation. The latter is defined by the 1982 United Nations Convention on the Law of the Sea as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide,” and does not generate entitlement to a territorial sea, EEZ or continental shelf. If the Tribunal found that Mischief Island is a rock or island and thus constitutes land territory, it would not have jurisdiction to consider whether China’s activities and appropriation were lawful, because disputes over military activities are excluded by China’s 2006 Declaration. The same reasoning would apply to Submission 14, which accuses China of aggravating and extending the dispute through its activities in and around Second Thomas Shoal (interfering with Philippine navigation, preventing the rotation and resupply of Philippine personnel and endangering their health and well-being).
If we consult the transcripts of the hearing on jurisdiction and admissibility held in July 2015, we realize that the Tribunal asked the Philippines questions on these points both before and during the hearings; moreover, it gave the Philippines the opportunity to reply to them in writing after the hearing. For example, as regards Submission 1, Judge Rúdiger Wolfrum, one of the five members of the Tribunal, asked the Philippines whether it would be first necessary to establish China’s entitlements under the 1982 Convention before it could be possible to determine that China’s claims exceeded those permitted by the Convention. Before the hearings, the Tribunal asked the Philippines with regard to submissions 5, 8 and 9, whether they presupposed a prior determination of sovereignty over any feature in dispute between the Philippines and China, which might have an entitlement to an EEZ that overlapped with the Philippine EEZ. In relation to Question 8, the Tribunal asked the Philippines about the implications, if any, of a continental shelf claim by China for the Tribunal’s jurisdiction. If China could claim a continental shelf that overlapped with that of the Philippines, then the two continental shelves would have to be delimited – but maritime delimitation is excluded by China’s 2006 Declaration. The Tribunal also asked the Philippines, in relation to Submission 12, whether China’s activities in Mischief Reef could be covered by China’s Declaration, which also excluded military activities. Finally, as regards Submission 14, the Tribunal asked whether a military activity would cease to be a military activity if it concurrently served other purposes.
The fact that the Tribunal decided to postpone consideration of its jurisdiction on these submissions to the merits phase suggests that the Philippines, which did not want any issue to be deferred, was not able to provide entirely satisfactory answers to these questions. In the merits phase, therefore, the Philippines will again have to attempt to convince the Tribunal that it has jurisdiction over these submissions. Most, if not all, of the Philippine arguments on the merits have probably been ready for some time now, since the Philippines prepared its Memorial (the first written pleadings) on the assumption that there would be only one phase (jurisdiction and merits). The question that now arises is whether part of these arguments will have to be amplified or revised in light of the Philippines’ inability to convince the Tribunal that it had jurisdiction on these issues. We can only hope that the Philippine arguments on the merits will, in this phase, finally convince the Tribunal that it has jurisdiction over submissions 1, 2, 5, 8, 9, 12 and 14. Otherwise the challenge to China’s nine-dash line and to certain Chinese activities in the South China Sea will have failed.
Grace Poe’s case has shades of ex-CJ Corona’s: bending rules to favor itself and then declare ‘let bygones be bygones? Too early to tell…..
from the opinion of Justice Carpio, page 35 3rd to the last paragraph states that …” This sentimental plea however, conveniently forgets the express language of the the Constitution reserving those high positions, in this case the position of Senator of the Republic, exclusively to natural-born Filipino citizens. Citizen requirement under the Constitution to qualify as a member of the Senate must be complied with strictly. To rule otherwise to a patent violation of the Constitution. Being sworn to uphold and defend the Constitution, the member of this Tribunal have no other choice but to apply the clear letter and intent of the Constitution.”
from the opinion above, puede bang matanggalan ng license si atty. pia cayetano?
In retrospect, I think Alan is bugging Pia to vote yes so Duterte will be forced to run as President.
SET is useless in being apolitical. All senators are having their own agendas.
*run for President.
Kaya sila ay nasa senado para gumawa ng BATAS. At katumbas nyan ay para sila ay sumunod sa BATAS. Pero bakit ang ibang nabasa ko ay pabor kay GPL dahil sa konsyensya? Teka di ba dapat mga pari ang nagsasabi ng ganyan?
Ang ibig sabihin nyan ay meron sila mga pangsariling dahilan/motibo kaya ganyan ang ginawa nila. Na pagtatakpan nila ang isat-isa kahit na alam nila wala sa katwiran.
