Monthly Archives: July 2016

PH complied with UNCLOS to win arbitration

Now the country needs quiet negotiations in invoking rule of law THE Philippines won in almost all its submissions against China in the South China Sea award by the UN Convention on the Law of the Sea (UNLOS) Arbitration Tribunal, including the main issues that compelled the Philippines to urgently file the arbitration complaint, namely: that China had prohibited Philippine fishermen from exercising their historic rights to fish in Scarborough Shoal, and that China had unlawfully interfered with Philippine petroleum exploration in the Reed Bank which is within the exclusive economic zone (EEZ) of the Philippines. The Tribunal ruled that the decision is final and binding. The ruling, however, declined the Philippines’ submission that, following the decision, the Tribunal should issue a Declaration that China shall respect the rights and freedoms of the Philippines and comply with its duties under the Convention. The Tribunal “noted that both the Philippines and China have repeatedly accepted that the Convention and general obligations of good faith define and regulate their conduct.” The Tribunal considered that “the root of the disputes at issue in this arbitration lies in fundamentally different understandings of their respective rights under the Convention in the waters of the South China Sea.” The Tribunal recalled that it is a fundamental principle of international law that bad faith is not presumed, noting that Article 11 of Annex VII provides that the “award … shall be complied with by the parties to the dispute.” Even inside the Philippines, there was difference of opinion on the issue of historic rights and the effect of the UNCLOS provision on these rights. A group of Philippine lawyers opposed the enactment of Republic Act 9522 defining the archipelagic baselines of the Philippines. This law was passed, on the recommendation of the Department of Foreign Affairs, to ensure that Philippine law conforms with UNCLOS, which the Philippines is bound to observe under the principle of pacta sunt servanda as a party to this Convention. This was necessary to enable the Philippines to come to the UNCLOS tribunals with clean hands in case of need to protect its rights under the Convention. The petition before the Philippine Supreme Court to declare RA 9522 unconstitutional was based on the Philippines’ historic rights over waters passed by Spain to the United States. The petition alleged that the archipelagic baselines defined in the law reduced Philippine maritime territory in violation of Article 1 of the 1987 Philippine Constitution. The petition argued that RA 9522 “dismembers a large portion of the Philippine territory because it discards pre-UNCLOS definition of national territory under the Treaty of Paris and related treaties, successively encoded under the 1935, 1973 and 1987 Constitutions. PH complied with UNCLOS to win arbitration

British MP in China propaganda video ‘deeply concerned’

LONDON: A British MP has complained about appearing in a video promoting Beijing’s claims in the disputed South China Sea, saying she was “deeply concerned” that her words had been misrepresented. Catherine West, a foreign affairs spokeswoman from the main opposition Labor Party specializing in the Asia-Pacific region, is briefly quoted in the video. The video shows white-sand beaches and crystal-blue waters, but conveniently omits images of the artificial islands Beijing has built in the strategically vital waters also claimed by the Philippines and Vietnam, among others. It includes clips of talking heads who support China’s claims to most of the waters and seem to downplay the international tribunal that rejected the legal basis for China’s assertions. West is featured as one of the speakers, saying: “I think talks are crucial and that’s why we have to be careful. We need to resolve something very locally and have a grown-up approach to dialogue.” Her comments appear to support China’s position that the dispute should be settled through direct talks between claimants, not through the international legal system. But West said her words were used out of context. The three-minute video is running about six hours a day on a big screen in New York’s Times Square — one of the world’s busiest tourist destinations. It started playing on July 23 and will be shown 120 times a day until August 3, according to China Daily. The video is “not a reflection of my record or views,” West said on Twitter, adding she was “deeply concerned by this misrepresentation” and that she had “consistently voiced concern over militarization of (the) South China Sea by China.” Beijing refused to participate in the case that was brought by the Philippines to the international tribunal in the Hague and says it will not respect its judgement. British MP in China propaganda video ‘deeply concerned’

