Category: UNCLOS

Unable to defend The Hague junket, Lacierda turns catty

Ellen Leave a comment

Harry Roque

Harry Roque

Presidential Spokesperson Edwin Lacierda was being catty when he dismissed as “KSP” lawyer Harry Roque’s criticism of the huge Philippine delegation to the hearing of the U.N. Arbitral Tribunal of the case filed by the Philippines against China in The Hague, Netherlands.

Presidential Spokesman Edwin Lacierda

Presidential Spokesman Edwin Lacierda

Roque raised a valid issue.

He said: “With only three oralists scheduled to make submissions before the Tribunal, why is it that we have a delegation of at least 35? I say at least because the number does not include our foreign counsels and their staff. I believe the correct number of our delegation should be at least 50. That’s 50 business class tickets and 50 de luxe rooms at five-star hotels in very expensive The Hague!”

Lacierda did not refute Roque’s numbers so I suppose the latter’s information was correct. From news reports from The Hague I have only the following names:

1. Solicitor General Florin Hilbay
2. Foreign Affairs Secretary Albert F. del Rosario
3. Senior Associate Justice Antonio Carpio
4. Associate Justice Francis Jardeleza
5. Speaker Feliciano “Sonny” Belmonte, Jr.
6. Executive Secretary Pacquito Ochoa, Jr.
7. Defense Secretary Voltaire Gazmin
8. Justice Secretary Leila de Lima
9. Sandiganbayan Justice Sarah Jane Fernandez.
10. Presidential Adviser on Political Affairs Secretary Ronald Llamas,
11. Chief Presidential Legal Counsel Benjamin Caguioa
12. Undersecretary Emmanuel Bautista, executive director of the Cabinet cluster on security, justice and peace
13. Deputy Executive Secretary for Legal Affairs Menardo Guevarra,
14. Consul General Henry Bensurto
15. Paul S. Reichler and Lawrence H. Martin (Foley Hoag LLP, Washington DC, United States of America);
16. Professor Bernard H. Oxman (University of Miami School of Law, Miami, United States of America);
17. Professor Philippe Sands QC (Matrix Chambers, London, United Kingdom); and
18. Professor Alan Boyle (Essex Court Chambers, London, United Kingdom Paul Reichler, head of the Legal team
19. Deputy presidential spokesperson Abigail Valte

hilippine delegation fill the hearing room at the Peace Palace, The Hague, Netherlands. Photo by Abigail Valte.

hilippine delegation fill the hearing room at the Peace Palace, The Hague, Netherlands. Photo by Aigail Valte.

Valte defended the size of the delegation saying people should not “compute the support of a government united to fight for the country.”

We will never probably never know the true amount spent for this big delegation but I estimate it to be not less than P25 million.

Roque wrote in his blog: “I am currently in Pangasinan documenting how fishermen have been deprived of livelihood by the Chinese who have taken over their traditional fishing grounds in Panatag shoal. You don’t need a degree from the Kennedy School of Government to conclude that the money spent for the mirons in The Hague should have been used to assist the displaced fisher folks of Panatag instead. Oh well, only in this administration do you have policy makers fleecing off the people’s misery! Talk of the ultimate junket at The Hague! “

Roque further said, “All told, our delegation should not have exceeded 10 given that we have a full-fledged diplomatic mission there headed by our very capable Ambassador Jet Ledda and ably assisted by Atty Peachy Defensor, youngest sister of Inday Miriam. I would understand why the Office of the Solicitor General, the Supreme Court Justices and the Department of Foreign Affairs should be there. But 35 in addition to our foreign counsels? Come on!”

A lawyer who goes by the blog name “Saxnviolins” said it’s Lacierda who is KSP: Kulang sa paliwanag (short in explanation.)

Saxnviolins stressed that the The Hague occasion is “Legal arguments – hearing on jurisdiction.”