Ang batas ng foundling ay where they were found they , iyan ang citizenship nila…. Unknown ang parents kasi..l si NANCY at ang tatlong SC justices ang hindi marunung sumunud sa International Laws… Tapos sa West Philippine Sea ,sabi ni CARPIO sa CHINA ay dapat sumunud at tumupad sa nakasulat sa International Laws…he….nakakhilo sila
Where they are found or born is jus soli rule, one that the 1935 and the succeeding constitution do not follow. The Philippines follow the jus sanguini rule, citizeship by blood, set by our constitution. You and all the Poe enablers are big on presumptions.
And international law is applicable only in as far as it will not contradict our constitution.
Well argued @Mary. It’s obvious the five senators voted on the basis of political accommodation and knowingly side-stepping that the citizenship case is a Constitutional question
@ kalarahi & mary, imho we don’t need to argue or even reply the posts of the likes of victinluz. the opinions of the 3 SC Justices are already loud and clear. the best thing we will do is to totally ignore his legal reasoning. pero lang sya sa 5 senador ng pag-iisip pagdating sa legal issues.
DOCUMENTS: SET members’ opinions on Poe case
BFD, thanks for the link which put in one place the opinions of the 3 SC Justices and the 4 Senator-members of the SET (Bam Aquino, Sotto, Legarda, Villar). The Rappler link states that Nancy Binay did not submit an opinion and Pia Cayetano’s opinion is not yet available at the SET website.
Justice Brion’s Dissenting Opinion – 66 pages
Tito “Wanbol University” Sottocopy’s Separate Opinion – 1 1/2 pages…. LOL :-o
Even Bam’s opinion is I think one page which centers on the International law that was debunked by Justice Brion’s explanation of the intricacies of the law….
Excerpts from Justice Carpio’s dissenting opinion, which looks like a poke at the Senators’ vote favoring GPL…
Excerpts from Justice De Castro’s dissenting opinion.
What do you make of this statement of the lady justice?
Is this saying that the Senators who voted yes didn’t upheld the Constitution they were duty bound to uphold?
In a way, Justice Carpio’s was more subtle than Justice Brion’s 66 pages opinion which I can summarize into 3 words.
Here, read my lips :-O “GPL is STATELESS”
Literal meaning of “absurdity” – idiocy, stupidity = what a competent and appropriate description of the level of incompetence/lack of legal comprehension of the five senators on Art.1V of the 1987 Constitution about citizenship provisions.
Wala iyan kay Mrs. Villar, 1-pager….
What can we expect pag walang alam ang senador. . . 1 1/2 pages!
Yun isa. . . 1 page!
as if no lawyers in the Staff!
buti pa nga iyun may 1 page, at least meron. Samantalang yung isang lawyer doon, no page na parang nangopya lang ng vote.
Kung si Pacman ay isang senador. . . glove-page? Or gloves-pages?
Kaya ang Senate natin these days ay kaparehas ng Circus or Carnival. . . grieving FUN!
thru courtesy of bobotantes’ popular will.
obvious naman ang reason ni Nancy kung bakit siya against sa opinion ng ibang senators. hindi nangangahulugan na kasing intellegent siya ng 3 SC Justices. Obviously, she submitted no formal opinion, because her opinion is her own – that is, her own father. LOL!
HA HA HA !
opn ni VP Binay!
he he he
Sen. Bam Aquino’s concurring opinion on the SET’s decision on Grace Poe
Happy Weekend everyone.
Allow me to share this sliverish ray of hope (but hope nonetheless):
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buninay1 • 2 hours ago
To the outhouse and back
Dug out from the Facebook is this lore about grandmother in Indonesia caring for her sick son and his only child. One day, with nothing to feed them, she was forced to steal tapioca from the plantation. Unfortunately she got caught and was sent to the court for trial. The plantation manager insisted that she be punished to serve as a warning to others. The judge agreed with him and decided to make her pay 1M rupiah equivalent to 100 USD or failing that to suffer 2 1/2 years in prison. The old lady wept for she really had nothing. The judge then put 100,000 rupiah into his hat while ruling to fine everybody in the courthouse 50000 rupiah each as dwellers of the city for letting the child to starve forcing his grandmother to resort to stealing. The court secretary was able to collect 3.5M rupiah allowing the old lady pay the fine and go home with the remainder of the money.
