Carpio: 2016 Hague ruling enforced by US, other powers

THE WORLD’S naval powers are doing the “heavy lifting” in enforcing the arbitral tribunal award on the South China Sea dispute two years since its ruling, without the support of its primary beneficiary the Philippines, Acting Chief Justice Antonio T. Carpio said on Monday.

In his speech at the Kasarinlan Foreign Policy Forum, Mr. Carpio said the navies and the air forces of countries such as the United States, United Kingdom, France, Australia, Canada, India and Japan have been sailing and have been flying in the South China Sea to assert freedom of navigation and overflight.

“These naval and air operations enforce the part of the Award affirming the existence of high seas and EEZs (exclusive economic zone) in the South China Sea. This is the necessary consequence of the naval and air operations of the world’s naval powers in the South China Sea,” he said.

“Fortunately for the Filipino people, there is clearly enforcement of a core part of the award by the world’s naval powers, even if there is inexplicable reluctance on the part of the Duterte administration to enforce the award. The heavy lifting in the enforcement of the award is being done by the world’s naval powers with practically no support whatsoever from the Philippines, the state that overwhelmingly won the Award and the state that stands to benefit immensely from the enforcement of the award,” he added.

Mr. Carpio, who was part of the legal team in the arbitration case, made the statement three days before the arbitral tribunal award on the South China Sea dispute between the Philippines and China marks its second anniversary on Thursday.

On July 12, 2016, the ruling of the Permanent Court of Arbitration (PCA) in the Hague, Netherlands, invalidated China’s nine-dash line argument claim over the South China Sea. Some features in the region were also declared part of the Philippines’ EEZ.

Mr. Carpio appealed to the public “to preserve and protect the Award so the next administration can enforce the award” since the Duterte administration has chosen to set it aside. He said the award had expanded the high seas in the region, where its resources became part of the “global commons, belonging to all mankind,” contrary the China’s exclusive claim.

Mr. Carpio also countered the reasons cited by those who believed the Philippines should not take action in enforcing the award, including the statements of President Rodrigo R. Duterte citing war as a consequence of confronting China on the maritime issue.

“War is not an option and has never been an option. Our Constitution prohibits war as an instrument of national policy, which means it is unconstitutional to go to war to enforce the award,” he said, noting that war also violates international laws.

He said arbitration was a peaceful means of settling disputes as was expressly provided by the UN Convention on the Law of the Sea (UNCLOS).

He also advised against the Philippines distancing itself from the South China Sea dispute.
“Those who hold this view are totally blind to China’s blatant physical seizure of Philippine maritime zones and territory in the West Philippine Sea…. The core dispute in the South China Sea is China’s appropriation of the high seas which belong to all mankind, and more importantly, China’s seizure of the EEZs of the Philippines, Vietnam, Malaysia, Brunei and Indonesia. If today China abandons its illegal appropriation of the high seas and stops its unlawful seizure of the EEZs of these coastal states, there will be no simmering dispute in the South China Sea,” he said.

In a related development, senators in the minority bloc filed Senate Resolution No. 779 on Monday seeking an investigation into the successive “technical stops” of Chinese military aircraft in Davao City’s airport, noting the lack of agreement between the Philippines and China over the use of the airport for the Chinese military.

“The successive occurrence of Chinese military planes making technical stops in Davao City raises the question of whether the Constitution’s proscription against the presence of foreign troops in the country is being violated by the Duterte administration,” the senators said in a statement.

The senators also filed another resolution, Senate Resolution No. 780, calling for an investigation into the Duterte administration’s plan to air Filipino-dubbed Chinese shows and movies in state-run People’s Television Network (PTV 4), raising concerns on the danger of spreading Chinese propaganda in state-run media.

source:  Businessworld

President’s stand on sea row needs review – Carpio

The recent Social Weather Stations poll showing that four of five Filipinos rebuffed the government’s approach to the territorial dispute with China proved that President Rodrigo Duterte’s policy was contrary to the public’s position, acting Chief Justice Antonio Carpio said on Sunday.

Carpio, who champions the country’s sovereignty over the West Philippine Sea — waters within the Philippines’ 370-kilometer exclusive economic zone (EEZ) in the South China Sea — said the latest poll also signaled the need for the Duterte administration to rethink its stand on the dispute.

“The Filipino people understand the situation that . . . we have to protect our sovereign rights and we should not allow another country to seize them. They are expressing it in the surveys,” Carpio told the Inquirer in an interview.

‘Overwhelming majority’
“I think the Duterte administration is going one way while the majority of the people want to go another way. So the Duterte administration is going against the wishes of the overwhelming majority of the people,” he said.

The poll, taken from June 27 to 30, also showed that 81 percent of Filipinos believed it was “not right” for the government to allow China’s militarization of Philippine-claimed reefs in the Spratly archipelago.

According to Carpio, the results of the survey were a welcome development, as they were released just two days after the country marked the second anniversary of its victory over China in the Permanent Court of Arbitration in The Hague.

In that ruling, handed down two weeks after the President came to office in 2016, the court declared China’s claim to nearly all of the South China Sea invalid under international law. It also found China violated the Philippines’ sovereign rights to fish and explore for resources in the West Philippine Sea.
But instead of asking help from the international community to enforce the ruling, the President set it aside in exchange for aid and investment from China.

Carpio said continued education would further help raise the Filipinos’ awareness of the importance of the arbitral ruling.

“The survey says the people want to enforce the ruling. It’s very simple. While the President doesn’t want to enforce the ruling, 80 percent of Filipinos want it to be fully enforced,” he added.

‘Protect what is ours’
“It’s just logical and common sense that we protect what is ours. The leaders of the country should protect them as the Constitution says that the state should protect its marine wealth in its EEZ,” said Carpio, a member of the legal team that won the ruling for the Philippines.

