Duterte to seek ‘soft landing’ with China after dispute ruling

MANILA - President Rodrigo Duterte said Thursday he would seek a “soft landing” after a United Nations-backed tribunal decides on the Philippines’ protest against China’s sea claims in two weeks.

While a favorable ruling for Manila would be a “moral victory,” Duterte said it would also put the government in an “awkward position.”

“It should be a soft landing for everybody, kung meron man, we don’t taunt or flaunt it… We will study progressively kung paano natin magamit,” he said in a televised Cabinet meeting immediately after he was sworn into office.

Duterte’s predecessor, former President Benigno Aquino III, had asked the Hague-based Arbitral Tribunal to declare as invalid Beijing’s claims in the South China Sea. A ruling is expected on July 12.

China responded to the Philippines’ legal challenge by building massive structures fit for military use on the disputed reefs.

Foreign Affairs Secretary Perfecto Yasay said the ruling could go either way and must be studied carefully.

The decision could also provoke China, he said.

“What if in the face of these circumstances, China will dig in and put us to a test? They will disallow again our fishermen from fishing in Scarborough Shoal,” Yasay said, referring to an outcrop that China has held since 2012, following a tense naval standoff with Philippine ships.

“When the decision will come, we will advise. We will study the case and inform the President and the Cabinet,” Yasay said.

China claims almost the entire South China Sea, which hosts vital shipping gains over vast oil and gas reserves.

Aside from the Philippines, its claims overlap with those of Vietnam, Malaysia, Brunei and Taiwan.

source:  ABS-CBN News

Philippines v China: facts about a much-watched legal battle

A UN-backed tribunal is expected to soon deliver a verdict on a Philippine challenge to China's claims to most of the South China Sea.

Spanning three years, two hearings, and nearly 4,000 pages of evidence, the arbitration case at The Hague is complex.

In essence, China claims most of the sea, even waters approaching neighbouring countries, based on a vaguely defined "nine-dash" Chinese map dating back to the 1940s. The Philippines disputes this.

Here are the key facts on the case:

- What is the tribunal and what are its powers?

The tribunal was set up by the Permanent Court of Arbitration, an intergovernmental organisation established in 1899. The PCA has 116 member states, including the Philippines and China. It is allowed to arbitrate on certain matters of international law, including the United Nations Convention on the Law of the Sea (UNCLOS).

The five-member tribunal hearing this case is composed of top maritime affairs experts, with the Philippines appointing one member. China waived its right to choose one arbitrator.

The tribunal has the power to set the rules of procedure and make a decision that cannot be appealed. However the tribunal and the PCA have no means to enforce the verdict, with compliance left to parties.

- What are Manila's key points?

The Philippines has presented five main claims before the tribunal:

1. China is not entitled to exercise what it calls "historic rights" over waters beyond limits defined in UNCLOS, a treaty to which both the Philippines and China are parties.

2. China's "nine-dash line" has no basis under international law.

3. The various maritime features relied upon by China to assert its claims in the South China Sea are not in fact islands and, as such, are not legally capable of generating such entitlements. China's recent massive artificial island-building does not change the situation.

4. China violated UNCLOS by preventing the Philippines from exercising its fishing and exploration rights.

5. China has irreversibly damaged the environment by destroying coral reefs, using harmful fishing practises, and catching endangered species in the South China Sea.

- Why did Manila take the action?

The Philippines said, after 17 years of negotiations with China, it had exhausted all political and diplomatic avenues to settle the dispute.

The Philippines calls international law "the great equaliser" allowing small countries to challenge more powerful states. A nation of about 100 million, the Philippines has one of Asia's weakest militaries, and its economic and diplomatic clout pales in comparison with China's.

- What is China's position and how will it react?

China denies the tribunal has jurisdiction on the issue and insists that it will not abide by the decision.

The country's first move to an unfavourable ruling will be to reject it. But no one is sure what China will do after that. Its response could range from provocative to diplomatic.