Is It an Island or a Rock? Ruling Could Cost U.S. a Huge Swath of Ocean

The U.S. and other coastal nations could lose millions of square nautical miles of ocean that are now in their exclusive economic zones. The loss would be an indirect result of an arbitration panel’s ruling on China’s dispute with the Philippines in the South China Sea. Largely overlooked in the tribunal’s July 12 decision was a strict interpretation of which dry land is entitled to a 200-nautical-mile exclusive economic zone—the surrounding ocean where a nation has sole rights to fish, drill for oil, and search for minerals. While not a legal precedent, the 479-page ruling could influence other judges and arbitrators because of its rigorous argument. “These arbitrators knew that this case was being watched around the world,” says Paul Reichler, a partner in law firm Foley Hoag and lead counsel for the Philippines. “They wanted it to be as close to perfect as possible.” http://www.bloomberg.com/news/features/2016-07-28/u-s-japan-and-other-nations-could-lose-exclusive-economic-zones

The South China Sea ruling and China’s Sinocentrism

The bilateral relationship between South Korea and China has advanced rapidly since the establishment of diplomatic ties in 1992. But the two nations are still sharply divided on many matters. A case in point is how the two nations see the July 12th decision of the Permanent Court of Arbitration (PCA) on the South China Sea dispute. China has expressed strong resistance against the ruling that there is no legal ground on China’s “nine-dash line” maritime claim. On the other hand, South Korean Foreign Ministry indicated support for the ruling by announcing that there was “demilitarization pledge in the South China Sea, a resolution based on international code of conduct.” This is in line with the position of the United States and Japan. The essential points of the ruling are: there is no legal ground to acknowledge that the “nine- dash line” is part of Chinese territory; not a single island within the Spratly Islands has a 200-nautical mile exclusive economic zone; and China has violated the sovereignty of the Philippines by occupying the Scarborough Shoal. Meanwhile, China’s protest against the PCA judgement is based on arguments that the court has no jurisdiction over the “South China Sea territory which has belonged to China for 2,000 years”, and that four of the five judges were selected by the head of the International Tribunal for the Law of the Sea, who is rooted in Japan (two judges were recommended by the Philippines). However, the court does have the jurisdiction over the sea in accordance with Article 121 under the Law of the Sea Convention, and the judges were appointed by the head of ITLOS only because China had given up its rights to do so, according to the appendix 7 of the maritime law. Lu Kang, the spokesman of the Chinese Foreign Ministry condemned the U.S., who is not a member of the United Nations Convention on the Law of the Sea (UNCLOS). The PCA decision is deemed to have largely contributed to solidifying a maritime order and advancing the international law in that it has clarified the definitions for a rock and an island in the law. The “nine-dash line” is a legacy of the Han Dynasty, which declared “there is no such land that does not belong to China,” and is in violation of the international maritime law. The Japanese government and major media outlets including the Asahi Shimbun altogether championed the judgement despite knowing that it could act in disadvantage of Japan’s southernmost island of Okinotori. http://english.donga.com/List/3/all/26/588399/1

Could Law Save the South China Sea From Disaster?