“The Constitution says the military is the protector of our EEZ because they are the protector of the state and its territorial integrity. The duty falls on them and the President being the Commander in Chief of the Armed Forces,” he added.

As he had repeatedly said in public speeches, Carpio reiterated that there were “simple ways” for the Philippines to invoke the arbitral decision without necessarily bringing Beijing into the picture.
For one, Carpio said the Duterte administration could enter into a sea boundary agreement with both Malaysia and Vietnam.

It could likewise seek the extension of its continental shelf off the coast of Luzon, he said.

Freedom of navigation
“We should also welcome [these] freedom of navigation [operations] by foreign naval powers. This really enforces the arbitral ruling in the sense that these foreign naval powers are [moving freely on] the the high seas,” Carpio said.

As for the hanging by activists on Thursday of tarpaulin signs on pedestrian overpasses in Metro Manila that proclaimed the Philippines a province of China, Carpio said it was more important to “look at the more substantive matter” of the issue.

“What are we doing now to protect our sovereign rights? That’s the question we should be asking [ourselves],” he said.

“For me, it just highlights that people are already making jokes about the Philippines becoming a province of China,” he added.

source:  Philippine Daily Inquirer

‘Code of Conduct framework not instrument to settle territorial disputes’

Southeast Asian countries and China have agreed that the framework for the Code of Conduct(COC) of Parties in the South China Sea was “not an instrument to settle territorial disputes or maritime delimitation issues.”

This developed even after the Association of Southeast Asian Nations (Asean) and the Chinese government both sought to craft a “legally-binding” COC that would address sea dispute.

A draft framework, which would be endorsed by Asean and China foreign ministers on August 6 in Manila, would be “rules-based,” containing “a set of norms to guide the conduct of parties and promote maritime cooperation in the South China Sea.”

According to documents obtained by INQUIRER.net, the parties agreed that the framework must “promote mutual trust, cooperation and confidence, prevent incidents, manage incidents should they occur and create a favorable environment for the peaceful resolution of disputes.”

They also decided to maintain “respect for each other’s independence, sovereignty and territorial integrity in accordance with international law, and the principle of non-interference in the internal affairs of other states.”

The draft framework also highlights the need for “full and effective implementation of the DOC (declaration on the code of conduct of parties in the South China Sea).”
The DOC, signed by both parties in 2002, mandates self-restraint and non-militarization in the disputed waters.

The framework was finalized during the senior officials meeting in Guiyang, China, last May.

During the 30^th Association of Southeast Asian Nations (Asean) Summit last April, Asean member states chose not to mention China’s reclamation activities and apparent militarization in the disputed territories.

Tensions between the Philippines and China erupted after Beijing’s expansive claims over the South China Sea and full scale reclamation activities in the contested waters.
The South China Sea issue also has strained the Philippines’ relations with China after Beijing claimed almost all parts of the minerals-rich region.

But since President Rodrigo Duterte assumed office in June 30 last year, he has maintained “a soft approach” to China as he favored bilateral talks to settle the South China Sea disputes.

The Philippines won a landmark decision at the United Nations-backed arbitral tribunal but China has repeatedly rejected the decision.

In May, the Philippines and China held bilateral talks to discuss “sensitive” issues over the disputed sea.

source:  Philippine Daily Inquirer

Taking the Next Step on the Code of Conduct

Just over a year ago, the Permanent Court of Arbitration in The Hague ruled that China’s vaunted “nine-dash line” and subsequent historic claims over much of South China Sea had no basis in international law, in particular the United Nations Convention on the Law of the Sea (UNCLOS). The decisive legal victory for the Philippines, the first state to challenge Beijing in such a public forum, marked an important milestone in a protracted territorial dispute.

HIGHLIGHT THE LAWAS THE BASIS OF OUR DIPLOMACY
As our country takes its next steps in protecting its interests in the West Philippine Sea, we should resume our leadership in fortifying international law. As this year’s chair of ASEAN, we have an opportunity to steer the discussions on the Code of Conduct. In our view, the Code of Conduct must reaffirm the Arbitral Tribunal’s Award to the Philippines as a guide for all our countries’ behavior in the South China Sea. In this context, bears emphasis that The Hague ruling affirmed that maritime entitlements should be governed by UNCLOS and that any alleged right not anchored on UNCLOS should be denied. The conclusion of a legally binding Code of Conduct along these lines must be a priority.

Moreover, the Philippines should continue to actively present its case as a legal precedent for ASEAN claimant-states to further clarify their respective maritime entitlements and boundaries as well as align their respective domestic policies with UNCLOS provisions. Ultimately, the award should not be seen as mere beneficial to the interest of the Philippines, but to all claimants in the South China Sea with common interests in freedom of navigation for trade and other legitimate activities.

At the end of the day, we believe that all the claimants should work toward resolving their disputes peacefully and amicably by making full use of the legal processes available to them, in accordance with the milestones that the region has reached, such as in the 2002 Declaration on the Conduct of Parties in the South China Sea and, of course, the Arbitral Tribunal’s ruling.

CAUTION SHOULD NOT PARALYZE US
Since the ruling was released, caution has replaced the optimism that had accompanied the decision in Manila. While the ruling indeed set a key precedent in terms of clarifying the country’s rights under the purview of international law, some say President Rodrigo Duterte’s pursuit of a so-called “independent foreign policy” may imperil -- if not completely compromise -- the potential value of the decision.

Even so, the administration’s choice to normalize diplomatic relations with Beijing while cooling ties with its traditional ally the United States has effectively put the ruling on the back burner. Under the chairmanship of the Philippines, the Association of Southeast Asian Nations (ASEAN) was likewise lukewarm in terms of taking China to task over its militarization of the South China Sea.

