Int’l arbitration panel ready to hear PH case against China

MANILA, Philippines—The panel of five international arbitrators that would hear the Philippines’ case against China’s claims in the West Philippine Sea (South China Sea) has been completed, the Department of Foreign Affairs (DFA) said on Thursday.

DFA spokesman Raul Hernandez said that Judge Shunji Yanai, president of the International Tribunal for the Law of the Sea (Itlos), had appointed the last three members of the panel.

“That means the case is moving and, as expected, we are hoping that this case that we filed in the tribunal will proceed as soon as possible,” said Hernandez in a press briefing.

In a letter dated April 24, Yanai informed Solicitor General Francis Jardeleza, head of the Philippine legal team pursuing the case, that the panel had been completed.

The newly appointed arbitrators are Judge Chris Pinto (Sri Lanka), who will serve as panel president, and Itlos judges Jean-Pierre Cot (France) and Alfred Soons (The Netherlands).

In March, Yanai appointed Polish Itlos Judge Stanislaw Pawlak to join his fellow Judge Rudiger Wolfrum (Germany) in the panel. The Philippines nominated Wolfrum to the panel upon filing its case on Jan. 22.

The Philippines filed the case against China in an ad hoc arbitral panel in hopes of halting its incursions into established Philippine maritime borders in the West Philippine Sea. The move also sought to invalidate China’s nine-dash line claim in the waters, which the Philippines asserts encroaches on its exclusive economic zone.

China has rejected the proceedings, citing “indisputable sovereignty” over the potentially resource-rich territories. The process will, however, continue even without the participation of China, as stipulated in the United Nations Convention on the Law of the Sea (Unclos).

The Itlos president took on the task of completing the panel upon China’s refusal to take part in the proceedings. Parties involved are supposed to nominate their panel members.

“The five-member arbitral tribunal will organize itself and establish its own rules. They will establish whether they have jurisdiction to hear the case,” said Hernandez.

“We are very confident that this will be taken up by the tribunal and that the tribunal will award us as far as our maritime entitlements in the West Philippine Sea is concerned and declare that China’s nine-dash line claim has no validity as far as international law and Unclos is concerned,” he said.

source: Philippine Daily Inquirer

South China Sea: A decades-long source of tension

BANDAR SERI BEGAWAN — Competing claims to the South China Sea have for decades been a source of tension in the region.

China’s increasing assertiveness in staking its claim in recent years has caused concern for neighboring countries, particularly the Philippines and Vietnam.

The South China Sea issue will be a top priority for Association of Southeast Asian (Asean) leaders during their two-day summit in Brunei beginning on Wednesday. Below are key facts on the sea and the competing claims:

Geography
The South China Sea covers more than 3 million square kilometers (1.16 million square miles) on the western edge of the Pacific, with China and Taiwan to the north, the Philippines to the east, Borneo island to the south, and Vietnam to the west.

It contains hundreds of small islands, islets and rocks, most of which are uninhabited. The Paracel and Spratly chains contain the biggest islands.

Significance
The sea is the main maritime link between the Pacific and Indian oceans, giving it enormous trade and military value. Its shipping lanes connect East Asia with Europe and the Middle East.

Major unexploited oil and gas deposits are believed to lie under the seabed.

The sea is home to some of world’s biggest coral reefs and, with marine life being depleted close to coasts, it is important as a source of fish to feed growing populations.

Claimants
China and Taiwan both claim nearly all of the sea, while Vietnam, the Philippines, Malaysia and Brunei each have often overlapping claims to parts of it.

China’s claim is based on a historical map of “nine dashes” that approaches the coast of other countries.

Name
Beijing and most other countries know it as the South China Sea. Hanoi calls it the East Sea and Manila officially refers to it as the West Philippine Sea.

Occupation/Control
China has held all of the Paracel islands since a conflict with South Vietnam in 1974 that left 53 Vietnamese military personnel dead.

Vietnam is believed to occupy or control more than 20 of the Spratly islands and reefs, the most of any claimant.

Taiwan has a garrison controlled by its coastguard on Itu Aba island, which is called Taiping in Chinese and is the largest in the Spratlys.