Printer-friendly version The ruling by the Annex VII Tribunal on the South China Sea maritime dispute between the Philippines and China lays down an unprecedented legal benchmark for disputes in the region. The unanimous decision of the five-member Tribunal addresses in detail all of the claims made by the Philippines. Only one claim was dismissed on jurisdictional grounds. In short, the Tribunal found that China’s nine-dash line had no foundation under the United Nations Convention on the Law of the Sea (UNCLOS), and that China has supported activities that infringe on the Philippines’ rights to fish stocks and preservation of the marine environment. Another significant ruling was made regarding UNCLOS Article 121, which states that any island that can sustain human habitation or economic life is entitled to claim a 200 nautical mile exclusive economic zone (EEZ) and continental shelf. According to the Tribunal, none of the contested maritime features in the South China Sea — including the Spratly Islands and the Scarborough Shoals — are islands under the conditions of Article 121. The Award did not make pronouncements on the numerous territorial disputes that exist with respect to islands, rocks, reefs and shoals as these questions were beyond the jurisdictional reach of the Tribunal. Still China has hit back, mounting a sustained political and legal campaign seeking to discredit the Tribunal and its findings. China is arguing that the 2002 ASEAN–China Declaration on the Conduct of the Parties in the South China Sea (DOC) is a binding agreement that establishes a framework for the resolution of South China Sea disputes and accordingly trumps UNCLOS. China has also argued that its 2006 Declaration made under Article 298 of UNCLOS revoked the jurisdiction of the Tribunal over disputes regarding maritime boundaries, historic titles and military activities. The Tribunal only found in China’s favor with respect to the military activities exemption, which ultimately did not bar the Tribunal from judging the majority of the Philippines claims. How then does the decision reshape the legal discourse in the South China Sea and what are the options for the major regional players? First, by finding that the nine-dash line has no legal basis under UNCLOS, the decision delegitimizes China’s foundational claim to maritime rights over much of the South China Sea. As a result, the surrounding littoral states should be reassured that China’s continued reliance upon the nine-dash line to assert a range of maritime rights — including regulating foreign fishing vessels — is now fundamentally compromised. http://nationalinterest.org/blog/the-buzz/could-law-save-the-south-china-sea-disaster-17123

China tries to cover sun with palm of hand

Two weeks after the arbitral tribunal of the United Nations Convention of the Law of the Sea issued its award to the Philippines, China continues to seek to undermine the legitimacy on the tribunal, making charges bordering on the slanderous against the judges concerned. While affirming “China’s non-acceptance and non-recognition of the so-called award,” the Chinese government ischallenging the standing of the tribunal itself. A Chinese foreign ministry spokesman, Lu Kang,has stated of the tribunal: “It is not an international arbitration court. It is an illegal setting-up assembled at the unilateral request of the then Philippine government.” That is to say, China considers the tribunal itself to be illegal. Hence, not heeding its ruling was the only right way to uphold the international legal system. http://www.koreatimes.co.kr/www/news/opinon/2016/07/197_210584.html

UN PCA ruling helps disputants worldwide

ANALYSTS have criticized the Association of Southeast Asian Nations (Asean) for doing China’s bidding, which was championed by Cambodia, China’s agent country in Asean, to disregard the UNCLOS Tribunal’s landmark ruling granting the Philippine petition against China’s takeover of the Philippine territories in the South China/West Philippine Sea and ordering China to stop its aggressive activities. Some of the analysts also warned that Asean’s “watered-down” statement at the end of the group’s foreign ministers summit in Cambodia “could diminish the grouping’s already waning clout.” The Japan Times report by Jesse Johnson said, “The 10-member Association of Southeast Asian Nations (Asean) avoided mentioning in its annual foreign ministers’ communiqué the July 12 ruling by the UN-backed Permanent Court of Arbitration, instead offering the equivalent of a slap on the wrist to China, the group’s biggest trading partner, over its moves in the disputed waters.” The report quoted the Director of the Center for Strategic Studies at Victoria University of Wellington, David Capie, who said, “The choice was between a weak statement or no statement. This isn’t the first time Asean has avoided mentioning the elephant in the room in order to get consensus. But it underscores Asean’s weakness and raises questions about its relevance.” UN PCA ruling helps disputants worldwide