Whether this direction will bear fruit eventually is a matter of conjecture, but in the intervening months since the ruling, Chinese military buildup in the disputed waters as well as harassment of Filipino fishermen by Chinese vessels didn’t abate. Recently, a report from the Asia Maritime Transparency Initiative revealed that new missile shelters and radar and communication facilities are being installed in Fiery Cross and Mischief and Subi Reefs.

There is a sense of fragile peace in the region, a peace that is undermined by what many see as China’s willful disregard and flouting of international law. A year after the ruling, perhaps it is high time to revisit and reassess the Philippines’ policy position in light of China’s actions.

Facing continued antagonism from Beijing, the country should adopt a strategy akin to Japan’s so-called multilayered security cooperation by leading the way in upholding international order.

All diplomatic avenues must be exhausted that are in promoting the rule of international law. We must protest what is unlawful, coercive, and contrary to the correct principles that govern relations between states. We should be ready to appeal to the UN General Assembly in moving towards peace, not war. Ultimately, in taking the right strategy, our government can only enhance its standing among our peers and ensure its legacy for the generations that will succeed us.

Victor Andres “Dindo” C. Manhit is the founder and managing director of the Stratbase Group and president of its policy think tank, Albert del Rosario Institute for Strategic and International Studies (ADRi). Prof. Manhit is a former chair and retired associate professor of Political Science of De La Salle University. He has authored numerous papers on governance, political, and electoral reforms.

source:  Businessworld

Commentary: Trojan Horse in the West Philippine Sea

By: Florin T. Hilbay - @inquirerdotnet

In the recently concluded Belt and Road Forum in Beijing, the special envoy for intercultural dialogue Jose de Venecia Jr. revived proposals for joint oil and gas exploration in the West Philippine Sea, citing the joint seismic marine undertaking among the Philippines, China and Vietnam during the term of President Gloria Arroyo as a model for cooperation. He said “[i]t is obvious as members of the Asean family that today, with China, we must find ways and means to jointly develop the area’s hydrocarbon potential to help lessen our common dependence on distant petroleum sources in the Middle East.”

The government must exercise utmost caution and tread very carefully on this matter, for the protection of the national interest.

Prior to Philippines v. China, the idea of joint exploration and development in the WPS may have had some plausible justification on the ground that the rights of the Philippines and China in our exclusive economic zone were theoretically contested. After that decision, such plausible deniability is no longer tenable. Simply put, joint exploration and development are incompatible with the Constitution.

The arbitral award declared that the Philippines does not share with China any overlapping entitlements. In the language of our Constitution, areas in the WPS believed to contain oil and gas, such as Reed Bank, are part of our “marine wealth” and the State must “reserve [their] use and enjoyment exclusively to Filipino citizens.” Because they “are owned by the State,” their “exploration, development, and utilization … shall be under the full control and supervision of the State.”

What this means is that any joint agreement to explore, develop, and utilize our marine wealth with China is null and void. Such agreements effectively impair the authority of the State to control and supervise the use and enjoyment of our marine wealth through its institutional machineries—the executive, legislative and judicial branches. They also materially diminish the rights of Filipinos to the benefits arising from such resources. We cannot, for example, compel China to submit to the Commission on Audit and/or pay income or franchise taxes for its share in the income—forms of control sovereigns traditionally impose.

The most insidious aspect of a joint agreement with China is the fact that the basis of such economic sharing is the recognition of China’s sovereign rights over our exclusive economic zone—a culpable violation of the Constitution and an implied waiver of our victory at The Hague.

The Duterte administration must realize that whatever economic gains there may be from any joint agreement with China over the WPS can only be made at the expense of giving away our sovereign rights over the area. Joint agreements are a Trojan Horse against our country’s continuing efforts to effectively assert the rights we have won at The Hague.

Lest anyone forget, China is bound by that judgment because it is a party to the UN Convention on the Law of the Sea. We must construe its present refusal to abide by that judgment as a strategic effort on its part to buy time as it attempts to secure a waiver of judgment—express or implied—from any post-Aquino administration.

In response to criticisms that President Duterte has been timid on the matter of enforcing the Philippines’ rights against China, he recently revealed that he had previously informed Xi Jinping of his intention to drill oil in our EEZ, but was threatened with war. He seems to imply, in the balance of his remarks, that he does not intend to go to war with China over oil.

This is, of course, well and good, insofar as practical politics goes. But one also hopes that such a pacifist line is not later transformed into a pragmatic justification for entering into an unconstitutional and inequitable joint agreement over the WPS that simultaneously waives our sovereign rights.

Florin T. Hilbay is a former solicitor general. He was agent to the Republic in Philippines v. China.

In first under Trump, U.S. warship challenges Beijing's claims in South China Sea

The Arleigh Burke-class guided-missile destroyer USS Dewey prepares for a replenishment-at-sea in the South China Sea May 19, 2017. Picture taken May 19, 2017. Kryzentia Weiermann/Courtesy U.S. Navy/Handout via REUTERS

By Idrees Ali and Phil Stewart

WASHINGTON (Reuters) - A U.S. Navy warship sailed within 12 nautical miles of an artificial island built up by China in the South China Sea, U.S. officials said on Wednesday, the first such challenge to Beijing in the strategic waterway since U.S. President Donald Trump took office.

The officials, speaking on condition of anonymity, said the USS Dewey traveled close to the Mischief Reef in the Spratly Islands, among a string of islets, reefs and shoals over which China has territorial disputes with its neighbors.

The so-called freedom of navigation operation, which is sure to anger China, comes as Trump is seeking Beijing's cooperation to rein in ally North Korea's nuclear and missile programs.