He asked: “Ano naman ang contribution ni Gazmin diyan? Is he going to testify on the military installations as proof of China’s aggressiveness? Eh hindi naman niya nakita, he is not a pilot. Besides, kung yun lang, you can introduce photos as evidence. In the words of Inday Badiday, careful, careful. Military matters are not within the jurisdiction of the ITLOS. because military action is the quintessential sovereign act, and therefore, the province of the ICJ.

“Si Belmonte? Ano naman ang silbi? What about Ochoa?”

His most scathing remark was reserved for Llamas: “At ang pinakamalaking ano ang silbi, yung pirated-DVD-purchaser, Ronald Llamas. Ano ang silbi niyan?”

Saxnviolins also wondered what has a justice in a graft court got to do with the PH case versus China?

“They brought along Sandiganbayan Justice Sarah Fernandez. What? May Philippine graft and corruption angle ba yan? The only graft and corruption I see is the waste of tax money on a junket,” he said.

He said it’s true Fernandez was once with the Office of the Solicitor General. “So what? Isang katerba na nga ang foreign counsel. I doubt there is anything they can contribute that Paul Reichler does not already know.”
Another blogger , MP Rivera,surmised what Llamas is doing in the hearing in The Hague: “Baka kukuha ng record si Llamas sa mga hearing at ibebenta sa Recto. Sideline nga naman!”

Are you sure it’s the hearing that he would be making a video recording? Don’t forget The Hague is just a short train ride to Amsterdam – where window shopping is of the lusty kind.

What the Philippine U.N. case vs China is not

Ellen Leave a comment

Permanent Court of ArbitrationContrary to what many think that the Philippines case against China in the Arbitral Court of the United Nations Commission on the Law of the Sea (UNCLOS) will clarify who owns what or which of the reefs in the Spratlys, it won’t.

That’s because that is not in the scope of the U.N. Arbitral Tribunal where the Philippines filed the case. The UN Arbitral Tribunal only deals with the interpretation and application of UNCLOS.

It does not decide on sovereignty over disputed features in the sea.

Territorial disputes are the domain of the International Court of Justice or ICJ.

The reason the Philippines didn’t haul China to the ICJ was it requires the participation of all parties in a territorial dispute. China refuses to be a party to an ICJ case. It has always insisted that the best way to resolve disputes is bilateral negotiations.

The Philippines, on the other hand, insists that negotiations should be multilateral – among all claimants in the Spratlys.

The Philippines’ insistence on multilateral negotiations is puzzling in the case of Scarborough Shoal (also known as Panatag Shoal and Bajo de Masinloc. The Chinese call it Huangyan island) because unlike in the Spratlys, which is claimed wholly or partly by five countries and Taiwan, the dispute over the shoal, 124 nautical miles from the shores of Zambales, is only between the Philippines and China.

Since the Arbitral Tribunal does not decide on territorial conflicts, the case filed by the Philippines against China is about maritime rights.

The three basic issues of the Philippine case versus China are: The validity of China’s nine-dash lines; low tide elevations where China has built permanent structures should be declared as forming part of the Philippine Continental shelf; the waters outside the 12 nautical miles surrounding the Panatag Island (Scarborough shoal) should be declared as part of the Philippines 200 nautical mile Exclusive Economic Zone.
Supreme Court Senior Associate Justice Antonio T. Carpio, who has been doing lectures on the South China Sea conflict, explained “The Philippines is asking the tribunal if China’s 9-dashed lines can negate the Philippines’ 200 nautical mile Exclusive Economic Zone as guaranteed under UNCLOS. The Philippines is also asking the tribunal if certain rocks above water at high tide, like Scarborough Shoal, generate a 200 NM EEZ or only a 12 NM territorial sea. The Philippines is further asking the tribunal if China can appropriate low-tide elevations (LTEs), like Mischief Reef and Subi Reef, within the Philippines’ EEZ. These disputes involve the interpretation or application of the provisions of UNCLOS. “