Former President Ramos’ mission

OF the many issues ruled upon by the Permanent Court of Arbitration (PCA) in The Hague, two are of utmost importance to the Philippines – our oil exploration at Recto Bank and fishing by Zambales fishermen at Scarborough Shoal or Bajo de Masinloc. There was a finding of destruction of reefs in some islands in the South China Sea, which was most welcomed by the world’s environmentalists. The ruling that the artificial islands built in some of the reefs were not entitled to their own 200-mile Exclusive Economic Zone (EEZ) means they cannot be used to claim sovereign rights to exploit natural resources. And the ruling that there is no legal basis for the Nine-Dash Line with which China claims most of the South China Sea upholds freedom of navigation in the entire sea through which commercial vessels of so many countries pass every day. But it is the Recto Bank and the Scarborough Shoal that concerns us most. Recto Bank, also known as Reed Bank, is off the west coast of Palawan and east of the northern islands of the Spratlys. A group led by Philex Petroleum was conducting exploration for oil and gas at Recto Bank in 2012 when everything was put on hold by the Department of Energy due to a dispute with the China National Offshore Oil Corporation (CNOOC) over exploration rights earlier granted by the previous Arroyo administration. Chinese naval vessels started appearing in the area in the first year of the Aquino administration and, on orders from the Department of Energy, the Philex group decided to back off. Its offer of an arrangement with CNOOC was turned down and no further exploration activity has been held since then. In his State-of-the-Nation Address in 2011, President Aquino mentioned the Recto Bank as he announced moves to enhance the nation’s security. He announced the coming of the country’s first Hamilton-class cutter, with more vessels in the future, the acquisition of more helicopters, patrol craft, and weapons. He said: “Now our message to the world is clear: What is ours is ours; setting foot on Recto Bank is no different from setting foot on Recto Avenue.” It was at this 2011 SONA that he first announced that the government was studying the possibility of elevating the case on the South China Sea to the International Tribunal for the Law of the Sea, “to make certain that all nations involved approach the dispute with calm and forbearance.” Read more at http://tempo.com.ph/2016/07/28/former-president-ramos-mission/#BxIgJb2FlycbDtXz.99

China’s ‘might makes right’ strategy vs. international law

BERLIN – China has been expanding its frontiers ever since it came under communist rule in 1949. Yet no country dared to haul it before an international tribunal till the Philippines in 2013 invoked the dispute-settlement mechanism of the United Nations Convention on the Law of the Sea (UNCLOS), setting in motion the arbitration proceedings that this week resulted in the rebuke of China’s claims in the South China Sea. The trigger for Manila approaching the International Tribunal for the Law of the Sea (ITLOS) was China’s capture in 2012 of Scarborough Shoal, located close to the Philippines but hundreds of miles from China’s coast. ITLOS then set up a five-member tribunal under The Hague-based Permanent Court of Arbitration (PCA) to hear the case. Beijing tried unsuccessfully to persuade the tribunal that it had no jurisdiction to hear the case. Last October, the tribunal said that it was “properly constituted” under UNCLOS, that the Philippines was within its rights in filing the case, and that China’s nonparticipation in the proceedings was immaterial. Now in its final verdict delivered unanimously, the tribunal has dismissed Beijing’s claim that it has historic rights to much of the South China Sea and ruled that China was in violation of international law on multiple counts, including damaging the marine environment through its island-building spree and interfering with the rights of others. The panel effectively declared as illegitimate China’s South China Sea boundary (the so-called nine-dash line). It also held that China’s strategy of creating artificial islands and claiming sovereignty over them and their surrounding waters had no legal basis. In less than three years, China has built seven islands and militarized several of them in an attempt to annex a strategically crucial corridor through which half of the world’s annual merchant fleet tonnage passes. In the absence of a mechanism to enforce the ruling, Beijing, however, was quick to pour scorn on the verdict and declare that it would ignore a legally binding ruling. China’s disdain for the ruling shows that international law matters to it only when it can serve its own interests. Otherwise, international rules are bendable and expendable. To be sure, China has never pretended that it believes in a rules-order order. This was apparent from its aggressive steps to enforce its sovereignty claims in the South China Sea — actions that the tribunal has now ruled violate international law. http://www.japantimes.co.jp/opinion/2016/07/14/commentary/world-commentary/chinas-might-makes-right-strategy-vs-international-law/#.V5oqtZN95sN