This narrative is touching a raw nerve because for so long our country has been subjected to so much government abuse, with small fries like the Indonesian grandmother invariably ending behind the slammer while the school of sharks is allowed to cruise by unmolested. And it looks more ominous with the SC mired in so much legalistic objectivity and Byzantine intricacies while trying to rule on important cases the resolution of which would impact or cascade down the lives of all Filipinos. As the last resort, the SC would have been our version of Indonesian judge who while applying the law to the letter had the wisdom to pull off distributive and restorative justices both at the same time with his initial contribution and fine imposition on the city dwellers which was his veiled attempt to instill in them their social responsibility to their fellow men.
This Indonesian judge who goes by the name Marzuki is an affirmation to Indonesia’s vibrant justice system and successful anti-corruption record. With their KPK or Corruption Eradication Commission, Indonesia has seen top senior officials and big businessmen, heretofore considered untouchables, duly investigated and brought to trial. For one thing, KPK is enjoying FULL independence from Indonesia’s judiciary. So while Indonesia”s KPK exercises brute power against the corrupt elements along the whole gamut of the food chain from the top down, our Office of Ombudsman by virtue of SC’s recent ruling will have its wings clipped and its powers checked by not totally unscrupulous lower judges with a fifth column collusion with corrupt individuals. This is a sad turn of event for our country considering it is the first time since the restoration of democracy with EDSA people power revolution in 1986 that we have an ombudsman in Conchita Carpio Morales who buckles down to work and is doing her job in pursuit of her office’s mandate, which is to exterminate corruption in the government.
Instead of going forward with draconian but judicious decision empowering the Office of the Ombudsman, the SC unanimously pulled her down to the level of a baranggay tanod barely able to bring the carabao hustlers and petty thefts to justice. The people in Indonesia overwhelmingly supports KPK with its extensive powers. Sadly, over here in our country where corruption thrives and multiplies like the heads of Hydra, public support for the Office of Ombudsman comes in trickles emboldening the SC to reduce it to a position no higher than that of an ordinary watchdog whose work can be watered down or diluted with so much delays and disruptions by sitting judges who think they have jurisdiction, more so as SC promulgates now they have, over the corruption cases involving their “clients”.
Maybe, the Office of Ombudsman by seeking to clarify with the SC the import of RA 6770 has committed a huge blunder. It has actually veered into the SC’s trap from which like a fly snagged by a spider’s cobweb spread in an outhouse upper corner it can no longer extricate itself and in which it has to lie waiting for the SC spider to first spin a gossamer thread around it before sucking it dry. But it is not too late for the Ombudsman. The people will wake up as if from a bad dream and save her from the certain peril of being emasculated and in fact sucked of substance to the last drop. The people will destroy the cobweb with the broomstick and let her go on her wings again.
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parengtony buninay1 • a few seconds ago
Oh wow! Bravo to you kabayan.
I will share your comment to as many kabayans I can reach.
Ancient Mariner says
Well spoken. We need the vote of the jeepney drivers, tricycle drivers, taxi drivers, market and stall vendors and others of similar ilk. How does one get the message across to them? They are the bosses of Pnoy. How will he reach them? Win their hearts and minds and you are half way there. What a huge publicity machine they are.
same here, bravo! @ avatar.
thanks @p. tony also..
Justice Brion’s dissenting opinion on the SET case involving Grace Llamanzares
Then it is true, the three Justices would inhibit when the case comes to SC….
Excerpts from Justice Brion’s dissenting opinion….
The overarching point of Justice Brion’s conclusion is that neither one or both of the parents of a foundling cannot be presumed to be a citizen of the country where the foundling was found.
His basis: …” a presumption is an established inference from
facts that are proven by evidence.131
The undisputed fact in the present case
is that the respondent was found in a church in Jaro, Iloilo; because of her
age at that time, she may conceivably have been born in the area so that Jaro
was her birthplace.
This line of thought, if it is to lead to the respondent’ s presumption,
signifies a presumption based on jus soli or place of birth because this is
the inference that is nearest the established fact of location of birth. Jus
sanguinis (blood relationship) cannot be the resulting presumption as there is
absolutely no established fact leading to the inference that the respondent’ s
biological parents are Philippine citizens.”