On the aggressive end of the spectrum, Beijing may take it as an opportunity to increase its construction activities and further assert its claims by declaring an Air Defence Identification Zone (ADIZ) in the sea, essentially demanding that aircraft transiting it announce themselves to Chinese authorities and follow their instructions.

When it proclaimed one in 2013 that covered islands in the East China Sea disputed with Japan, the move prompted international fury, and Washington made a point of sending warplanes through it without complying with Beijing's rules.

A more diplomatic option would be to try and mount opposition to the ruling in the UN by challenging the tribunal's legitimacy. Beijing claims that more than 60 countries back its position on settling disputes in the South China Sea through direct negotiations, and it could seek to call a vote on the issue in the general assembly. But only a handful of countries have explicitly confirmed they support China's stance.

- If the tribunal can't enforce its ruling and China has vowed to ignore it, what's at stake?

The Philippines hopes a favourable ruling will help to build international pressure on China to make concessions and reverse or stall its expansionist efforts in the sea. For instance, the United States has already said it will call on China to respect the ruling.

The Philippines also hopes a favourable ruling will give it much-needed leverage in any negotiations with China.

source: AFP

Indonesia defends opening fire on Chinese boat

Indonesia on Monday defended opening fire on Chinese sailors as an action aimed at stopping illegal fishing, as China said it had overlapping maritime claims with Jakarta.

Beijing protested strongly over Friday's clash near Indonesia's Natuna Islands in the South China Sea, saying one Chinese fisherman was injured.

The Indonesian navy insisted no one was hurt when it detained seven sailors on a Chinese-flagged vessel after firing warning shots.

It was the third such skirmish in recent months between Indonesia and China near the Natunas, which are west of Borneo, as tensions rise between Beijing and several nations over its growing assertiveness in the disputed South China Sea.

Unlike some of its Southeast Asian neighbours, Indonesia does not dispute ownership of reefs or islets in the sea with China.

But Beijing's claims to fishing rights near the Natunas and some 3,000 kilometers from its mainland appear to overlap with Indonesia's exclusive economic zone around the islands.

Indonesian Fisheries Minister Susi Pudjiastuti, who is leading a campaign to crack down on illegal fishing, defended the navy's actions.

"The Indonesian navy made the right move by maintaining the sovereignty of our seas," she tweeted. "The shooting was definitely according to procedure."

She added that "stealing fish is a crime. It is impossible that there is an agreement between countries that allows for stealing fish".

President Joko Widodo met with Security Minister Luhut Panjaitan on Monday following the clash and ordered him to defend Indonesia's sovereignty, presidential spokesman Johan Budi said.

"The president ordered him to defend Indonesia's territorial sovereignty that we have struggled to build up since our independence," he said.

But he added the president wanted this to be done without "affecting good relations". Indonesia's aggressive crackdown on illegal fishing, which began in 2014, has riled several of its neighbours.

Chinese foreign ministry spokeswoman Hua Chunying said the latest clash took place in "traditional Chinese fishing ground".

"China and Indonesia have overlapping claims for maritime rights and interests," in the area, she told a regular briefing on Monday.

She did not provide a direct answer when asked whether those fishing grounds overlapped with Indonesia's exclusive economic zone.

Indonesia's navy said it intercepted 12 foreign vessels illegally fishing which fled as their warships approached.

Navy vessels pursued and fired several warning shots, until eventually a Chinese-flagged ship was stopped and boarded, it said.

In March Chinese coastguards rammed a boat detained near the Natunas and helped it escape as the Indonesians towed the vessel to shore.

Last month, the Indonesian navy opened fire on a Chinese trawler near the islands and seized the vessel. Beijing said it protested the move.

China asserts authority over almost all the South China Sea, basing its claim on historical documents, despite partial counter-claims from several Southeast Asian nations.

source:  Yahoo!

COMMENT: China splits a leaderless, rudderless Asean

The way China split Asean at a dramatic meeting in Kunming last week has exposed a major vacuum that has plagued the regional group for a while.