The Philippines occupies nine of the Spratlys, including Thitu island, the second largest in the area. The Philippines has a military presence and civilians living on Thitu, which it calls Pagasa.

China occupies at least seven of the Spratlys including Johnson Reef, which it gained after a naval battle with Vietnam in 1988.

Malaysia occupies three of the Spratlys. The most significant presence is on Swallow Reef, called Layang Layang Island in Malaysia, where it has a naval post and a diving resort.

Brunei does not occupy any land formation but claims a submerged reef and a submerged bank in the Spratlys.

Tensions – China/Vietnam
Aside from the 1974 battle for the Paracels, the only other major conflict occurred when Vietnam and China fought a naval battle on Johnson Reef in the Spratlys in 1988 that left 70 Vietnamese military personnel dead.

However, Chinese naval vessels have fired at other times on Vietnamese fishing boats in the area.
In June last year, Vietnam passed a law proclaiming its jurisdiction over all of the Paracel and Spratly islands, triggering Chinese protests.

At about the same time China announced it had created a new city, Sansha, on one of the Paracel islands, which would administer Chinese rule over its South China Sea domain.

Tensions – China/Philippines
In 1995, China began building structures on Mischief Reef, within the Philippines’ exclusive economic zone.
Tensions between the two nations started to rise in 2011 when Chinese vessels harassed a Philippine-chartered gas exploration vessel at Reed Bank.

The Philippines then accused the Chinese of a pattern of intimidation, including firing warning shots at Filipino fishermen and laying buoys around Philippine-claimed islets.

A stand-off between Chinese and Philippine vessels that began in April last year at Scarborough Shoal further inflamed tensions. The Philippines says China has since “occupied” the shoal, keeping vessels there.

In January this year the Philippines asked a United Nations tribunal to rule that China’s claims to the sea were invalid. China refused to participate in the legal proceedings, which could take years to complete.

Diplomacy
The 10-member Association of Southeast Asian Nations and China adopted a non-binding “declaration of conduct” in 2002 to discourage hostile acts.

But attempts to turn it into a legally binding “code of conduct” have failed.

The dispute has created divisions within Asean. A meeting of foreign ministers last year ended for the first time in the bloc’s history without a joint statement because of infighting over the issue.

Meeting host Cambodia, a China ally, rejected a Philippine push for the statement to take a harder line against the Chinese.

The Philippines has said it will again push at the Brunei summit for a code of conduct to be signed as soon as possible.

* Data drawn from AFP’s archives, International Crisis Group reports and www.globalsecurity.org.

source:  Philippine Daily Inquirer

Trawling Tubbataha’s treasures

Commentary

By Rex Robles, VERA Files (Yahoo!)

 

USS Guardian in Tubbataha

  It was 1974 and I was taking up an advanced course in Mechanical Engineering at the US Navy Postgraduate School in Monterey, California. For our final exam in Oceanography, our professor simply called the twelve of us to his office one by one and asked us a few questions. I noticed a certain level of interest in the Philippines that I did not expect.

For instance, he showed me a satellite photograph of Manila Bay and asked me what I thought about a plan to build a highway along the Manila-Cavite coastline. I mumbled some comment on how the ecology in the area would be affected.

Then he showed me photographs of the entire Sulu Sea with what looked like ridgelines in the water running roughly parallel to Palawan. I was intrigued. My professor, who is based in New Zealand, told me they were a dozen or so swells that go northwest at certain times. At other times, they go the opposite way.

The swells seemed to emanate from the Tubbataha area. I could find no natural explanation for the phenomenon and neither, it appeared, could my professor. We talked about Tubbataha having been formed from underwater volcanoes, about the effect of winds and tides, but arrived at nothing conclusive. Could the swells have come from seismic tests, as in oil exploration? But then the swells would hardly appear linear as captured by the satellite images. And they would go only one way.

The special interest in the Philippines and its underwater resources seemed even more pronounced during a class visit to Port Hueneme in California, where the US Navy ran a facility for testing certain projects, most of them top secret. As a foreign student, I was not allowed to enter the area where Polar environments were simulated, but instead was brought to a huge, air-conditioned warehouse where they kept soil samples extracted from the ocean bottom by their research vessels.

