“Crimes against humanity” is about to be taken to a whole new level. Last March 15, former Philippine chief diplomat Albert del Rosario and former Ombudsman Conchita Carpio-Morales took President Xi Jinping and other top Chinese officials before the International Criminal Court (ICC).
In a communication sent to Prosecutor Fatou Bensouda, the two former Filipino officials claimed that the Chinese leaders committed crimes against humanity for damaging the marine environment as a result of Beijing’s artificial island-building in the West Philippine Sea. The two also cited interference in the conduct of fishing activities. Such actions allegedly endangered the livelihood and food security of the Philippines and of other nations rimming the semi-enclosed sea. The two requested ICC to initiate preliminary examination and subsequent investigation.
The communication was sent to ICC two days before the effectivity of the Philippines’ withdrawal from the Rome Statute that created the court. This ploy may avoid possible jurisdictional obstacle since it can be argued that the crime transpired in the Philippines at a time when it was still a party to the Statute. Manila’s withdrawal came at the heels of ICC’s preliminary examination into President Rodrigo Duterte’s drug war. The waters west of Palawan and Luzon are rich fishing grounds but there are hardly any reliable estimates as to the number of fisherfolk dependent on it, more so its contribution to national food security.
Overplaying the legal card?
If securing compensation for damages to the marine environment is a principal motive, one may ask whether the ICC offers the best route. Those emphasizing diplomacy in dealing with China argue that the legal card cannot be overplayed. For China to see the move as an abuse of international law will only strengthen domestic voices arguing that external parties are out to employ legal warfare to curb China’s rise.
A weakened, if not uninterested, Chinese attitude towards international maritime law is not in anyone’s interest. Hence, while the ICC allows private parties to take on state leaders, in this instance, the context and the actors behind the case cannot be disassociated from the overall tapestry of the storied dispute.
Approaching the third year of the landmark 2016 arbitration ruling, the ICC notice demonstrates exasperation by some quarters over what they see as the slow progress towards implementing the award and failure to stem reported incidents of harassment despite renewed Filipino fishing access in the Panatag (Scarborough) Shoal and other areas of the West Philippine Sea.
Del Rosario was heavily invested in the legal challenge against China’s expansive claims and assertive actions in the contested sea. Under his watch as top diplomat, Manila initiated arbitration proceedings against Beijing in 2013, several months after the 2012 Panatag Shoal incident. The former Philippine Ambassador to the United States disagrees with the present administration’s handling of the maritime row.
Compared to the confrontational approach of the past government, Duterte stresses dispute management and confidence building measures. He also saw in China a partner for his country’s economic and infrastructure development, as well as combating non-traditional security threats like terrorism, illegal drug trade and transnational crimes.
Apparently, Del Rosario, Supreme Court Senior Associate Justice Antonio Carpio (another stalwart in the legal offensive against China), and the political opposition failed to sway Duterte to change his view. This is despite the fiery leader saying that he will raise the matter of arbitration with China before he steps down.
While government did not object to the ICC move, it is unlikely to obtain state support. As long as the three red lines – no construction on Panatag Shoal, no unilateral drilling for oil and gas in Recto Bank and no interference in routine supply missions in the Kalayaan Islands (Spratlys) – are not crossed, disputes will continue to be downplayed and the cooperative aspects of the relations will get center stage. Fishing and other maritime incidents are expected to be addressed through bilateral channels.
Undercurrents despite improved ties
The ICC communication appeals to three audiences – the Philippine government, the Filipino domestic public and the international community. Frustrated with Duterte’s approach, Del Rosario and Morales now appeal to the domestic public ahead of midterm elections in May, where engagement with China and the maritime dispute have become hot-button issues. The case may put administration bets on the defensive and pressure them to speak strongly against China lest they appear soft toward the country’s largest trade partner and investor.
As its influence in the region and the world grows, it is not surprising that China has become an election issue. However, it is also normal for candidates to criticize Beijing during the campaign period, but eventually mellow and opt for bilateral dialogue once they assume power.
The complaint may also be an attempt to galvanize international support. The former Aquino administration may have initially believed that the arbitration will tie the hands of the next government to continue the legal battle, rallying international pressure against Chinese activities in the sea and pressuring China into complying with the ruling. However, this strategy went awry when Duterte won and a new approach to the longstanding dispute was adopted. The tough-talking longtime Davao mayor ushered in quiet diplomacy and dialogue through a bilateral consultation mechanism. Moreover, as the current country coordinator for ASEAN-China relations, Manila is playing an active role in pushing for the early conclusion of a maritime code of conduct.
On the other hand, unhealthy rhetoric from top government officials raises concern and increases demand for transparency in deals entered into with China. For instance, Presidential Spokesperson Salvador Panelo said he sees nothing wrong with offering patrimonial assets as collateral to Chinese loans. Even President Duterte’s remarks that the country cannot afford to wage war against China suggest a sense of fatalism least expected to come from a national leader. Relevant government agencies have to step up their public relations initiatives to correct misconceptions and allay such suspicions.
The filing of the ICC notice caused embarrassment for Manila as it came just days before the first official visit of Foreign Affairs Secretary Teodoro Locsin Jr. to Beijing. Locsin was joined by other top officials including Executive Secretary Salvador Medialdea, Finance Secretary Carlos Dominguez and other economic managers. The visit helped prepare the groundwork for Duterte’s attendance at the Second Belt and Road Forum hosted by Xi Jinping in Beijing later this month. The timing of the communication also taps into the undercurrents of anxiety and lingering concerns over bilateral ties with China. Opposition candidates have warned of a debt trap and raised worries about compromising sovereignty and national security in the course of engaging Beijing.
Obstacles ahead, setting a precedent
The ICC notice face several hurdles. For one, China is not a party to the Rome Statute and this presents a serious jurisdictional impediment. Second, while the alleged crime did take place in waters that are part of the Philippines’ exclusive economic zone (EEZ) where the country exercises sovereign rights, they are not necessarily part of the country’s territory.
Domestic and international law exhibit divergence in the conception of Philippine territory. Third, while the 2016 arbitration decision ruled that none of the land features in the contested sea constitute an island that can generate an EEZ, complications may still arise as the tribunal did not made a determination as to the ownership of rocks and high-tide elevations which are entitled to a 12-nautical mile territorial belt. Hence, the ICC may be put in a quandary evaluating alleged incidents that took place within the 12-mile limit of features claimed by Manila but occupied by China or other claimants. Fourth, the 2016 ruling also affirmed traditional fishing rights of other coastal states in Philippine-claimed Panatag Shoal. These underscore the importance of the reaction of other interested parties to the communication.
The ICC will establish a major precedent should it decide to examine and assume jurisdiction over the complaint. All 18 ICC cases involving crimes against humanity thus far took place in Africa, with many committed in conjunction with war crimes by leaders of rebel or government forces in conflict. Hearing the matter brought by ex- Filipino officials will be the first where the setting is a maritime domain long considered a regional flashpoint.
In 2015, Mauritius, an ICC party, won a landmark case against the United Kingdom invalidating the latter’s decision to declare Chagos archipelago a marine protected area (MPA). Chagos is home to Diego Garcia, a large U.S. military base in the Indian Ocean leased by U.K. in 1966. The base agreement expires in 2016 and the MPA declaration was seen as a move to curtail Mauritius’ interest on a renewal agreement. Mauritius claims Chagos as part of its territory, and it protests the islands’ depopulation to give way for the U.S. military base, as well as restrictions on access to the islands’ marine resources. Should damage to the marine environment and hindering maritime resource rights constitute a crime against humanity, many coastal states may seek similar ICC intervention.
This article was published by APPFI
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