Asean’s strongest link is now its weakest link. It doesn’t have a country or politician to provide strong moral and ideological leadership to get a group of 10 countries at different stages of economic, political and social development into speaking with one voice.

How different things were when the regional grouping came into being with just five members in 1967. Then, Asean had a unity of purpose: to make sure that the vacuum left behind by the US military withdrawal from South Vietnam would not be exploited by a communist North Vietnam.

Indonesia’s Adam Malik, Singapore’s S. Rajaratnam and others took the fight to the UN arguing the case to punish a united Vietnam that marched into Cambodia with impunity.

Asean’s fear was that if Vietnam was allowed to get away with its unlawful expansion, it would embolden its military to push south and create a South-east Asia that became a vassal of the communists.

It was a time when the Domino Theory was being pushed by diplomats and academics to stop the communist tide. By working behind the scenes and openly, Asean politicians and diplomats got cracking by denying Vietnam a moral victory in the UN.

Last week’s Kunming meeting showed Asean at its vulnerable worst with China using big money politics, convincing Laos and Cambodia to split Asean.

There was no joint statement. Singapore Foreign Minister Vivian Balakrishnan, who was co-chair of that meeting, did not sit down with Chinese Foreign Minister Wang Yi to talk to the media and Malaysia added to the drama by issuing an Asean statement and then retracting it. 

It seems Laos, the chairman of Asean this time round, was against the proposed Asean joint statement expressing serious concern over China’s adventures in the South China Sea.

The South China Sea has become a big irritant in relations with China. China says the sea belongs to them but the Philippines, Brunei, Malaysia and Vietnam have staked their claims, with Manila taking China to the international court in The Hague.

China’s intentions to drive a wedge in Asean are not new. In 2012, Asean foreign ministers ended their annual meeting when China talked chairman Cambodia into keeping the South China Sea off the table.

With most of the other members disagreeing, the customary joint statement was not issued – the first time this has happened in Asean’s 45-year history.

China is opening another beach head with Timor Leste, which is likely to be admitted into the Asean fold soon. China was the first one to recognise the former Indonesian state when it gained independence in 2002 and has poured money into big development projects there.

Resetting the Asean leadership button looks unlikely as Indonesia, the natural leader because of its size, is still trying to sort out the turmoil left behind by strongman Suharto’s downfall. And Singapore, whose diplomatic dance with the important players on the world stage makes it a good choice for Asean leadership, is viewed with suspicion by its neighbours.

Does all this mean Asean will continue its rudderless ride into the stormy waters of the South China Sea? Or will it wait for the problem to solve itself?

Both scenarios can only further weaken the regional grouping. The other possibility is for the regional bloc to abandon its long-held principle of reaching a consensus in its decision-making.

With the next Asean Foreign Ministers’ huddle looming in the background and with China not in the mood to compromise, Asean might have no choice but to move towards a view that the majority should not be held to ransom by the minority.

That is the stark reality facing a grouping that has become an important player in global affairs.

P N Balji is a veteran Singaporean journalist who is the former chief editor of TODAY newspaper, and a media consultant. The views expressed are his own.

source:  Yahoo!

UK official: South China Sea air freedoms ‘non-negotiable’

BRITISH FOREIGN Secretary Philip Hammond said on Thursday on a visit to the Philippines that any attempt to restrict air and sea travel in the disputed South China Sea would be viewed as a “red flag.”

China said it landed three planes over Fiery Cross Reef in recent days, prompting protests from rival claimants Vietnam and the Philippines, and raising fears it could impose military controls in the area.

“Freedom of navigation and overflight are non-negotiable. They are red flags for us,” Mr. Hammond told a joint news conference with his Filipino counterpart, Albert del Rosario, in Manila.

Mr. Hammond, whose Manila visit followed a trip to China, did not elaborate on what action would be taken if the “red flag” was raised, other than to say Britain would continue to assert its right to sail in the area.

