CJ Panganiban: Realities of victory

The Arbitral Tribunal, as I wrote last Sunday, ruled on Oct. 29, 2015, that it had jurisdiction over the maritime dispute between the Philippines and China, and will decide the substantive issues early next year. But even if it wins “on the merit,” our country will still face at least two grim realities: enforcement and standoff.

Neither Itlos nor PCA. Before going any further, let me correct a glaring error. In the early days, the media reported that the International Tribunal for the Law of the Sea (or Itlos) based in Hamburg was hearing the case. Two weeks ago until yesterday, the media said it was the Permanent Court of Arbitration (or PCA) based in The Hague.

Well, it was neither. According to the Oct. 29 decision itself, the adjudicating body is an ad hoc (temporary) “Arbitral Tribunal Constituted Under Annex VII of the 1982 United Nations Convention on the Law of the Sea (Unclos).”

When a state signs, ratifies, or accedes to the Unclos, it must choose one of four tribunals to settle the disputes it brings: 1) the Itlos, 2) the International Court of Justice, 3) “an ad hoc arbitration (in accordance with Annex VII of Unclos),” or (4) a “special tribunal constituted for certain categories of disputes.” Since the Philippines did not choose any, it is deemed under Unclos to have chosen Item 3.

This Tribunal is constituted case by case and is composed of five members. Judge Rudiger Wolfrum, a German, was named by the Philippines. A second member was to be chosen by China. Since China opted not to participate, the president of Itlos—pursuant to the provisions of Unclos—appointed Judge Stanislaw Pawlak, a Pole.

Thereafter, the president of Itlos named three more—Judge Jean-Pierre Cot, a Frenchman; Prof. Alfred H. A. Soons, a Dutch; and Judge Thomas A. Mensah of Ghana, as the presiding arbitrator.

The PCA is not a “court.” However, it acted as the Tribunal’s “Registry,” the rough equivalent of the Office of the Clerk of Court of our Supreme Court. The PCA has acted as Registry in 11 out of 12 arbitration cases filed under Annex VII of Unclos.

Enforcement. The award on jurisdiction, dated Oct. 29, 2015, held that despite its nonparticipation, China “is bound by any award the Tribunal issues.”

However, the Tribunal has no power to enforce its awards. It does not have any sheriff, policeman, or soldier to compel obedience to its orders. Neither does the Philippines have the military, political and economic muscle to force China to obey the Tribunal.

In several e-mails, Mario E. Valderrama, a Filipino international arbitrator, explained that the “U.S., in a dispute with Nicaragua in the International Court of Justice, already did what China is doing—refuse to participate. And what China is expected to do—ignore the award—was already done by the U.S. which even refused to negotiate with the winner, Nicaragua. Being an ICJ case, there were possible mechanisms for enforcement, including recourse to the Security Council. None succeeded.”

Standoff. On the merit, the Philippines is essentially asking the Tribunal to invalidate China’s nine-dash line for being inconsistent with the Unclos, and to determine whether the disputed “maritime features” in the South China Sea are “islands, rocks, low-tide elevations or submerged banks,” regardless of who owns or occupies them.

Specifically, the Philippines is asking that Scarborough Shoal, and eight maritime features in the “Spratly Island Group” be declared mere “rocks or low-tide elevations or submerged banks” that do not generate any exclusive economic zones (EEZ) or continental shelf (CS).

A Philippine victory would allow our country to explore and develop the mineral, oil and other natural resources around and within these maritime features because they lie within 200 nautical miles from the coasts of Zambales and Palawan, respectively, that, under the Unclos, are unquestionably entitled to an EEZ or CS.

On the other hand, China maintains that, historically, these features fall inside its nine-dash line. Hence, it claims “unquestioned” ownership and sovereignty over them, thereby justifying its construction of lighthouses, buildings and airports on some of them.

In short, the standoff would be between the Tribunal’s award of maritime entitlements to the Philippines and China’s unresolved claim of ownership over these features.

What now? As the second largest economy in the world, China can use its economic tentacles to secure international support for its claims. Its military is far, far superior than ours. As a permanent member of the United Nations Security Council, it can veto any enforcement measure. Truly, China possesses the economic, military and political clout to back its claims.

