Notice of Coverage


Request for Coverage
Reference: Prof. Harry L. Roque, Jr. 09175398096

Today, July 2, 2014, 1:30 pm at Max’s Restaurant (1123 M.Y. Orosa Street, corner U.N. Avenue, Ermita, Manila), Centerlaw and the Roque & Butuyan Law offices will hold a press conference on the recent court decisions on the following cases:

1) Rev Magnolia Mendoza vs Cebu Pacific – where the court ordered CebuPac to pay 2M in damages to Rev Mendoza.
2) On the Declaration of Unconstitutionality of the Disbursement Acceleration Program (DAP)

Media coverage is requested.

ON THE DECLARATION OF UNCONSTITUTIONALITY OF THE DISBURSEMENT ACCELERATION PROGRAM (DAP)


The Supreme Court today struck down key provisions of the government’s Disbursement Acceleration Program (DAP). The declaration of unconstitutionality of the DAP is a great victory for the Constitution and the Rule of Law. The applicable constitutional and statutory provisions on the matter of use of savings and augmentation are very clear – savings can come only from existing appropriations within the department of the government, including constitutional commissions and augmentations may only be effected if the original appropriation is found to be deficient. Thus, the Supreme Court rightly declared cross-border augmentations and augmentations of inexistent programs as unconstitutional and the withdrawal of the unobligated allotments before the end of the fiscal year for programs or projects not abandoned as unconstitutional transfer of appropriations.

Centerlaw, which filed one of the Petitions questioning the DAP before the High Court is elated at the decision of the Court. In the meantime, the Petitioners wait, as in the case of the Priority Development Assistance Fund (PDAF), the criminal prosecution of those responsible for the DAP.

The unconstitutional transfer of appropriations was one of the principal causes for the unmitigated raid of the government’s coffers during the Marcos regime under Presidential Decree No. 1177 that allowed Marcos to plunder the government in the Billions of Dollars. Unlike the PDAF where previous decisions of the Supreme Court upheld its validity, the case of unconstitutional transfers of appropriation was decided as early as 1987 in the case of Demetria vs. Alba.The present administration cannot therefore claim good faith for its unconstitutional transgression. The declaration of unconstitutionality, is therefore, not enough. Aside from criminal prosecution for technical malversation, heads must roll for the illegal expenditures as is required under Section 43, Chapter 5, Book IV of the Administrative Code of 1987.

Centerlaw Chairperson Harry Roque states, “It is a great victory for the constitution and the rule of law. Our next task is to hold those responsible for DAP criminally responsible as well as those behind the PDAF scam.”

Provisional measures


Philippine policy makers have confirmed that despite the pendency of its arbitration proceedings under the binding and compulsory dispute settlement procedure of the UN Convention on the Law of the Sea, China is hastening the building of an artificial island in Mabini reef, as well as expanding its existing artificial island in Fiery Reef.

Contemporaneous with these construction, China has been more aggressive in exercising its sovereign right to explore for oil in the disputed area leading to recent boat ramming incidents resulting in at least 10 Vietnamese being wounded. It also issued what appears to be a demand letter for the Philippines to leave all of the disputed islands and waters in the Spratlys, as well as from Panatag shoal, the latter being separate and distinct form the Spratlys.

I have written before that China’s acts are consistent with its published defense policy, which currently seeks to achieve “sea-denial capability” in what it considers as its coastal waters, the waters within the so-called nine-dash lines. Clearly, one must commend the Chinese—albeit bereft of legal merits—for their consistency in both policy formulation and implementation.

Given recent Chinese actions and the fact that contrary to the best hope of Philippine policy makers that US President Obama’s visit to the region will have a deterrent effect on Chinese expansionism, these recent events validate China’s design to expel all other claimant countries from the disputed territory on or before 2020, which is only six years away. Given this reality, it becomes imperative for the Philippines to prompt the UNCLOS ad hoc Tribunal to hasten the process of its ruling particularly on the validity of the nine-dash lines, described by a Japanese academic recently descried as a prayer for “declaration of rights” rather than an exercise of maritime delimitation, the latter being covered by a Chinese reservation to the jurisdiction of the UNCLOS dispute settlement procedure.

One manner by which the Philippines could utilize the existing arbitration as a means to curtail China from its expansionist desires is through a remedy known as “provisional remedy” provided under Art. 290 (1) of the UNCLOS. Said provision reads: “If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final decision”.

Case law is replete with instances when Tribunals deciding on issues involving the Law of the Sea have resorted to provisional measures. For instance, the ITLOS, prior to the formation of an Hoc panel headed by Filipino Florentino Feliciano in the Southern Blue Fin Tuna case, issued a provisional order against Japan from further fishing of blue fin tuna in the pacific pending resolution of the arbitration on the merits. Likewise, in MV Saga No. 2, ITLOS issued provisional measures for the immediate release of the vessel and its crew. In the latest case between Netherlands and Russia involving the arrest and charging of Greenpeace activists charged by Russia with piracy, the ITLOS also issued provisional orders for the immediate release of the activists.