Territorial waters are generally defined by U.N. convention as extending at most 12 nautical miles from a state's coastline.

One U.S. official said it was the first operation near a land feature which was included in a ruling last year against China by an international arbitration court in The Hague. The court invalidated China's claim to sovereignty over large swathes of the South China Sea.

The U.S. patrol, the first of its kind since October, marked the latest attempt to counter what Washington sees as Beijing's efforts to limit freedom of navigation in the strategic waters.

The United States has criticized China's construction of the man-made islands and build-up of military facilities in the sea, and expressed concern they could be used to restrict free movement.

U.S. allies and partners in the region had grown anxious as the new administration held off on carrying out South China Sea operations during its first few months in office.

Last month, top U.S. commander in the Asia-Pacific region, Admiral Harry Harris, said the United States would likely carry out freedom of navigation operations in the South China Sea soon, without offering any details.

Still, the U.S. military has a long-standing position that these operations are carried out throughout the world, including in areas claimed by allies, and they are separate from political considerations.

The Pentagon said in a statement it was continuing regular freedom of navigation operations and would do more in the future but gave no details of the latest mission.

"We operate in the Asia-Pacific region on a daily basis, including in the South China Sea. We operate in accordance with international law," Pentagon spokesman Captain Jeff Davis said in the statement.

U.S.-CHINA RELATIONS

Under the previous administration, the U.S. Navy conducted several such voyages through the South China Sea. The last operation was approved by then-President Barack Obama.

China's claims to the South China Sea, which sees about $5 trillion in ship-borne trade pass every year, are challenged by Brunei, Malaysia, the Philippines, and Vietnam, as well as Taiwan.

The latest U.S. patrol is likely to exacerbate U.S.-China tensions that had eased since Trump hosted Chinese President Xi Jinping for a summit at the U.S. leader's Florida resort last month.

Trump lambasted China during the 2016 presidential campaign, accusing Beijing of stealing U.S. jobs with unfair trade policies, manipulating its currency in its favor and militarizing parts of the South China Sea.

In December, after winning office, he upended protocol by taking a call from the president of self-ruled Taiwan, which China regards as its own sacred territory.

But since meeting Xi at his Mar-a-Lago resort, Trump has praised Xi for efforts to restrain North Korea, though Pyongyang has persisted with ballistic missile tests despite international condemnation.

U.S.-based South China Sea expert Greg Poling of the Center for Strategic and International Studies, said the operation was also the first conducted by the United States close to an artificial feature built by China not entitled to a territorial sea under international law.

Previous freedom of navigation operations have gone within 12 nautical miles of Subi and Fiery Cross reefs, two other features in the Spratlys built up by China, but both of those features are entitled to a territorial sea.

Mischief Reef was not entitled to a territorial sea as it was underwater at high tide before it was built up by China and was not close enough to another feature entitled to such a territorial sea, said Poling.

He said the key question was whether the U.S. warship had engaged in a real challenge to the Chinese claims by turning on radar or launching a helicopter or boat -- actions not permitted in a territorial sea under international law.

Otherwise, critics say, the operation would have resembled what is known as "innocent passage" and could have reinforced rather than challenged China's claim to a territorial limit around the reef.

(Reporting by Idrees Ali and Phil Stewart; Additional reporting and writing by Matt Spetalnick and David Brunnstrom; Editing by Cynthia Osterman and Sandra Maler)

Occupation with consent

AS EASY AS ABC By Atty. Alex B. Cabrera (The Philippine Star)

If occupying and building artificial islands within Philippine territory were a commercial deal, we would have done a valuation – what did they gain in exchange for what we gave up? Well, we have not given anything up yet, but we haven’t exactly been paid at all, either.

In an actual business valuation of a private company (which is done when an investor is coming in, or when the business is about to be sold), we look at a few things, such as physical assets, profitability and sustainability, cash flow and liquidity, and its market and intellectual properties.

The other thing that is quite important though is establishing the value of the business after the investor comes in or after it is bought, in the hands of the buyer. There could be a huge strategic value to the buyer’s business, and there could be a lot of synergies. As the seller, you would want to share in the value of that synergy. As a negotiator, if you can estimate in dollar terms what the strategic value of your business is to the investor, you can have leverage in negotiating for a better price.

The Jollibee-Mang Inasal deal fascinated people because Jollibee bought its Mang Inasal stake (the initial 70 percent) at three times what was offered by one potential buyer. The synergistic value to Jollibee was obvious because before the deal, Mang Inasal stores were already side by side with Jollibee’s. (And Jollibee loves to do that with McDonald’s.) The combined Jollibee-Mang Inasal offering was a bigger draw, and more importantly, the revenue is now in the same pocket after the deal. (Now, I suddenly miss that palabok, and that spiced chicken barbecue over rice, but that is not the point here.)

So, theoretically, if the value of your standalone business is 100, and to the buyer, with synergies and all, it is worth 1,000, you know you can get a bit more even if you are already offered 300.

The situation of the artificial islands built by China as being within Philippine territory (or most of it are) is already official as ruled upon by the UN Arbitral Court at The Hague. Just a brief refresh: the UN Tribunal has said that China has no historical rights because while they have always claimed it historically, other claimant states, especially the Philippines, do not agree with China’s claims.

To top it all, there is the international Law of the Sea that shows that China is way off the mark. Vietnam is about a bit more than the benchmark, at 200 miles away from the Spratlys, and Malaysia has an overlapping claim with the Philippines. To be fair, we only claim about seven “islands” out of the hundred there, but we want our 200-mile exclusive economic zone respected.

