What I think can be done
Credit to Author: FR. RANHILIO CALLANGAN AQUINO| Date: Sun, 30 Jun 2019 16:11:35 +0000
NO complicated mathematical tool is needed to understand why, to the Chinese, the waters west of our archipelago should remain hospitable to them — or at least, free of any serious resistance.
Aside from a humongous population and an implacable ambition to be a world economic (imperial!) power, it is what I once characterized in a column as “the Middle Kingdom” mindset. China is ensconced at the center of the world with barbarian vassals all around it. So, no matter the show they put up of respect and deference, all other countries, apart from those that they fear, are vassal-states. A Hong Kong scholar who is a personal friend and now teaches in England once told me that the big difference between American economic assistance and its Chinese counterpart is that Americans always demand institutional adjustments, policy changes and even structural accommodation. Our legal history bears the record of laws and rules that we have had to pass in order to win support from American-based or American-dominated financial institutions. China, he claimed, made no such demands and merely extended assistance. Now, I know that that is only half the story, because it has become clear that where there is default on loan payments, national assets are seized and sequestered by China. I asked another colleague at the Graduate School of Law of San Beda what ADB did when there was imminent default. He gave me the very reassuring answer: “We have lawyers who see to it that that does not happen.”
There is no doubt that the UN Convention on the Law of the Sea allows the Philippines to enter into agreement with other States on the exploitation of resources over which we have sovereign rights in the exclusive economic zone (EEZ). What irks many though is the seeming nonchalance with which we acquiesce to the brazen incursions of the Chinese to harvest what we alone should be harvesting and to harass those who have a legal right to be there. Article 62, paragraphs 2 and 3 of UNCLOS makes provision for cases where the coastal state — in this case, the Philippines — is unable to optimize its use of the resources, in which case it may enter into agreements allowing other States to partake of the bounty of the EEZ. But China has a huge, almost insatiable appetite of which we must be wary, for foremost too, in the UNCLOS provisions is concern with the regulation of fishing and the conservation of marine resources.
We Filipinos should make noise — there should in fact be a deafening clamor against Chinese gumption. We do not object to them cruising on the waters of the EEZ, but ramming our fishing vessels? That is an utterly different thing. But I am really shocked when I continue to see student-activists raising hoarse voices protesting the “Rehimeng US-Duterte.” Where is that coming from? And while youth groups and the chatterboxes they send as representatives to our legislature protest every regulatory measure, why is there no whimper of protest against the Chinese? The CPP-NPA has continuously waged a war of attrition at the cost of so many lives, purportedly in defense of the poor and the downtrodden and in resistance to imperialist forces. Why do they not train whatever firepower they may have against the foes of our fisherfolk? Because they will not bite the hand that feeds them?
Earlier, I proposed that one legal avenue would be to file a petition for a writ of mandamus against responsible offices and agencies of the State such as the Philippine Coast Guard, the Philippine Navy, perhaps even the Office of the President. Aside from the President’s constitutional duty to see to the faithful execution of the laws, there is also the direct mandate given the State by Article XII, Section 2 that directs that the nation’s wealth in the exclusive economic zone, inter alia, be protected, and its enjoyment and use, reserved exclusively for Filipinos. While I do not read this provision as excluding such agreements as UNCLOS allows, what it does create without a doubt is an enforceable obligation on the part of the State to protect our patrimony, particularly in respect to the exclusive economic zone. One of the first negative requirements for the writ to issue is that what should be commanded should not be a matter of discretion. Clearly, the duties imposed by the Constitution in regard to the protection of the resources of the EEZ are not discretionary in nature. And token gestures such as inutile protests will not do. The duty is to protect the resources and see to their exclusive enjoyment by Filipinos.
Mandamus is one of the strongest of prerogative writs — and quite understandably, the courts will be sparing in commanding a co-equal, coordinate branch of government to perform its duty. China may not think much of our Constitution, but it would be very wrong for us Filipinos to concur in this depreciation of our fundamental law. If anything at all, Chinese bullying is proof not of the inutility of international law, but of the need to strengthen it and to develop more effective enforcement mechanisms. In this respect, the US can do much by being more respectful of international law and not exempting itself from its rules when it suits its purposes. And rather than intimidating our people into submission and cowing them into a posture of servility, why do we not take our own government to task through the avenues that the law provides? One of these is to bring to bear the compulsive power of the courts on the agencies of State tasked with the enforcement of law and the vindication of rights!
rannie_aquino@csu.edu.ph
rannie_aquino@sanbeda.edu.ph
rannie_aquino@outlook.com
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