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Should PH seek provisional measures from U.N. vs China

June 30, 2015June 30, 2015 Ellen Leave a comment

China released this photo of a vegetable garden in Fiery Cross which the Philippines says is a reef which cannot sustain habitation.

China released this photo of a garden in Fiery Cross which the Philippines says is a reef which cannot sustain habitation.

As China continues its massive reclamation and construction in areas surrounding the seven reefs that it occupies in the disputed Spratly islands in the South China Sea, the Philippines can only watch helplessly.

The Philippine government’s protests through media now sounds like a broken record.

The United Nations International Tribunal on the Law of the Sea will start the hearing of the Philippine suit against China’s nine dash line map which encroached on territories of the Philippines, Brunei, Indonesia, Malaysia and Vietnam on July 7.

But even a favorable decision by the U.N Arbitral Tribunal, which is expected next year, won’t bind China which has refused to participate in the legal process.

What is left for the Philippines to do then?

Two weeks ago, Supreme Court Senior Associate Justice Antonio Carpio, who has taken almost singlehandedly the job of educating Filipinos and the world on the South China Sea dispute, suggested that the Philippines should ask the U.N. for a “provisional measure” to stop China’s reclamation and construction activities in the disputed seas.

China’s construction in Fiery Cross Reef

The UN Convention of the Law of the Sea or UNCLOS provides that if a dispute has been duly submitted to a tribunal of competent jurisdiction, the tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final decision.

Lawyer Harry Roque, who is director of the UP Law Center’s Institute of international Legal Studies, disagreed saying it might boomerang and adversely affect the Philippine suit against China.

“This action could likely trigger the reservation clause that China had placed, and which the Tribunal has allowed: namely that it be allowed military and law enforcement activities in connection with the exercise of sovereign rights,” Roque said.

Former Philippine Permanent Representative to the United Nations Lauro Baja Jr. had suggested seeking provisional measures immediately after the Philippines filed a suit against China way back in January 2013 but sources at the Department of Foreign Affairs said the legal panel is concerned that it might weaken the Philippine position on the matter of the jurisdiction of the U.N court.

Carpio addressed these concerns in his lecture last Thursday at the Pamantasan ng Lungsod ng Maynila.
Carpio said China cannot use its reservation in the UNCLOS to justify its reclamations and constructions in its occupied features in the Spratlys because it has always said that they are “civilian functions,” and military facilities will be installed only incidentally, to defend the civilian structures.

“ Clearly, China does not want to invoke ‘military activities’ as the purpose of its reclamations. Subi Reef, one of China’s big reclamations from a submerged area, is situated in the high seas. Article 88 of UNCLOS mandates that ‘the high seas shall be reserved for peaceful purposes,’ preventing China from invoking ‘military activities.’ If China admits that its reclamations are for ‘military activities,’ it will immediately be in glaring violation of UNCLOS,” Carpio further said.

Carpio also cited Article 192 of UNCLOS which states that “States have the obligation to protect and preserve the marine environment” and Article 123 which requires coastal states in semi-enclosed states to “cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention xxx with respect to the protection and preservation of the marine environment.”

Carpio said China’s massive and wanton reclamation in the Spratlys is destroying the marine environment and it did so without notifying, consulting or cooperating other coastal states.

What’s the word from the Department of Foreign Affairs or Malacañang?

China’s position paper shows wide gap with PH stand

December 11, 2014December 11, 2014 Ellen Leave a comment

Pres. Aquino and Pres. Xi Jinping, Beijing Nov 2014

The Position Paper of China on the case filed by the Philippines with the United Nations Arbitral Tribunal showed the wide gap between the two countries as regards their conflicting claims on th South China Sea islands, reefs and rocks.

The meeting between President Aquino and Chinese President Xi Jinping may have lowered the tension but the two countries are really far apart in attitude and perspective.

Example:

Before the meeting of Leaders of the Asia Pacific Economic Cooperation in Beijing last month, Foreign Secretary Albert del Rosario said their bringing unilaterally the territorial conflict with China before the U.N. court is not an unfriendly act.

China has refused to participate in the U.N. suit, the first ever filed against the economic superpower, insisting instead on bilateral negotations which the Philippines shunned.

“We precisely selected arbitration because, as was defined by the United Nations, it is not an unfriendly act. It is, as a matter of fact, one that we are utilizing to be able to preserve a valuable friendship,” del Rosario said.

That’s not how China sees it.

In it’s position paper released a week before the Dec 15 deadline set by the U.N. court for China to submit a comment on the Philippine complaint, China said if both parties in the conflict agreed to bring the issue for arbitration to the U.N., that is not an unfriendly act. But that is not the case with the Philippine complaint.

” China does not consider submission by agreement of a dispute to arbitration as an unfriendly act. In respect of disputes of territorial sovereignty and maritime rights, unilateral resort to compulsory arbitration against another State, however, cannot be taken as a friendly act, when the initiating State is fully aware of the opposition of the other State to the action and the existing agreement between them on dispute settlement through negotiations.

“Furthermore, such action cannot be regarded as in conformity with the rule of law, as it runs counter to the basic rules and principles of international law. It will not in any way facilitate a proper settlement of the dispute between the two countries.
Instead it will undermine mutual trust and further complicate the bilateral relations.”