Given these realities of enforcement and standoff, the Philippines—even assuming it wins on the merit—cannot rest on its legal laurels. It must continue to use diplomacy, negotiation, back-door channeling and other peaceful modes of settling disputes.

Will an on-the-merit win solve our maritime dispute? Or will it just incense China and complicate the problem further? Meanwhile, credit for opting to arbitrate goes to President Aquino, Foreign Secretary Albert F. del Rosario, Solicitor General Florin T. Hilbay (the official Philippine “agent”), our international counsels led by Paul S. Reichler, who interestingly was Nicaragua’s lawyer in that battle with the United States, and to several advisers of our legal team, notably Justices Antonio T. Carpio and Francis H. Jardeleza.

* * *

Comments to chiefjusticepanganiban@hotmail.com

source:  Philippine Daily Inquirer

Editorial: Pressure and dialogue needed to prompt China to respect rule of law

The South China Sea became a little choppier at the end of October, when a U.S. naval vessel passed through waters close to constructions built on reefs claimed by China. It is crucial that China eases tensions by observing international law regarding maritime conduct and behaving responsibly.

By reclaiming land on reefs that are exposed at low tide, China has created artificial structures at seven spots in the Spratly Islands, known as Nansha Qundao in Chinese. Sovereignty over the islands is subject to conflicting claims from China and several neighboring countries. The structures are sufficiently large to be used for military purposes and Beijing claims 12 nautical miles, or roughly 22km, from them as part of its territorial waters.

     The U.S. sent the USS Lassen, an Aegis missile-equipped destroyer, through the disputed area, sailing her within 12 miles of Chinese-built structures on Subi Reef. The U.S. warship passed through waters claimed by China without seeking prior permission from Beijing, underscoring Washington's position of not recognizing the territorial claims to the waters surrounding the reefs.

     The Chinese government reacted angrily to what it saw as an incursion into its territorial waters, saying that it will "take all measures as needed," further escalating tensions between the two countries. The U.S., however, can claim to be acting well within the boundaries set out in international law.

     Before Chinese reclamation activities began, Subi and other reefs were submerged at high tide. Under the United Nations Convention on the Law of the Sea, territorial sea can be claimed from the baseline of an island, but not from an artificial structure built on a low-tide elevation, rendering the Chinese claims invalid.

     Even if the destroyer had sailed through China's undisputed territorial waters, China's argument is still lacking in substance. UN rules also dictate that ships of all states are entitled to "innocent passage" through the territorial waters of a coastal country providing they do not engage in any activity that compromises the country's order or security.

     In view of these points, it is difficult to see a sound legal foundation for China to take issue with the actions of the U.S. military.

Vital shipping lane

The U.S. Department of Defense has declared that this will not be the last operation of this kind and it fully intends to continue sailing through the South China Sea. Should the Chinese side try to physically block a U.S. warship from coming close to one of the artificial structures, the consequences could be severe.

     One surefire way to keep the South China Sea situation from escalating further would be for Beijing to halt its construction and land-reclamation activities, while also respecting the right to freedom of navigation set out in international law.

 The South China Sea is a vital artery for global trade, with nearly half the world's oil and liquefied natural gas passing through it. Any destabilization of the area would have an immediate and serious impact on the world economy.

     While maintaining pressure on the Chinese government will be an important factor in resolving the South China Sea issue, constructive dialogue with Beijing is also crucial and a string of major conferences in the coming weeks would provide the perfect setting.

     The ASEAN Defense Ministers' Meeting-Plus, a platform for the Association of Southeast Asian Nations and its dialogue partners on Nov. 4-5 would be one such opportunity, as would the annual Asia-Pacific Economic Cooperation summit and a number of ASEAN-related meetings toward the end of the month.

     It is essential for the U.S., Japan and ASEAN member states to take these opportunities to call for self-restraint in the South China Sea.

source:  Nikkei Asian Review

Defense ministers fail to reach consensus

Defense ministers from ten ASEAN countries and eight dialogue partners pose on Wednesday after a two-day security meeting in Kuala Lumpur failed to produce a concluding joint statement.