The good justice would rather believe that both tatay and nanay of foundlings found in Jaro, Iloilo in 1968 were not citizens of the Philippines; that the UN Convention on Statelessness was wrong in providing such presumption to foundlings; that the constitution excludes Filipino foundlings (or whatever technical name Brion wants to give foundlings) from the constitutionally protected right of equal opportunity to public service; that Filipino foundlings, who, by definition, has no ability to identify his/her biological parents, are second class Filipinos, at best., unless they can prove the citizenship of their unknown biological parents.
“unless they can prove the citizenship of their unknown parents” but gpl continuous to extend the submission of her DNA results which she first offered on 9/21/15 and given one month by the SET to submit or on 10/21/15 but extended to 11/5/15 and failed until now.
Could the reported rumor in Jaro that the famous foundling found in Jaro Cathedral was not newly-born but a bit grown-up and foreign-looking, be true?
Justice Brion will retire compulsorily on 12/29/16 at age 70 and may not be around when the subject DQ case finally reaches the SC unless David will do an Enrile/Mendoza master stroke by by-passing the Sandiganbayan/CA and directly petition the SC for Enrile’s bail.
“unless they can prove the citizenship of their unknown parents” but Gpl continuous to extend the submission of her DNA results which she herself first offered on 9/21/15 and given one month by the SET to submit or on 10/21/15 but extended by Gpl to 11/5/15 but failed again until now.
Justice Brion will retire on 12/29/16 at age 70 and may not be around when the subject DQ case finally reaches the SC unless David will do an Enrile/Mendoza master stroke by by-passing the Sandiganbayan/CA and directly petition the SC for Enrile’s bail
A very good dissenting OPINION. It was also like a LEGAL BRIEF for petitioner David.
. . . but a good clear dissenting opinion to answer respondent GPL’s claims and arguments.
Thanks for sharing this OPINION.
Justice Brion said that there was misrepresentation in GL’s petition for reacquisition of Philippine citizenship by declaring under oath that she was born to Susan. And since the adoption of GL by Susan and FPJ was of common knowledge, the BID should have red-flagged such declaration of parentage by GL.
BTW the dissenting opinion of Justice Brion confirms mostly, if not totally, the discussions on the citizenship of GL in Raissa’s blog. Reading all of the 66 pages seems a journey to Raissa’s blog starting when the issue on GL’s citizenship was first discussed here. In several portions of the Opinion I thought I was reading the posts of Baycas.
Indeed, the dissenting opinion of Justice Brion is really comprehensive and very enlightening. It is a must read for lawyers and a great help to non-lawyers.
on: In several portions of the Opinion I thought I was reading the posts of Baycas
…and I thought I was reading your post @Rene-Ipil on page 37 of AJ Brion’s Dissenting Opinion:
If we were to recognize the immediate grant of Philippine citizenship to foundlings, then we necessarily have to grant the same privilege to children born of Filipina mothers; we cannot recognize immediate Philippine citizenship to those fathers and mothers are unknown and yet deny the same treatment to those whose mothers are Filipinas.Separately fromthe strong elements of discrimination and unfairness…
@ rene-ipil …”In several portions of the Opinion I thought I was reading the posts of Baycas.”
kung ganoon malaki ang posibilidad na si justice brion at baycas ay iisa. iyong picture ni “baycas” mayroong pluma. ngayon sa kanyang post sasaglit lang sya, nasa the hague din ba sya?
just my wildest guess.
Ancient Mariner says
@BFD, thank you. A long but very worthy read. Thank you also to Justice Brion for sticking to the law and making this dissenting opinion.
It seems to me that GPL along with Escudero’s team of lawyer investigate the Constitution and Laws of the Philippines only until they can find something which supports their purpose. They then stop investigating, put their thumbs in their bums and their minds in neutral. Then they stick their tongues in their cheeks and proceed to write their case on behalf of GPL presenting a document which is half baked and tasteless due to the ignoring of certain essential ingredients. Hence the sour taste in the mouths of those readers who have savored the flavor of a thoroughly investigated and properly presented petition.
You’re welcome, AM, just doing my share of disseminating information for our consumption and understanding….