Map from Senior Associate Justice Antonio T. Carpio's power point presentation

Map from Senior Associate Justice Antonio T. Carpio’s power point presentation

Supreme Court Associate Justice Francis Jardeleza, when he was still the solicitor general in February 2014, also explained to reporters: We are not asking the court to say who owns Panatag shoal. We are arguing that they are within our EEZ and therefore under the rules of UNCLOS we have exclusive rights to fish within that area. For example Mischief Reef, again it’s completely submerged. If it’s completely submerged therefore it is entitled to no rights at all. We are not saying, asking the tribunal to declare who owns the structures above the reefs. All were saying is declare that it being submerged it is entitled to no rights at all. So whatever rights the occupant has is only to the structure. It has no 12-mile territorial sea or even one meter territorial sea. So our claim is a very narrow one, land dominates the sea. This is not a case about land. This is a case about the maritime waters which is perfectly under UNCLOS.”

It’s classic brinkmanship. Even the Chinese are impressed.

In its position paper published Dec. 7, 2014, China said: “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.”

If the Arbitral Tribunal agrees with China’s observation that the case is really a territorial and sovereignty dispute, it would say it’s outside its jurisdiction. That’s the end of the case.

But if the Philippine legal panel headed by the current Solgen Florin Hilbay and Washington-based lawyer Paul Reichler, are able to convince the Arbitral Court that the Philippine case does not involve determination of sovereignty over disputed maritime features, the issue of jurisdiction is hurdled. On to the discussion of the merits of case.

That would already be an almost win.

What the Philippine U.N. case vs China is not

Ellen Leave a comment

Permanent Court of ArbitrationContrary to what many think that the Philippines case against China in the Arbitral Court of the United Nations Commission on the Law of the Sea (UNCLOS) will clarify who owns what or which of the reefs in the Spratlys, it won’t.

That’s because that is not in the scope of the U.N. Arbitral Tribunal where the Philippines filed the case. The UN Arbitral Tribunal only deals with the interpretation and application of UNCLOS.

It does not decide on sovereignty over disputed features in the sea.

Territorial disputes are the domain of the International Court of Justice or ICJ.

The reason the Philippines didn’t haul China to the ICJ was it requires the participation of all parties in a territorial dispute. China refuses to be a party to an ICJ case. It has always insisted that the best way to resolve disputes is bilateral negotiations.

The Philippines, on the other hand, insists that negotiations should be multilateral – among all claimants in the Spratlys.

The Philippines’ insistence on multilateral negotiations is puzzling in the case of Scarborough Shoal (also known as Panatag Shoal and Bajo de Masinloc. The Chinese call it Huangyan island) because unlike in the Spratlys, which is claimed wholly or partly by five countries and Taiwan, the dispute over the shoal, 124 nautical miles from the shores of Zambales, is only between the Philippines and China.

Since the Arbitral Tribunal does not decide on territorial conflicts, the case filed by the Philippines against China is about maritime rights.

The three basic issues of the Philippine case versus China are: The validity of China’s nine-dash lines; low tide elevations where China has built permanent structures should be declared as forming part of the Philippine Continental shelf; the waters outside the 12 nautical miles surrounding the Panatag Island (Scarborough shoal) should be declared as part of the Philippines 200 nautical mile Exclusive Economic Zone.
Supreme Court Senior Associate Justice Antonio T. Carpio, who has been doing lectures on the South China Sea conflict, explained “The Philippines is asking the tribunal if China’s 9-dashed lines can negate the Philippines’ 200 nautical mile Exclusive Economic Zone as guaranteed under UNCLOS. The Philippines is also asking the tribunal if certain rocks above water at high tide, like Scarborough Shoal, generate a 200 NM EEZ or only a 12 NM territorial sea. The Philippines is further asking the tribunal if China can appropriate low-tide elevations (LTEs), like Mischief Reef and Subi Reef, within the Philippines’ EEZ. These disputes involve the interpretation or application of the provisions of UNCLOS. “