SUBANG, Malaysia -- After meeting for two days, ten regional defense ministers and eight key dialogue partners have failed to produce a joint statement on the increasingly tense situation in the South China Sea -- underscoring the difficulty China and the U.S. face finding common ground in the disputed waters.

     Hishammuddin Hussein, the Malaysian defense minister, told reporters that no consensus had been reached by the time talks held on the outskirts of Kuala Lumpur closed on Wednesday. Defense ministers from the Association of Southeast Asian Nations (ASEAN) and their counterparts in Australia, China, India, Japan, New Zealand, Russia, South Korea and the U.S. had been expected to sign a "joint declaration" according to a schedule distributed to the media on Tuesday.

     Philippine Defense Secretary Voltaire Gazmin told reporters that delegates had "differences in the language", alluding to wording issues, but declined to elaborate.

     Other sources said China did not want the South China Sea dispute mentioned in any joint statement, a position consistent with other ASEAN gatherings it has attended. Australia, Japan and the U.S. were among those hoping something substantive might emerge this time.

     As the chair of ASEAN this year, Malaysia instead issued a chairman's statement that noted the "effective implementation of the Declaration of the Code of Parties in the South China Sea" and early conclusion of a binding code of conduct to address territorial disputes in the strategic waters where Brunei, China, Malaysia, the Philippines and Vietnam have overlapping claims.

     Tensions in the South China Sea ratcheted up late last month when the U.S. asserted international navigation rights by sailing a well-armed warship past two of seven artificial islands created by China. The patrol was the first since China embarked on major reclamation work with the islands in 2013 to bolster its territorial claims.

     On Wednesday, U.S. Secretary of Defense Ashton Carter sat opposite, Chang Wanquan, his counterpart from China, and declared that the U.S. intends to continue with freedom-of-navigation operations in the region. Among the other ASEAN dialogue partners, the initiative is openly supported by Australia, Japan, New Zealand and South Korea.

     "The U.S. will continue to fly, sail and operate wherever international law permits," Carter said in a press briefing on Wednesday.

     "The presence of U.S. naval vessels in the South China Sea is not new. That's been going on for decades," said Carter. "What is new is the dredging and reclamation -- and the militarization.

     China lays claim to almost all the South China Sea and maintains the recent U.S. patrol violated its sovereignty.

source:  Nikkei Asian Review

UN tribunal ‘totally ignored’ China’s 9-dash line – Carpio Read more: http://globalnation.inquirer.net/130529/un-tribunal-totally-ignored-chinas-9-dash-line-carpio#ixzz3qd7x43Yu Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

SUPREME Court Justice Antonio Carpio said the United Nations-backed Arbitration Tribunal practically ignored China’s nine-dash line in its latest ruling recognizing jurisdiction on the West Philippine Sea (South China Sea) dispute.

In a forum on the maritime dispute on Thursday night, Carpio said the tribunal did not consider China’s nine-dash line, within which China claimed most parts of the West Philippine Sea, in its initial decision to take jurisdiction of the case.

Carpio said the fact that the tribunal chose to ignore China’s dash line, its most prominent evidence to show its historic right over the waters, gives a “peek” of its final decision on the dispute.

“The nine dash line was totally ignored by the tribunal…  That is an indication of how they will rule. The nine dash line will have no meaning at all,” Carpio said in the forum attended by journalists, historians and Supreme Court spokesperson Ted Te.

“I was just trying to give you the mind of the tribunal; they don’t really consider dash line as material in determining exclusive economic zone,” Carpio said.

The Philippines scored a victory at the international Arbitral Tribunal after the panel unanimously decided that it has jurisdiction over the maritime dispute between China and the Philippines involving parts of the South China Sea (West Philippine Sea).

The decision means that the tribunal, convened under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS), will hold further hearings to settle the increasingly contentious dispute.

A nine-page press release issued by the Permanent Court of Arbitration “on behalf of the Arbitral Tribunal in the Philippines v. China arbitration” clarified that the dispute was not about sovereignty, as China has claimed.

“This arbitration concerns the role of ‘historic rights’ and the source of maritime entitlements in the South China Sea, the status of certain maritime features in the South China Sea and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China in the South China Sea that are alleged by the Philippines to violate the Convention,” it said.

