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The law and diplomacy

Senior Associate Justice Antonio Carpio is a man who fully understands the law, especially as far as the continuing territorial dispute between the Philippines and China over the West Philippine Sea is concerned. Unfortunately, the controversy over who owns what part of the sea and the resolution of this long-running conflict are not simply matters of law.

On the first anniversary this week of the landmark ruling by the United Nations-backed Permanent Court of Arbitration, Carpio told a forum in Manila that he was aghast that the Duterte administration had set aside the decision that favored the Philippines. Carpio, who was an adviser of the Philippine government in the arbitral case filed in 2013 and which nullified China’s claims to most of the contested sea, described the current government’s policy on the dispute as “without discernible direction, coherence or vision.”

I have several concerns about Carpio’s opinion on the foreign policy initiatives of President Rodrigo Duterte, specifically on the Chief Executive’s decision to undertake an independent external position. The first has to do with Carpio’s continued and unwelcome incursions into an area that is really the province of the Executive, not the Judiciary.

I appreciate Carpio’s efforts in making the case that the Philippines is the rightful owner to the areas of the sea that Manila is claiming, efforts which were instrumental in securing the favorable ruling from the arbitral body. However, I do not see why Carpio insists on speaking out on the matter, which is no longer a legal question.

Foreign policy, after all, is the exclusive province of the Executive. And Carpio should realize that Duterte and his Department of Foreign Affairs must be allowed to implement programs that they believe will be good for the government and the people it serves.

As far as I know, Carpio is no longer involved in the crafting and implementation of current foreign policy. As a Supreme Court justice who really should speak through his decisions, Carpio must no longer be making statements that can be construed as the position of the highest court in the land, where he still serves.

It’s different when former Foreign Affairs Secretary Albert del Rosario, for instance, makes the similar statements. And Del Rosario did and continues to make them, by the way, even if simple prudence and propriety should dictate that he should no longer act like he is still the chief implementor of the Philippines’ foreign policy.

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Besides, the Duterte government never abandoned the PCA ruling, contrary to Carpio’s legalistic definition of the President’s statements to “set aside” the decision. The justice himself said in the same forum, after all, that the DFA “thankfully” clarified that there was no abandonment.

Far from being directionless, what the government actually did, according to Ambassador to Beijing Chito Sta. Romana, was to focus on diplomacy in order to mend fences with China for mutually beneficial relations instead of harping on the decision. The ruling will always be there and will always be in our favor, after all, even if enforcing it will be truly problematic.

Carpio may know the law. But Sta. Romana, one of the most inspired appointments of Duterte in my opinion, knows China.

And our ambassador, an Emmy-award winning television journalist who has been in China since 1972, has long been critical of the “hard power” approach of the previous administration to the territorial dispute, which Carpio seems to be still enamored with. “If we push China, it will push back harder, and then where would we be?” Sta. Romana told me in an interview.

(It would have been different if China had agreed beforehand that it would abide by any PCA ruling on the dispute. But China was never a party to the proceedings and has basically dared anyone to enforce it after it was issued.)

The United States, which the government of Noynoy Aquino wrongly believed would back up its territorial claim, has not done anything to enforce the UN body’s decision—nor is it likely to anytime soon. Meanwhile, Duterte came into power, unveiling a policy of strengthening ties with all countries, especially our neighbors (to include China and Japan) for the economic benefit of all.

This is where diplomacy is different from the law. If Duterte, who is himself a lawyer, was not also a realist politician, he would have harped on the ruling instead of deescalating the brewing conflict with China and ushered in improved economic cooperation that benefits the people of both countries.

I have always wondered why there are still those who believe that the Philippines cannot have good relations with everyone, especially since going to war with any other country is definitely not an option for us and when those good relations benefit us economically.

And I am glad that the Philippines’ foreign policy is no longer in the hands of those who think the law is more important than peace and prosperity, especially if the law cannot be enforced without us—and probably us alone—waging a war that we will never win.

Topics: Jojo Robles , The law and diplomacy , Senior Associate Justice Antonio Carpio , territorial dispute , Philippines , China , West Philippine Sea , Ambassador Chito Sta. Romana
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