Map from Senior Associate Justice Antonio T. Carpio's power point presentation

Map from Senior Associate Justice Antonio T. Carpio’s power point presentation

Supreme Court Associate Justice Francis Jardeleza, when he was still the solicitor general in February 2014, also explained to reporters: We are not asking the court to say who owns Panatag shoal. We are arguing that they are within our EEZ and therefore under the rules of UNCLOS we have exclusive rights to fish within that area. For example Mischief Reef, again it’s completely submerged. If it’s completely submerged therefore it is entitled to no rights at all. We are not saying, asking the tribunal to declare who owns the structures above the reefs. All were saying is declare that it being submerged it is entitled to no rights at all. So whatever rights the occupant has is only to the structure. It has no 12-mile territorial sea or even one meter territorial sea. So our claim is a very narrow one, land dominates the sea. This is not a case about land. This is a case about the maritime waters which is perfectly under UNCLOS.”

It’s classic brinkmanship. Even the Chinese are impressed.

In its position paper published Dec. 7, 2014, China said: “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.”

If the Arbitral Tribunal agrees with China’s observation that the case is really a territorial and sovereignty dispute, it would say it’s outside its jurisdiction. That’s the end of the case.

But if the Philippine legal panel headed by the current Solgen Florin Hilbay and Washington-based lawyer Paul Reichler, are able to convince the Arbitral Court that the Philippine case does not involve determination of sovereignty over disputed maritime features, the issue of jurisdiction is hurdled. On to the discussion of the merits of case.

That would already be an almost win.

PH and China dispute to continue despite U.N. Tribunal case

Ellen Leave a comment

By Ellen T Tordesillas and Tessa Jamandre, VERA Files

Permanent Court of Arbitration, The Hague. The Arbitral Tribunal starts hearing today the case filed by the Philippines vs China in this building.

Permanent Court of Arbitration, The Hague. The Arbitral Tribunal starts hearing today the case filed by the Philippines vs China in this building.

Despite the presence of a high-level Philippine team at the hearing of the Philippines’ case against China before the Arbitral Tribunal of the United Nations Convention on the Law of the Sea (UNCLOS) this week, the issue of who owns the contested islands in the South China Sea will remain unresolved.

That’s because the Philippine team won’t be arguing its territorial claims, which are not under the jurisdiction of the Arbitral Tribunal in The Hague in the Netherlands.

“We are very confident that we can convince the court that this is not about ownership of land,” said former solicitor general now Supreme Court justice Francis Jardeleza, who is part of the Philippine team.

Instead, the Philippines merely wants the Tribunal, which interprets UNCLOS, to invalidate China’s 9-dash line claim over the South China Sea.

Territorial claims are the jurisdiction of another body, the International Court of Justice (ICJ), and the ICJ only entertains cases if all parties in the dispute participate. China has refused to do so.

But although the Philippines is not arguing about who owns what in the South China Sea, its arguments have been misconstrued as such. Jardeleza, in fact, said, “For example, we’re not asking the court to say who owns Panatag shoal. We are arguing that they are within our EEZ and therefore under the rules of UNCLOS we have exclusive rights to fish within that area.”

It is this posturing by the Philippines that China calls sly and cunning. Although saying it is not making a territorial claim before the Tribunal, the Philippines’ words practically establish ownership of islands and areas, the Chinese government said.

Map from Senior Associate Justice Antonio T. Carpio's power point presentation

Map from Senior Associate Justice Antonio T. Carpio’s power point presentation

In its position paper submitted in December 2014, China said, “The Philippines has cunningly packaged its case in the present form.”

“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’s position paper adds.

The hearing at The Hague this week, however, comes at time of heightened tensions between the two countries, with China speeding up the reclamation of disputed islands in the South China Sea, even building on those the Philippines claims as part of its territory.

The top-level team of Philippine government officials preparing to face the Tribunal is composed of two Supreme Court justices, the leaders of Congress, and the secretaries of foreign affairs and justice, as well as the executive secretary.