Assuming that occupation is consensual and not by coercion, they would need to give compensation to the Philippines for the tons of fishes, the oil and natural gas that are in there. (The US Energy Information Administration (USEIA) estimates that the South China Sea contains approximately 11 billion barrels of oil and 190 trillion cubic feet of natural gas in proven and probable reserves.)

You can count and conclude that the strategic value to China is bigger because they have bigger ships for fishing, more fishermen out of their much, much bigger population, better-equipped to extract the oil and natural gas in the area, and – very important to them – the military positioning and defense that the South China Sea offers.

Economically, and militarily, they simply have more at stake there than the Philippines, with one big “but”. The territory, within the 200-mile exclusive economic zone, is ours.

Sure, it is encouraging that investments, financing, and tourists are coming in or are promised by China. Allow me though to sound a little bit ungrateful here just to bring in a point. The investments have dividends for the investors, the trade deals benefit both countries, and the financing helps in the trade and even gets Chinese companies a piece of the action, and Chinese tourists know it is more fun in the Philippines. My point is, these are hardly compensation for the West Philippine Sea.

The reality is, they will not remove that structure they already built. This cuts out our work for us: we need to put in the Code of Conduct that is not inconsistent with the international Law of the Sea, secure just compensation for the Philippines, secure at least co-use and co-exploration, and rule against militarization of the islands. Let’s make it consensual and be mindful of what should be outside the commerce of men, like the preservation of marine life.

Regarding the Scarborough (Panatag) Shoal, which is figuratively a stone’s throw away from Subic, I guess we cannot be blamed for being suspicious about negative pregnant statements. When China said there were no radar systems there, could they mean that some other system was being developed there instead? After all, they did insist in the beginning that the artificial islands in the Spratlys were for marine research, and not to support a sturdy, permanent aircraft carrier with multiple runways.

I would believe the President when he said that he made no secret deal regarding Panatag, or the Spratlys for that matter, because what comes first in the job description of the President, as a civilian, is to lead the military in defending Philippine territory. We can start by sending erring anti-narcotics policemen to man a post in the Panatag Shoal. If their blood spills there during a standoff, they would have died not as villains, but as heroes.

* * *

Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the Tax Committee of the Management Association of the Philippines (MAP). Email your comments and questions to aseasyasABC@ph.pwc.com. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.

Primer on Philippine maritime areas

I am pleased   to send  herewith a  copy  of  the  “Primer”  I prepared   on  “The  Ocean  Space   or  The  Maritime   Area  of  the Philippines  (Including  the Seabed  and Subsoil  and  their  Air Space under the Law of the Sea Convention  [particularly Part IV], the Philippine  Constitution  and Relevant Laws)”.

The Primer is intended to inform of the maritime areas over which the Philippines  has  sovereignty,  sovereign  rights  or jurisdiction, principally its territorial sea, the contiguous zone, its exclusive economic zone and the continental shelf.  For convenient reference, the pertinent provisions of the Law of the Sea Convention (LOSC),  the   Philippine Constitutions   and   relevant   statutes   are quoted.

Far too frequently opinions and views are expressed,  not in accord even with explicit provisions  of the LOSC.  A recent example are views on the Benham Rise, a part of the extended continental shelf of the Philippines.

It was my privilege  to  have  been  a  vice chairman of  the Philippine delegation  to the Law of the Sea Conference,  initially in the  Seabed  Committee, which  convened in 1968,  and  in the  United Nations  Conference  on  the Law  of  the  Sea,  which   convened  in December 1973.   The Law of the Sea Convention was adopted by the United Nations in 1982, and it entered into force in 1994.

Some observations are made on the Arbitral Award  on  the Philippine Claim  of  July 12, 2016, particularly  in  relation   to  the tensions  in  the  South  China  Sea  and  how  the  administration of President  Duterte  is addressing  its enforcement  and overall relationship with China.

It is my hope that the Primer will contribute to a more enlightened and   productive exchange of   views   in   regard the problems  facing   the  Philippines  in  protecting  and  enhancing  its rights over the maritime areas over which it has sovereignty or jurisdiction.

Estelito P. Mendoza

source:  Business Mirror

Get It Real: The Arroyo/Mendoza gospel and Carpio’s book

One is not sure why lawyer (for Marcos and cronies), former solicitor general and former Pampanga governor Estelito Mendoza has jumped into the conversation on the Philippines’ maritime issues with China, especially since he was quoted as saying that there are currently “too many conversations” on the issues. But he has jumped in with a big splash, launching a “primer” (his description) titled “The Ocean Space or the Maritime Area of the Philippines” in a press conference held at the House of Representatives.

How did he manage that location given that he is not a member of the House? Well, because his costar was none other than former president and now Pampanga Rep. Gloria Arroyo, who was in turn supported by her erstwhile executive secretary, Eduardo Ermita.

That press conference, from the quotes in the media reports, essentially blamed Arroyo’s successor, P-Noy Aquino, for China’s buildup of infrastructures (island-building) in these here parts. How? According to Mendoza, China itself said so. It categorically stated that the Philippines’ case against China in the Permanent Court of Arbitration (in The Hague) had provoked its island-building. Mendoza said there was “relative quiet and peace” during the Arroyo administration. In apparent support of Mendoza, Arroyo chimed in three times that China’s artificial islands were all built during P-Noy’s term.

Get the logic?  If the Philippines hadn’t brought up the case in the first place, China would not have done what it did (spending all that money to build all those structures, reclaiming the land, and destroying the environment). Thus, it was all P-Noy’s fault. We shouldn’t have challenged China at all.

Gott im Himmel. The gospel according to Arroyo/Mendoza. China’s actions have all been in reaction to the Philippines’ actions. It had no global strategy at all. So if we had just kept quiet, there would be peace now, and President Duterte would not be facing this “most difficult problem.”