I was shown soil samples taken from the South China Sea by a government vessel, the Glomar Challenger I. At that time, the United Nations Commission on the Law of the Sea or UNCLOS was still unheard of and my hosts presumably saw nothing wrong with taking samples from what they considered then as international waters. It was surmised at that time, from the samples analyzed, that the area was rich in carbon deposits, both gas and oil.

A young US Coast Guard Officer formally opined in a term paper he submitted to our class in Maritime Law that the waters around Tubbataha were international in character, following the 12 km limit for internal waters being observed at the time. I felt compelled to submit a rebuttal pointing out that among other cases, wide portions of Hudson Bay in North America would have to be treated likewise. My rebuttal went unchallenged, and was actually cheered by the rest of the class.

The activities of Glomar Challenger in the sixties and even earlier went virtually unnoticed by the Philippine Government. Given the more than casual interest of certain sectors in the US regarding our underwater assets, isn’t it possible that they also have mapped out the sea bottom at and around Tubbataha?

My point is that in the struggle for control of prime movers such as gas and oil, national boundaries do not matter as much as actual control of these resources from inside or outside these boundaries. And where the boundaries are poorly defined, the strong and powerful will most likely enter the picture to pursue their own interests.

Which brings us to the reasons the USS Guardian came to grief on the shoals of Tubbataha. The US Government has blamed faulty charts for the grounding. Perhaps for lack of a better or more plausible explanation, though it erroneously assumes that everything else was above board.

For even the most accurate and detailed charts won’t help if you are already in the wrong place to begin with! The Officer On Watch (OOW) at that time will have to explain why the ship was where it was just before the grounding. What he did (assuming he was alone in making the decision) was like a motorist abandoning a highway to enter, in the dead of night, a dense forest clearly off limits, with no tire-tracks to follow, and with boulders to hamper his way.

The ship’s Captain also keeps a Night Order Book, where he writes down what he expects to be done during a night passage. He also approves a charted course for the ship to follow. Was the course he approved specifically set for Tubbataha? If so, why? If not, why did the OOW still head for that restricted area?

Chinese vessel that got stuck in Tubbataha April 8, 2013The recent case of the Chinese fishing Boat, which ran aground within sight of the Ranger Station in Tubbataha, is similarly instructive.

To begin with, it can be assumed that at least one of the crewmembers understands English (or even Tagalog!). They did not just wander deep into the Sulu Sea without such preparation. Jabbering in Chinese or playing their national anthem in response to official overtures just won’t wash. After all, they knew enough to communicate a desire to buy their way out of their predicament.

Our experience with Chinese “poachers” who intrude into our territorial waters is that they are invariably equipped with the requisite navigational and communications equipment. They can navigate well, even without the use of GPS, with their sextants complemented by tables of star elevations and coordinates (H.O. 214). They did not just make a mistake for which, therefore, they should be forgiven. They have no valid excuse for their illegal presence, and our laws should fully apply.

However, the argument put forward by a government spokesman that the difference in treatment with the Guardian case is an “apples and oranges” comparison does not hold water. The Guardian did not have the implied blanket permission to operate in Philippine waters. It had to have specific license to enter a highly restricted, “no take” area such as Tubbataha. In that sense, it is clearly in the same boat as the Chinese vessel.

The further claim that the Guardian incident was being investigated is likewise misleading since I don’t know of any Philippine effort to undertake such an inquiry. We appear to be satisfied with being merely invited to an investigation conducted by US authorities. And then, since we are dealing with the mighty United States of America, we quietly acquiesce to the findings.

Our tepid response to offenses committed by United States personnel, as in the Guardian incident, only serves to underline our inability to project a dignified image as a sovereign nation with respect to other countries. We were only too eager to placate Malaysia in the recent sad and ungraceful Sabah imbroglio. Finally, our attempts to apply the full force of the law in the case of the Chinese intrusion will challenge our ability to set the incident in the more significant context of our broader political and economic relations with China.