The team includes Senior Associate Justice Antonio T. Carpio, who has been delivering lectures on the South China Sea conflict, and Jardeleza, who was solicitor general when the Philippines first submitted its memorandum to Tribunal on March 30, 2014. A memorandum is called a memorial in international law.

Also in the team are Senate president Franklin Drilon, House speaker Feliciano Belmonte, foreign affairs secretary Albert del Rosario, justice secretary Leila de Lima, and executive secretary Paquito Ochoa.

Leading the Philippine legal team are solicitor general Florin Hilbay and Paul Reichler, a Washington-based lawyer, who are expected to tell the Tribunal that the Philippines’ arbitration case against China is solely a maritime dispute and does not involve any territorial conflict.

The Philippines, in all its submissions to the Arbitral Tribunal, emphasized that it does not seek a determination on which party enjoys sovereignty over any of the insular features claimed by both but has confined itself to raising claims that require the interpretation or application of UNCLOS.

The Philippine has asked the Court not to “bifurcate” or divide in two parts the jurisdiction aspect and the merits of the case.

“There’s so much tactical advantage to that procedure because we are very strong on the merits and by discussing the merits more and more you gain an advantage hoping to convince the tribunal that they should take the case and rule that they have jurisdiction,” Jardeleza said.

Last April, the Permanent Court of Arbitration (PCA) that acts as a registry in the UNCLOS dispute settlement procedure, announced the hearing on the Arbitral Tribunal’s jurisdiction in the Philippine case versus China would be held July 7 to 13.

If the team is unable to convince the Tribunal, “that’s the end,” said Foreign Affairs Spokesperson Charles Jose.

But if the Tribunal rules it has jurisdiction, “It’s almost an 80 per cent chance of winning the case,” said lawyer Harry Roque, director of the University of the Philippines Law Center’s Institute of international Legal Studies.

China’s Dec. 7, 2014 position paper states: “The Philippines’ claims is in essence one of territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention. Consequently, the Arbitral Tribunal has no jurisdiction over the claims of the Philippines for arbitration.”

Roque said the UNCLOS dispute settlement procedure is limited to “interpretation and application of the UNCLOS.”

“It is not involved in matters of sovereignty,” he said.

Carpio explained in one of his lectures on the South China Sea conflict, “The Philippines is asking the tribunal if China’s 9-dash lines can negate the Philippines’ 200 nautical mile exclusive economic zone as guaranteed under UNCLOS.”

“The Philippines is also asking the tribunal if certain rocks above water at high tide, like Scarborough Shoal, generate a 200 NM EEZ or only a 12 NM territorial sea. The Philippines is further asking the tribunal if China can appropriate low-tide elevations (LTEs), like Mischief Reef and Subi Reef, within the Philippines’ EEZ. These disputes involve the interpretation or application of the provisions of UNCLOS,” Carpio added.

Jardeleza said, “Our claim is a very narrow one, land dominates the sea. This is not a case about land; this is a case about the maritime waters which is perfectly under UNCLOS.”

The PH legal team is expected to justify its decision to seek compulsory dispute settlement after it has exhausted the negotiation tack, both bilateral and multilateral as required by UNCLOS.

China insisted in its position paper that “disputes between the two States shall be resolved through negotiations and there shall be no recourse to arbitration or other compulsory procedures.”

The team is also expected to tell the Tribunal that talks between the Association of Southeast Asian Nations (ASEAN) and China on the Code of Conduct on the South China Sea is inadequate, as its objective is to promote peace and stability in the region by coming up with a code on how claimants should conduct themselves pending resolution of the dispute.

Aside from Hilbay and Reichler, other members of the Philippine legal team are British law professors Philippe Sands and Alan Boyle and Bernard Oxman from the University of Miami’s Law school.

The five-member Arbitral Tribunal is chaired by Judge Thomas A. Mensah of Ghana. The other Members are Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of Poland, Professor Alfred Soons of the Netherlands, and Judge Rüdiger Wolfrum of Germany.

(VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”)

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

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

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?