This scenario is not only logically flawed (e.g. post hoc: The buildup started after P-Noy, so he must have caused it), there are factual errors, too.  The Trump-Duterte syndrome is spreading very fast.

Thank heaven we have Justice Antonio T. Carpio’s new e-book, “The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea.” It is going to be launched soon, and it can be freely downloaded. And it tells you everything about the matter, in a very simple, understandable manner, so there is no excuse for not reading it, and getting the facts straight. The best of research.

Let’s see what Carpio’s book can tell us about the Arroyo/Mendoza gospel:

Well, it turns out that China first brought to the world’s attention its nine-dash line (which it adopted in 1948) in 2009—in protest against Malaysia and Vietnam’s extended continental shelf (ECS) claims. Notice: 2009 was during Arroyo’s watch.

What are the ramifications of China’s nine-dash line? Asean countries would lose anywhere from 30 percent to 80 percent of their exclusive economic zones (EEZs). The Philippines, in particular, would lose 80 percent of its EEZ comprising about 381,000 square kilometers of maritime space including the entire Reed Bank and part of the Malampaya gas field, and 100 percent of its ECS.

Malaysia and Vietnam lost no time in protesting this. Arroyo didn’t do anything about it while she was president. The note verbale was sent only during P-Noy’s time (2011). No wonder there was relative peace and quiet with Arroyo.

The problem, Reader, is that “silence or inaction can be interpreted as a state’s acceptance of a factual or legal situation.”

By the way, it was in the Philippines’ case against China that the Permanent Court of Arbitration ruled that China’s nine-dash line was baloney (although not in such graphic terms). Asean, I think, has yet to thank us.

Carpio’s book also discusses China’s objective: economic and military control of the South China Sea, not a fit of pique versus the Philippines.

Is it a case of nothing-can-be-done? No. Carpio suggests, among other things, lawfare (with specific examples), and missiles. Read his book.

By: Solita Collas-Monsod - @inquirerdotnet

Philippine Daily Inquirer / 12:28 AM April 22, 2017

U.S. has few reasons to fan drone spat

For all the outrage after China seized a US naval drone last week, it’s far from clear whether it will herald a new era of confrontation on the high seas between the world’s biggest economies.

China’s unprecedented move last week drew condemnations from the Pentagon, the Philippines and President-elect Donald J. Trump, who accused the nation of stealing the drone. China rejected that characterization on Monday, saying it made the seizure to protect shipping in the area, while agreeing to return the unmanned vehicle.

Either way, further escalation is unlikely for a few reasons: China’s response has been muted, the drones are relatively common and unsophisticated and the US has little reason to send warships on what it considers peaceful operations. Moreover, the incident fell into what strategists call a gray zone, too mild to provoke a military response that risks destabilizing the region.

“Allies in the region do want to see a steadfast American presence and maintenance of the rules-based order, but they don’t want to see overly assertive or prematurely assertive American behavior that might be making things worse,” said Ashley Townshend, research fellow at the US studies center at the University of Sydney.

China sought to downplay the episode on Monday, with Foreign Ministry Spokesman Hua
Chunying likening the drone to an object found on the street.

Drone intelligence

“You have to take a look and investigate it to see if the thing belongs to one who wants it back,” Hua said.

Fox News and other media outlets reported the glider may be returned as early as Tuesday at an agreed location in the South China Sea, citing unidentified US officials. “We’re working out the logistical details,” Defense Department Spokesman Peter Cook said.

Whether China found anything interesting remains to be seen. Underwater gliders like the one seized are used to collect environmental readings, such as water temperature, salinity and information on currents for use by the military as navigation aids for ships and submarines, according to Sam Bateman, a research fellow at the Australian National Centre for Ocean Resources and Security in Wollongong.

“It was surprising the Chinese bothered to recover it,” he said. “They probably wouldn’t be able to read the data on it, and they might not get a great deal of intelligence out of it.”

Bateman, who is a former Royal Australian Navy commodore, said the incident is unlikely to prompt the US to start using warships for what it considers peaceful operations.

‘Bit naughty’

“The Chinese were probably a wee bit naughty taking this thing,” he said. “Some are making the argument that this is China demonstrating that they can do as they like in the South China Sea. That’s a stretch.” China has long opposed American patrols and surveillance within its exclusive economic zone, while the US views anything beyond 12 nautical miles as international waters in which military activities can take place.

“The issue for the United States is less about a strong response to a specific incident and more about a broader and resolute US response to what is seen as a pattern of sustained Chinese assertiveness in the region,” said Andrew Scobell, a senior political scientist at RAND Corporation. Any US response to future moves “would be measured and appropriate to the scope and scale of any Chinese action.”

No strategy

The location of this incident, about 50 nautical miles northwest Subic Bay, raised eyebrows. Defense Secretary Delfin N. Lorenzana said on Monday that, while the matter should be resolved between China and the US, it was “very troubling” because it occurred within the country’s 200-nautical-mile exclusive
economic zone.

The last major incident between the US and China in the South China Sea occurred in 2013 when the USS Cowpens and a Chinese military vessel had a confrontation in the South China Sea that required maneuvering to avoid a collision. In August 2014 a Chinese fighter buzzed within 20 feet of a US surveillance plane in international waters near Hainan island.

The US must develop a strategy for responding to incidents involving underwater unmanned vehicles because they are likely to become more common, said Collin Koh Swee Lean, an associate research fellow at the S. Rajaratnam School of International Studies in Singapore. Even so, he said, the devices aren’t worth going to war over.