The panel concluded that it had jurisdiction over the case.

“The Tribunal’s Award of today’s date is unanimous and concerns only whether the Tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible. The Award does not decide any aspect of the merits of the Parties’ dispute. In its Award, the Tribunal has held that both the Philippines and China are parties to the Convention and bound by its provisions on the settlement of disputes. The Tribunal has also held that China’s decision not to participate in these proceedings does not deprive the Tribunal of jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not an abuse of the Convention’s dispute settlement procedures,” the panel said.

The tribunal expects to “render its Award on the merits and remaining jurisdictional issues in 2016.”

source:  Philippine Daily Inquirer

Pentagon chief visits Navy ship in South China Sea

In this May 29, 2003 file photo, sailors man the rails as the USS Theodore Roosevelt is maneuvered into it's berth at the Norfolk Naval Station in Norfolk, Va. Defense Secretary Carter was flying Thursday onto the USS Theodore Roosevelt, an American aircraft carrier in the disputed waterway. AP/Steve Helber, File

ABOARD THE USS THEODORE ROOSEVELT — In a symbolic swipe at China's muscular moves in the South China Sea, U.S. Defense Secretary Ash Carter visited an American aircraft carrier in the disputed waterway.

Carter, who was in Malaysia for two days of talks with Asian defense ministers, used the visit to the USS Theodore Roosevelt to amplify the U.S. view that China is making excessive claims that nearly all of the South China Sea as its territory.

Carter also signaled that the U.S. will keep a strong naval presence in the region in support of nations seeking to preserve stability. He flew aboard the carrier in a V-22 Osprey from a base in the east Malaysian state of Sabah, which is situated on the northern portion of Borneo.

Defense Secretary Ash Carter listens to a question during a news conference after the Association of Southeast Asian Nations (ASEAN) Defense Ministers' Meeting Plus in Kuala Lumpur, Malaysia, Wednesday, Nov. 4, 2015. AP/Lai Seng Sin

In announcing his visit Wednesday, Carter called it a "symbol of our commitment" to focusing more on U.S. interests in the Asia-Pacific following more than a decade of wars in the Middle East.

Malaysian Defense Minister Hishammuddin Hussein accompanied Carter to the carrier, highlighting U.S. efforts to strengthen defense partnerships in the Asia-Pacific. Malaysia is among several countries that claim a portion of the South China Sea and disagree with China's building of artificial islands.

The Pentagon also is interested in making arrangements with Malaysia for more regular access to the naval base at Sabah for U.S. aircraft carriers.

It is not unusual for a defense secretary to visit an aircraft carrier. But Carter's visit drew extra attention because of the ship's location and the tensions surrounding China's reclamation work, which Adm. Harry Harris, head of U.S. forces in the Pacific, has likened to building a "great wall of sand" with the potential for confrontations to escalate into armed conflict.

Carter and Hishammuddin were expected to observe the carrier's fighter jet operations and be briefed by Navy officers on their current and recent maneuvers.

The "TR," as the carrier is commonly called in the Navy, is the flagship of a strike group of ships that includes a cruiser, the USS Normandy, as well as three destroyers; the USS Winston S. Churchill, the USS Farragut and the USS Forrest Sherman.

The strike group had been deployed in the Middle East earlier this year and most recently conducted exercises in the Indian Ocean with Indian and Japanese naval forces. In late October the TR made port visit at Singapore. It is heading to its new homeport at San Diego.

Last week the U.S. sent a guided-missile destroyer, the USS Lassen, on a brief patrol inside the 12-nautical-mile radius that China claims as its territorial waters around Subi Reef, an artificial island built by the Chinese. The Chinese denounced the move as provocative and illegal.

Harris has said that while Vietnam, the Philippines, Taiwan and Malaysia have also done land reclamation in areas of the South China Sea where they have territorial claims, that work is dwarfed by the size and scale of China's buildup. He said on July 24 that in a period of 18 months the Chinese had reclaimed almost 3,000 acres.

Carter, speaking Wednesday in the Malaysian capital of Kuala Lumpur, called on all claimants to halt reclamation. He also noted that in a visit to the White House in September, Chinese President Xi Jinping said China is not intending to pursue militarization of its artificial islands.