Mr. del Rosario said he was worried that, with the test flights, China was laying the groundwork for the declaration of an Air Defense Identification Zone (ADIZ), similar to the one it declared in the East China Sea that riled Japan.

“If this is not challenged, China will take the position that the ADIZ could be imposed and whether this is done in terms of a de facto basis or whether it is official, this will deemed as unacceptable to us,” Mr. del Rosario said.

Vietnam, another claimant in the South China Sea, has also condemned the test flights as a violation of its sovereignty.

China has alarmed its rivals with its massive reclamation and construction of facilities on disputed reefs, including a 3,000-meter (9,842-foot) runway on Fiery Cross, around 1,000 kilometers (600 miles) from the southern province of Hainan.

Chinese foreign ministry spokeswoman Hua Chunying said on Saturday after announcing the first test flight that it was “civilian” in nature.

The Philippines has asked a United Nations-backed tribunal to void China’s claim over almost the entire South China Sea. It expects a decision this year.

China did not participate in the arbitration hearings at The Hague as it maintained that sea disputes should be resolved bilaterally.

“Win or lose, we will abide by the rule of law and we expect China to do the same,” Mr. del Rosario said.

Mr. Hammond said Britain would not take sides on the dispute but appealed to claimants to resolve their differences under international law.

“We recognize the tribunal and we will recognize the decision of the tribunal,” Mr. Hammond said.

Malaysia, Brunei, and Taiwan also have competing claims in the South China Sea, which hosts vital shipping lanes over vast oil and gas reserves. -- AFP

Send in the attorneys

THE ongoing arguments at the hearing on merits at the Permanent Court of Arbitration at The Hague, the Netherlands regarding the Philippines’s claims against China are a classic example of theory clashing with reality. In other words, an immovable object against an irresistible force.

Assume for a moment that the Philippines prevails and the panel rules in favor of all the legal arguments that the Philippine has presented. Assume even that the panel rules that China must not only stop all efforts at further reclamation, but that China must abandon not only its claims, but physically leave the area.

Who is going to enforce that ruling?

That is not to say by any means that the Philippines is wasting its time and should not pursue this path. However, it may be even worse than a legal judgment against someone who has disappeared. Who will kick China off the islands that may very possibly belong to the Philippines? Not the United Nations, not the United States, not Japan, not the Philippines and certainly not any of our Asean partners will physically attempt to remove China from the area.

The Philippine government has stated that once the Philippines wins at The Hague, other nations will come onboard to put heavy diplomatic pressure on China. This presumably will change China’s course of action in the region. The government is dreaming.

Diplomatic pressure for decade has not kept China from propping up the North Korean government. This same diplomatic pressure has not altered China’s course of supporting Russian foreign and military policy in both Ukraine and Syria.

It is unlikely that a Philippine win will stop the United Kingdom, Australia, France, South Korea, Thailand, Vietnam, Malaysia, India and Indonesia from supporting and participating in China’s Asian Infrastructure Investment Bank.

Richard Javad Heydarian, assistant professor in political science at De La Salle University, and a genuine expert on the subject, has written about a Philippine win that “the reputational costs, and corresponding diplomatic backlash, will surely undermine China’s soft power and bid for regional leadership.”

Economically, China is already the region’s leader in “soft” power and is not about to lose that power anytime soon unless the Chinese economy completely collapses. China is the largest export market for the countries in the Asean, equaling over 8.4 percent of Asean’s total gross domestic product. “Might” may not make “right,” but “money” can make “might.”

The Aquino administration was probably right to advance the country’s claims at The Hague. But the next administration better have a well-crafted “Plan B” ready. At this point, the Philippines may win the battle and yet eventually lose the war.

Perhaps the brilliant legal minds that are so confident of the Philippines’s prevailing before The Hague panel will be on the first ship to throw China off Panatag Shoal. Maybe a boatload of Filipino lawyers could scare China away.

source:  Business Mirror

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.