“The good thing about the device is that it was unmanned,” Koh said. “The US understands they are meant to be lost.”

source:  Business Mirror

DESPITE RHETORIC: Duterte gives nod to PHL-US Balikatan war games, EDCA — Lorenzana

President Rodrigo Duterte has given his nod to the continuation of the Balikatan joint military exercises between Philippine and US forces, Defense Secretary Delfin Lorenzana told reporters on Monday.

Lorenzana said the continued conduct of Balikatan in the country was one of the DND's recommendations that Duterte approved.

The secretary said the Enhanced Defense Cooperation Agreement between the two countries would also continue.

Lorenzana's remarks came weeks after Duterte declared in Beijing that he was separating the Philippines from the US, in terms of the military and the economy.

He said he was pursuing a foreign policy in which the Philippines would no longer follow the dictates of its treaty ally.

Duterte previously announced to end military exercises with the United States.

He also hinted revise or abrogate executive agreements just to see foreign troops out of the country.

"Nag-present kami. Practically in-approve niya lahat ng recommendation," Lorenzana told reporters on Monday.

"Iyong recommendation namin is the exercises will go on except na bawasan ang major exercises na involving landing exercise," he added.

This means that the Balikatan military exercises would still push through every year with the same number of participating Americans troops of 1,000.

"'Yung mga Balikatan na lang [ang natira]. So yearly, continue nalang siya. Ang matitira is counterterrorism, tsaka 'yung humanitarian response, 'yung mga special operations na mga counterterrorism, mga engineering projects, civic action. 'Yun na lang muna," he added.

This means that the Philippines will no longer engage in the Philippines Amphibious Landing Exercise (Phiblex) and the Cooperation Afloat Readiness and Training (CARAT) with US forces.

Lorenzana said the EDCA would remain.

"It will remain. Hindi naman [i-abrogate]," Lorenzana said.

source:  GMA News Online

Incoherent

SKETCHES By Ana Marie Pamintuan (The Philippine Star)

The day after President Duterte announced his “separation” militarily and economically from Uncle Sam, all his officials were running around like headless chickens, trying to explain the unexplainable to a flabbergasted world.

After returning to the country Friday night via Davao, Duterte added to the confusion by clarifying that he did not intend to cut ties with Washington because, he said, “the Filipinos in the United States will kill me.” I’m sure neither the Americans nor the Chinese are amused.

Du30, who promised to undergo a “metamorphosis” – only to say later that he saw no need to change his ways and we have to take him as he is – will find it useful to adopt two minor changes in his work ethic.

One is to read prepared speeches. If he can’t help it, he may confine his extemporaneous remarks,  profanities and ejaculations of political incorrectness and uninformed commentary to small or localized gatherings where he knows the audience shares his sense of humor and is charmed by a cussing president. But even in such gatherings, and even outside the coverage of mainstream media, he must remember that smartphones and social media can still spread his remarks around the planet in real time.

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Another useful change is to start consulting his Cabinet on matters of grave national importance. Obviously this is not happening. In the past days I’ve heard people who personally know some of his Cabinet members wonder how long the secretaries will last with a boss who takes them for granted, shoots his mouth off and then leaves them to clean up the mess.

Du30 should also consider the latent condescension in one of his favorite stories to regale an adoring Pinoy audience. He did it again in Beijing. Look at my Cabinet members, several of them childhood friends, he told the gathering of Filipino expats. The Cabinet men were valedictorians, overachievers, the best and brightest in their youth. And now here they are, he said, the “trabajante” of the underachiever who barely passed.

He tells the story to illustrate his belief in destiny, and to stress that God put him where he is now. So many atrocities have been committed in the name of God, and it’s always dangerous when someone starts believing that he has the mandate of Heaven. The last president to invoke God’s mandate was Gloria Macapagal-Arroyo.

Destiny surely must have been at work in their lives, and there are Pinoys these days who are saying that God must hate the Philippines so much. The government seems to be lurching needlessly from one self-made crisis to another.

This is kamikaze governance. Left unchecked, it could bring down if not the nation, then Du30’s government.

* * *

Already, Du30’s motor mouth is costing him his credibility before the international community. And he should stop saying he’s not the president of the world, but only of the Philippines. Such myopia is dangerous for a country that is progressively slipping in international competitiveness. He should be encouraging Filipinos to become global citizens, to compete with the best in the world.

Being a lawyer, Duterte has to understand the importance of words, nuance and context. He claims weak proficiency in English and Filipino ­– something that is hard to believe for someone who has served as a public prosecutor and has three children by an American. But if the claim is true, this makes it all the more important for him to read prepared speeches.

Flip-flopping is never good for a world leader. At this point Du30 is still considered a world leader, but if he keeps up with his juvenile behavior, hyperboles, crude language, flip-flopping and clarifications of public statements, he might find himself regarded as an international buffoon.

If his incoherent foreign policy continues, we will soon become the laughingstock of the world.

* * *

Du30 should consider that he might be putting even his preferred allies on the spot with his intemperate remarks.

After openly raising expectations of asserting Philippine fishing rights over Panatag (Scarborough) Shoal, for example, there was deafening silence from Beijing, and Du30 came home empty-handed. There was no mention of the continuing Chinese occupation of Panganiban or Mischief Reef, over which the Permanent Arbitration Court has given the Philippines sovereign rights.

And while Beijing surely appreciates his “pivot” away from the US and into the arms of China, there must be enormous befuddlement – perhaps even snickering – in Beijing and Moscow over his announcement of forming a “triumvirate… against the world” with nuclear club members China and Russia.

For a president who keeps promising that his government will be clean, Du30’s choice of allies is baffling. Beijing is battling corruption at all levels. Apart from national corruption scandals, the venality in the Chinese bureaucracy has given the world melamine in milk and candy, lead in toys, killer toxins in pet food and cardboard in siopao filling. Beijing’s crackdown on corruption has been bad news for Philippine casinos; the expected influx of high rollers from the Chinese mainland has not materialized.