The 27-page Position Paper repeatedly and consistently underscored the lack of jurisdiction of the U.N. Arbitral Court on the Philippine suit.

The U.N Arbitral Court is not for territorial disputes and conflicts concerning a country’s sovereignty which are under the jurisdiction of the International Court of Justice (ICJ).

In the ICJ, however, both countries should agree to bring their conflict for arbitration.

The U.N. International Tribunal on the Law of Sea deals with interpretation of the U.N. Convention on the Law of the Sea signed by 165 countries including the Philippines and China.

China said accused the Philippines of circumventing the limitations of U.N. Arbitral Court.” In an attempt to circumvent this jurisdictional hurdle and fabricate a basis for institution of arbitral proceedings, the Philippines has cunningly packaged its case in the present form. It has repeatedly professed that it does not seek from the Arbitral Tribunal a determination of territorial sovereignty over certain maritime features claimed by both countries, but rather a ruling on the compatibility of China’s maritime claims with the provisions of the Convention, so that its claims for arbitration would appear to be concerned with the interpretation or application of the Convention, not with the sovereignty over those maritime features. This contrived packaging, however, fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea.”

China summarized the Philippine position thus:

First, China’s assertion of the “historic rights” to the waters, sea-bed and subsoil within the “nine-dash line” (i.e., China’s dotted line in the South China Sea) beyond the limits of its entitlements under the Convention is inconsistent with the Convention.

Second, China’s claim to entitlements of 200 nautical miles and more, based on certain rocks, low-tide elevations and submerged features in the South China Sea, is inconsistent with the Convention.

Third, China’s assertion and exercise of rights in the South China Sea have unlawfully interfered with the sovereign rights, jurisdiction and rights and freedom of navigation that the Philippines enjoys and exercises under the Convention.

China said the essence of the the Philippine suit is the territorial sovereignty over several maritime features in the South China Sea, which does not concern the interpretation or application of the Convention.

“It is the view of China that the Arbitral Tribunal manifestly has no jurisdiction over this arbitration, unilaterally initiated by the Philippines, with regard to disputes between China and the Philippines in the South China Sea.”

Del Rosario fights media battle while China controls battlefield

June 19, 2014June 19, 2014 Ellen Leave a comment

Foreign Secretary Albert del Rosario: his policy is to ‘shame” China.

Statements coming from Foreign Secretary Albert del Rosario betray helplessness over the situation in the South China Sea.

The Philippines is losing the battle that he led the country to wage against China.

Yesterday Del Rosario said that the Philippines will ask the United Nations Arbitral Court to hasten the resolution of the 2013 suit it filed questioning the legality of China’s nine-dash line map in the light of the latter’s expansion activities on islands they are occupying in the disputed areas of the Spratlys in the South China Sea.

Solicitor General Francis Jardeleza had said that they expect the International Tribunal on the Law of the Sea to rule on both jurisdiction and merit of the Philippine claim “between 2015 to 2016.” China has refused to participate in the Philippine case.

Earlier, del Rosario said he will ask the Association of Southeast Asian Nations to call for a moratorium on activities in the South China Sea. Four –Philippines, Vietnam, Malaysia, Brunei – out of ten Asean members have conflicting claims in the Spratlys.

BRP Sierra Madre in Ayungin: holding the fort in Ayungin shoal in Spratlys.

China is not a member of Asean. If Asean issues a call for a moratorium, who will be bound by it? The Philippines, Vietnam, Malaysia and Brunei. Aren’t we tying our own hands while China continues fortifying their claims?

Besides there’s already the 2002 Declaration on the Conduct of Parties in the South China Sea which China has signed.

The 2002 DOC states that “The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”

That particular provision is carried in the draft Code of Conduct in the South China Sea which Asean has approved and is being negotiated with China. Th

Analysts said that China’s expansion- turning rocks they have occupied into islands by reclamation- is in anticipation of the signing of the Code of Conduct in the South China Sea, which would exhort signatories to maintain the status quo in the disputed areas at the time of the signing.

There nothing wrong for an Asean call for moratorium but if Del Rosario thinks that’s something that would persuade China, he is dreaming. He should know that territorial conflicts are not resolved by dreams.

If China is expanding their occupied territories (they are not taking over new rocks or islets, so far), why can’t the Philippines do the same? We have presence in nine features in Spratlys as against Vietnam’s more than 20, China’s 8, Malaysia’s 4, Taiwan’s one. Zero for Brunei.

What prevents the Philippines from occupying more rocks or islets? Why don’t we ground another Philippine Navy ships in one of those unoccupied rocks like what the Navy did with The BRP Sierra Madre in Ayungin shoal in 1999.

Del Rosario has shunned bilateral talks with China which puzzles other foreign policy experts. Former Ambassador to the United Nations Lauro Baja Jr. has criticized this policy saying “The negotiating table is the greatest equalizer in international relations.“ He said whatever the size of the country, all are equal in negotiations.

Vietnam and China are talking despite a much-more serious conflict between them.

Del Rosario has also told President Aquino about his opposition to backchannel talks thereby closing informal communication with China, which has proven effective in other countries experience in conflict resolution.

Del Rosario talks to China through the media– complaining about China’s actions before filing a protest and announcing the Philippines’ next moves before actually doing it. A journalist friend said , “We are fighting a media battle while China has already occupied the battlefield.”