"We all must mean what we say," Carter said.

The U.S. contends that under international law the artificial islands built by China are high seas. That means they are not eligible for the 12-nautical-mile zone granted to maritime features such as naturally formed islands capable of sustaining human habitation or economic life.

The issue is important on several levels, including the concerns expressed by the U.S. and others that China is trying to establish a de facto 12-mile territorial zone around these artificial islands by building airstrips and other facilities for military forces.

The issue has become one of the most vexing problems in U.S.-China relations.

By Robert Burns (Associated Press)

Breaking down the Philippines’ legal victory in the West Philippine Sea

'By unanimously voting in favor of exercising jurisdiction on the Philippines’ case, the Arbitral Tribunal effectively rejected Beijing’s efforts to sabotage Manila’s laudable legal effort'

The widely-anticipated decision of an arbitration body, formed under the aegis of the UN Convention on the Law of the Sea (UNCLOS), to exercise jurisdiction on the Philippines’ arbitration case against China represents a major victory for those who seek a semblance of rule of law in the West Philippine Sea. Interestingly, it happened shortly after (watch out for conspiracy theorists!) the United States deployed destroyers to challenge China’s illegal occupation of features across the Spratly chain of islands.

The Philippines has taken, as the Chinese saying goes, the first step in a journey of thousand miles to ensure coastal states base their claims on modern international law, not obscure claims to historical rights.Thanks to its impeccable and highly creative legal strategy, the Philippines managed to overcome a major hurdle that stood between the prevailing rule of jungle, on one hand, and the promise of rule of law, on the other, in the highly-contested South China Sea.

Though China has formally boycotted the arbitration proceedings at The Hague, and has vigorously argued against compulsory arbitration (under Art. 287, Annex VII of UNCLOS), the Arbitral Tribunal at The Hague has provided the Philippinesan unprecedented opportunity to leverage the UNCLOS as a basis to resolve maritime disputes in one of the world’s most critical Sea Lines of Communications (SLOCs).

FIRST VICTORY. File photo of a hearing at the Hague in session

A milestone

Since arbitration bodies under UNCLOS don’t have a mandate to address sovereignty-related issues, the Philippines astutely repackaged its complaint as a maritime delimitation/entitlements issue. This legal acrobatic was nothing short of a stroke of genius -- crafted by a star-studded team of renowned international lawyers carefully assembled by the Philippine government.

China tried to procedurally sabotage the Philippines’ case by citing exemption clauses under the UNCLOS (see under Art. 9, Annex VII), questioning the competency of the Tribunal to adjudicate what Beijing describes as fundamentally sovereignty-related disputes, and argued that compulsory arbitration is premature since all avenues of conciliation haven’t been supposedly exhausted.

By unanimously voting in favor of exercising jurisdiction on the Philippines’ case, the Arbitral Tribunal effectively rejected Beijing’s efforts to sabotage Manila’s laudable legal effort. Despite China’s refusal to participate in the proceedings, the tribunal judges (under Art. 9, Annex VII) have proceeded with arbitration, but will (under Art. 5, Annex VII) continue to provide Beijing the opportunity to present its case through informal channels like, say, positions papers and statements by Chinese public officials. (So we could expect China to release another position paper on the jurisdiction verdict soon.)

In a 10-page summary, the judges argued that the Philippines’ case “was properly constituted” and that the Southeast Asian country’s “act of initiating this arbitration did not constitute an abuse of process [as asserted by China].”Reassuringly, it argued that “China’s non-appearance in these proceedings does not deprive the Tribunal of jurisdiction,” and “international law does not require a State to continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted.”

In short, the Philippines was right to resort to compulsory arbitration, because negotiations with an intransigent China were going nowhere. The Tribunal, however, didn’t exercise jurisdiction on all of the Philippines’ arguments against China, opting to cover 7 items. But other items were left for either further clarification or further consideration since they “do not possess an exclusively preliminary character.”

So far, the Tribunal has exercised jurisdiction on the determination of the nature of disputed features (see Article 121) such as Scarborough Shoal as well as mischief, Gaven, McKennan, Hughues, Johnson, Cuarteron and Fiery Cross reefs; the environmental impact of China’s activities near Scarborough and Second Thomas shoals; and aggressive maneuver against Filipino vessels near the Scarborough Shoal.