Russia, meanwhile, has been plagued by cronyism, inefficient state capitalism and gangster activities. The economy has faltered because of weak oil prices and massive defense spending for Vladimir Putin’s wars overseas.

Putin, whom Du30 has said he likes, has enough problems, both domestically and internationally. The Russian president must be dumbfounded to learn that his country is being made part of a “triumvirate… against the world.”

* * *

Definitely the Americans have gotten the message that this Philippine President is no fan of Uncle Sam. But a recalibration of foreign policy can be done without pugnacity and with so much more finesse, so that the Philippines gains more friends instead of losing allies.

If Duterte is crafting an “independent” foreign policy, he should just do it, quit yapping about it, and show the world what he means exactly.

In refusing to be an American “puppet” – as he likes to describe the ties with the Philippines’ treaty ally – Du30 should avoid turning into a Chinese puppet.

It’s early days yet and the nation that sent Duterte to power by a landslide is still fervently wishing that he does well. The success of a president generally spells success for the nation. But cheering him on is getting harder with each passing day.

The President must not make it hard for a still optimistic nation to support him.

Duterte wrong on China non-invasion – Carpio

GOTCHA By Jarius Bondoc (The Philippine Star) 

President Rodrigo Duterte misstated in Beijing that China never has invaded any part of Philippine territory. This was pointed out last week by Supreme Court Senior Justice Antonio Carpio. For, China did grab Scarborough Shoal in 2012.

Expert in international law, Carpio called on the government immediately to correct Duterte’s history lapse, lest it be taken against the Philippines. The jurist extensively has researched the South China Sea dispute, and was among those who brought the Philippine case for UN arbitration. The UN court has rubbished China’s alleged right to occupy Scarborough, off the coast of Luzon and well outside China’s territorial or economic zone waters.

Following is Carpio’s lament:

“President Duterte is quoted in the Channel News Asia’s article, “Philippines’ Duterte Praises China on Beijing Visit,” posted in its website on 19 October 2016. The statements of President Duterte as quoted in the article must be corrected to avoid serious damage to the Philippines.

“In referring to China’s relation with the Philippines, President Duterte is quoted in the article as saying: ‘It (China) has never invaded a piece of my country all these generations.’  This is incorrect. In 2012 China physically seized and in effect invaded Scarborough Shoal, which is defined as Philippine Territory under Republic Act No. 9522 (Amended Definitions of the Archipelagic Baseline of the Philippines). RA 9522 states that the Philippines has ‘sovereignty and jurisdiction’ over Scarborough Shoal. In 1995 China seized from the Philippines Mischief Reef, which is part of the submerged continental shelf of the Philippines as affirmed by the Tribunal’s Final Award of July 12, 2016.

“All ancient maps of the Chinese dynasties show Hainan Island as the southernmost territory of China. There is no ancient Chinese map showing Scarborough Shoal or the Spratlys as part of Chinese territory.  Ancient maps of the Philippines show that Scarborough Shoal has been Philippine territory since 1636, and the Spratlys were part of the Philippines since at least 1690. On 29 September 1932, China officially declared to the world, in a Note Verbale to France, that China’s southernmost territory were the Paracels, moving a little further south its southernmost border.  Even then, it meant that Chinese territory never included Scarborough Shoal or the Spratlys.

“Regarding the Tribunal’s Final Award, President Duterte is quoted in the article as saying: ‘The arbitral award gives us the right; China has the historical right.’ That is incorrect. The UNCLOS Tribunal at The Hague concluded: ‘The Tribunal sees no evidence that, prior to the Convention, China ever established a historic right to the exclusive use of the living and nonliving resources of the waters of the South China Sea, whatever use it may historically have made of the Spratlys Islands themselves.’ The Tribunal explained that China’s uses in the past of the South China Sea beyond its territorial seas, through fishing by Chinese fishermen and sailing by its merchant ships and navy, were uses of high seas freedom, just like the uses of the South China Sea by other states. The South China Sea was never exclusively used by China, in the past or now.

“These statements by President Duterte must be corrected lest China claim, quoting him, that Scarborough Shoal is not Philippine territory and that the Philippines recognizes China’s historic rights to the South China Sea, a claim the Philippine government already successfully refuted as false before the Hague Tribunal. Under international law, unilateral statements of a head of state can bind the state and can be taken against such state in an arbitration between such state and another disputant state; thus the need for the government to issue immediately a correction, lest these statements of President Duterte bind the Philippines.”

* * *

Agrarian Reform Sec. Rafael Mariano accuses the Cojuangco clan of non-payment of P1.3 billion to thousands of workers of Hacienda Luisita in Tarlac. Ironically however, those workers say it is Mariano’s fault that they haven’t been paid the amount due them.

The Supreme Court has ruled with finality that the Cojuangcos must pay the P1.3 billion, from the sale of 500 hectares of Hacienda Luisita as an industrial estate and the expropriation of 83 hectares to construct the South Luzon Expressway. The SC ordered the Dept. of Agrarian Reform to initiate the audit of the exact amount to be paid to the workers, minus administrative costs incurred by the Cojuangcos’ Hacienda Luisita. The workers say Mariano has not commenced the audit although the SC has designated the three auditing firms. Instead, Mariano reportedly is entertaining the petition of a handful of workers to reverse the conversion of agricultural land to industrial estate.

The workers say such reversion is no longer possible since the SC has deemed legal the sale of the industrial estate. What is left to be done is for Mariano to junk the petition, proceed with the audit to determine the exact amount, and finally, distribute the cash to the beneficiaries.

* * *

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