View from Malcolm
By Atty. Harry Roque Jr.
Manila Standard Today
By Atty. Harry Roque Jr.
Manila Standard Today
It is wrong for the government not to file a diplomatic protest over the Chinese naval vessel that was recently grounded 111 nautical miles from Hasa-Hasa in Palawan. No, the protest should not be that it grounded. Surely, a diplomatic protest cannot address the Chinese mariner’s obvious lack of familiarity with the dangerous waters surrounding the Spratlys group of islands; a fact that militates against their so-called ancient claim to the area. The protest should be over what the navy vessel was doing in our waters in the first place: patrolling.
Sovereign states could not exercise sovereignty and jurisdiction in the exclusive economic zone since their so-called sovereign right is limited to the right to explore and exploit the resources found thereat. Still, foreign naval vessels, particularly in disputed territory, have no business patrolling the same. It should have been Philippine vessels from either the coast guard or our navy that should have been patrolling these waters in the first place.
The failure to protest the activity of Chinese vessels militates against our own claim because underiInternational law, the principle of estoppel has not only been consistently applied; it has also been ruled to be sufficient to extinguish title to territory even if one originally existed. For instance, in the case of the Preah Villar temple which was then disputed between Thailand and Cambodia, the International Court of Justice ruled the temple to be within the territory of Cambodia because. In the early 1900’s, Thai authorities did not protest a map showing the temple to be in what was then the territory of France and today, of Cambodia.
Likewise, estoppel has been applied in the Eastern Greenland case between Norway and Denmark. There, the Permanent Court of International Justice cited Norway’s recognition of Danish title over Eastern Greenland when it recognized such title as embodied in the so-called Ilian declaration. In fact, estoppel, defined as a rule of evidence whereby a person or a state is precluded from denying the truth of a statement of facts he or it has previously asserted -has been accepted as a general principle of law in international law. Further, estoppel has oftentimes enabled states to prove a superior claim to disputed territory where both claimants are able to invoke almost identical evidence of effective occupation. It is hence the legal principle that has tilted the balance in favor of one state in a dispute where both parties have equiponderance of evidence.
The fact that we have recently been filing quite a number of protests over recent Chinese aggression and hegemony in the Panatag Shoal should be of no consequence. The law, after all, does not put a cap on how many of these protests we can file. We should not limit the number of these protests. Instead, we should always protest when there is a legal ground, and document them properly since they constitute strong evidence of title. This is because they form clear evidence that we have been asserting our claims through the means recognized by diplomacy as the proper form: a diplomatic protest. It is when we stop making these protests that we may be ruled as either abandoning our rights, or sitting on them.
In any case, this is not the only time when we should have protested Chinese incursion into our territory. Not too long ago, the international media reported a collision between an American destroyer and a Chinese submarine off the coast of Zambales.
Instead of protesting that incident, the Arroyo administration opted to sweep it under the rug and neither confirmed nor denied the incident. Perhaps, what worried the former administration was adverse public opinion that the Visiting Forces Agreement — that has enabled American ships to dock and navigate through our waters — could in fact increase the probability of military confrontation between the world’s lone superpower and the region’s military giant. While we do not know exactly where that collision occurred –as the Arroyo administration in fact claimed that it took place in international waters — the reality is that bereft of underwater scanners and facilities that would enable us to determine the presence of Chinese submarines, we will not know if they are in our waters. Note that while all submarines could exercise innocent passage even in our territorial waters, defined as 12 nautical miles from our coast. Still, the requirement is that they must surface. In any case, the presence of submarines and other military vessels patrolling disputed EEZ are not innocent. They constitute a threat to our national security.
What is clear is that once more, our policy makers opted to be very Filipino in their recent conduct: opting not to add further coal to a burning fire. The only problem here is meanwhile, our adversary appears happy to pour gas onto the flames.
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