Legal multiplier

Having overcome the jurisdiction hurdle, the Philippines has set an important precedence, which can be exploited by other claimant states against China. Based on my exchanges with leading Vietnamese experts earlier this year, my sense is that Hanoi has been carefully watching whether Manila can overcome the jurisdiction hurdle before seriously preparing a similar suit against China.

Now that the jurisdiction is cleared, at least on almost half of the Philippines’ arguments, we an anticipate what I call a “legal multiplier”, whereby other small claimant states such as Vietnam and Malaysia could also leverage the UNCLOS to defend their claims against a revanchist China.

Obviously, any prospective legal maneuver by other claimant states will be tailored to the specific nature of their disputes with China -- Vietnam, for instance, has disputed islands both in the Paracels and Spratlys -- as well as the texture of their overall relations with Beijing. Unlike the Philippines, both Malaysia and Vietnam are heavily dependent on China in economic terms, and none of them enjoy a treaty alliance with external powers like the United States.

But even if they won’t actually file a case proper, they can more credibly threaten China with doing so. This means that Beijing is confronting the prospect of multiple arbitration cases against its sweeping and dubious nine-dashed-line claims, which covers a huge chunk of the West Philippine Sea and much of the South China Sea -- an artery of global trade.

In the coming months, the Philippines will have to defend the merit of its arguments before the Arbitral Tribunal, while hoping that the judges will also exercise jurisdiction over its other (and more crucial) arguments, particularly with respect to the validity of China’s concept of historical rights, its aggressive posturing within the Philippines’ Exclusive Economic Zone (EEZ), and massive construction activities across the Spratly chain of islands.

Tag team

So far, the Philippines has a good chance of, at the very least, invalidating China’s sovereignty claims over land features such as Subi (close to Philippine-held Thitu Island) and Mischief (close to the Philippine-controlled Second Thomas Shoal and Reed Bank). The Philippines argues that since these land features were originally low-tide-elevations, they aren’t entitled to their own territorial sea and exclusive economic zone (EEZ).

Interestingly, America’s freedom of navigation (FON) operations close to Chinese-held features in the area is also predicated on the same argument. For Washington, it has the right to conduct surveillance operations close to Chinese-controlled features such as Subi and Mischief reefs, simply because these are --- prior to their artificial transformation by Chinese reclamation activities -- low-tide-elevations that can’t be appropriated to begin with. (READ: US warship sails near islands claimed by China)

Unlike China, America isn’t a signatory to UNCLOS -- thanks to the intransigence of a vocal minority in the US senate, who refuse to ratify the treaty -- but it actually follows its relevant provisions as a matter of customary international law. And this is why America has allowed Chinese military vessels to roam its EEZ in the Pacific Ocean, even if China refuses to reciprocate accordingly.

In effect, the Philippines and America are acting as a tag team, one deploying its muscles to counter China’s dubious claims, while the other dispatching its best legal minds to highlight China’s contravention of international law.

Nonetheless, there is no room for triumphalist celebration. The Tribunal is also yet to exercise jurisdiction on more important elements of the Philippines’ case, particularly regarding the validity of China’s nine-dashed-line claims and doctrine of historical rights as well as its aggressive reclamation activities and posturing within the Philippines’ EEZ and the Spratly chain of islands. The Philippines, the Tribunal has announced, will have “to present oral arguments and answer questions on the merits of the Philippines’ claims and any remaining issues deferred from the jurisdictional phase.”

China has the ultimate option to ignore any unfavorable outcome, and double down on its ongoing efforts to consolidate its claims across the South China Sea. But the reputational costs, and corresponding diplomatic backlash, will surely undermine China’s soft power and bid for regional leadership. – Rappler.com

The author teaches political science at De La Salle University, and is a regular contributor to Asia Maritime Transparency Initiative of Center for Strategic and International Studies (CSIS) in Washington D.C. His latest book is “Asia’s New Battlefiled: US, China, and the Struggle for Western Pacific”(Zed, London). An earlier version of this piece was published on Huffington Post.