(The author is a retired Philippine Navy commodore. He is currently head of RCR Consultancy, a security risk management outfit. VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”)

Tubbataha groundings and the folly of the Baselines Law

By Atty. Harry Roque Jr.
No lawyer can claim to have won all his cases. If any lawyer claims otherwise, he or she is obviously lying.
In public interest litigation, an actual victory need not be the ultimate goal. Sometimes, the fact that a petition against a tyrannical or a whimsical act of government is filed in court is victory by itself. This is because the filing of the petition is the message itself, forming part of an overall advocacy strategy intended to provoke public debates on issues involving the public interest.

Such was our concern when we challenged the constitutionality of the 2009 Archipelagic Baselines Law.
Our primary basis for challenge was because the law seeks, pursuant to the United Nations Convention on the Law of the Sea, to reclassify our internal waters into “archipelagic waters.”

Under this new regime, all vessels, including the USS Guardian or the Chinese fishing vessel that recently grounded in Tubbataha, are given the right to innocent passage in the waters within our straight baselines. This despite the fact that Article 1 of the 1987 Constitution refers to these waters as “internal waters.” Passage through internal waters always requires the consent of the coastal state, whereas the exercise of innocent passage does not.

Moreover, the UNCLOS provisions on archipelagic states allow aircrafts the right of overflight over these waters. Worse, it allows vessels transit passage, or non-suspendible innocent passage, in archipelagic straits. These are maritime superhighways governed by the same legal regime applicable in international straits. The legal regime in these waters is that vessels must always be allowed uninterrupted passage. If these transits are not designated, then the actual straight shall be determined through actual usage. This means that the West Philippines Sea, where 80 percent of all maritime traffic goes through, would be governed by the legal regime of international straights.

Obviously, our argument was that the constitutional “internal waters” could not be made into “archipelagic waters” either through law or through treaty. Only a constitutional amendment could achieve this.

But we lost our case. The Supreme Court said that despite the radically different legal regime of archipelagic waters, the scope and breadth of our territory had not been altered. It was not until the landing of the Royal Sulu Army in Sabah that I realized the import of the Court’s ruling in this regard—that even if the 2009 law did away with the provision in the 1950 baselines law that the use of basepoints and baselines was without prejudice to our claim to Sabah, the passage of the 2009 law did not abandon our claim to Sabah. This was a clear case of judicial legislation.

In any case, what the Convention approved as the regime for archipelagoes was not what our delegates to the UNCLOS wanted. They wanted, pursuant to our Constitution, the exercise of complete sovereignty and jurisdiction in our “internal waters” given that military vessels may otherwise be able to exercise the right of innocent passage through these waters. When they failed in this regard, the Senate, as a precondition to our ratification of the UNCLOS, required our delegation to deposit a “declaration” that our territory shall continue to be defined by our Constitution.

The grounding of the USS Guardian and the Chinese fishing vessel in Tubbataha are only the beginnings in the folly created by this archipelagic baselines law. In the past, neither vessel could have sailed through the Sulu seas without our consent. The law has done away with such consent. Worse, we have reduced by at least 229,000

square kilometers the scope of our territorial waters, which is subject to our sovereignty and jurisdiction. In this regard, the Supreme Court erroneously concluded that the loss had been compensated through our gain in terms of Exclusive Economic Zone.

This however, is non sequitur since a state can only exercise the right to explore and exploit the resources found in the EEZ. It cannot exercise powers of sovereignty in them.

Ultimately, the Court ruled that pacta sundt servanda—or treatyobligations must be compliedwith in good faith—should prevail even against an express provision of the Constitution. In so ruling, it forgot that the Constitution itself provides a policy crafted by the Filipino people. In the case of our territory, the sovereign people decreed that all the waters of our archipelago, because of national security considerations, precisely of the type that we now face with China, should be subject to our sovereignty and jurisdiction. But because Congress, when it legislated the 2009 law, and the Court, through its ruling in Magallona vs. Executive Secretary, defeated the will of the sovereign people in this regard,  expect the recent groundings in Tubbataha as a foreboding of worse things that are yet to come.

May the heavens help this land (and waters)!

For latest update on real estate development and its RA 9646, the Real Estate Service Act of 2009, visit www.ra9646.com.

 

Graphics Showing the Dispute in South China Sea

source:  Yahoo! Philippines' The Dispute with China Slideshow