The literal provisions of Art 290 of the UNCLOS on provisional remedies require only two elements for the issuance of a provisional order, to wit; prima facie determination of subject matter; two, necessity of preserving rights of the parties pending the final decision.

I suppose the reason why the Philippine legal panel did not ask for provisional measures from the start of its claim is because of China’s specific reservations to the dispute settlement of the UNCLOS which may come to play where a provisional order is asked of the tribunal. Specifically, this relates to the exercise of law enforcement activities arising from the exercise of sovereign rights. Note that the arbitration was finally resorted to by the Philippines after its fishermen were literally barred from fishing in the area of the Panatag shoal. Fishing in the Exclusive Economic Zone is an exercise of sovereign rights, which relates to the exclusive right to explore and exploit natural resources found in the EEZ. Had the Philippines asked at the onset for provisional remedy against China barring Filipino fishermen from fishing in Panatag, the controversy would have fallen on a subject matter expressly reserved by China from the jurisdiction of the tribunal: the sovereign right to fish.

But China’s recent acts have gone beyond law enforcement activities relating to sovereign rights. The building of artificial islands in low tide elevations, such as Mabini reef and Fiery Cross reef, are actual exercise of sovereign rights and do not relate to law enforcement activities. Likewise, its recent use of and resort to the threat to the use of force against the Philippines and Vietnam, coupled with its demand for both claimants to leave the area under their possession, are clear exercise of sovereignty and do not relate to the subject matter reservation of China. Moreover, China’s acts, because they are done pursuant to its disputed nine-dash lines, may be challenged on the basis that the Philippine (would be) prayer for provisional measures, and its prayer on the merits, call for declaration of rights and not maritime delimitation, the latter also excluded by China in its reservations to the UNCLOS dispute settlement procedure.

The bottom line is this: when the UNCLOS required all parties thereto to bring all questions of interpretation and application to the dispute settlement of the Convention, it could not have contemplated that state parties who opted not to participate in these proceedings should be allowed to violate provision of the Convention with impunity more so when they choose not to participate in the compulsory proceedings. Given China’s recent actuations, it’s high time that it is reigned in through a provisional measure.

China is challenging UNCLOS


Following is an excerpt from my discussion in the recently concluded 5th Annual Meeting of the Japan Society of International Law held last June 15, 2014 at Chuo University in Tokyo.

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its slew of building projects on disputed reefs in the area are aserious and belligerent violations of the UN Convention on the Law of the Sea (UNCLOS), to which it is a party.

Its refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratlys constitute a serious breach of the UNCLOS. As a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention.

The international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the “constitution for the seas”. By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory.

The view expressed recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice, that states that made declarations when they ratified the UNCLOS, China included, are “deemed to have opted out of the dispute settlement procedure of the Convention” is erroneous. Proof of this is that China subsequently made reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures. This proves that China agreed to be bound by the procedure and hence, it is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal.

More worrisome is China’s recent resort to the use of force in bolstering its claim to the disputed territories.

It has been reported recently that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its naval forces to ward off any opposition.

These construction are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings.

The Philippines initiated proceedings under the UNCLOS dispute settlement procedure to declare that China’s nine-dash lines is illegal since it is not sanctioned by the UNCLOS. The Philippine claim also asked the Hague-based arbitral tribunal that four “low-water elevations,” so-called because they are only visible during low tide, and where China has built artificial islands, be declared as part of the continental shelf of the Philippines, and that the waters outside of the 12 nautical miles of Panatag shoal be declared as part of the Philippine Exclusive Economic Zone.

China’s claim is that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. But clearly, the three specific prayers of the Philippines involve only issues of interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, this is not the subject of the Philippines’ claim.

The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory. This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim. He likened the Philippine proceeding to that initiated by Mauritius against the United Kingdom. In this case, which is also pending, the UK has argued that the dispute settlement proceedings of UNCLOS should not apply because the disputed maritime territory are generated by land territory.

The Japanese academic, Prof. Nishimoto Kentaro of Tohoku University, on the other hand, expressed reservations whether the Philippines could prevail in impugning China’s title to all four islands where it has built artificial islands, two of which the Philippines claims, should form part of its continental shelf. The Japanese academic observed that since two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan, these two may not be declared as part of the international sea bed.

He supported, however, the Philippines’ position on the nine-dash lines arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS. He characterized the Philippines position against the Nine-Dash lines as “very strong”.

Japan is also engaged in its own territorial dispute with China over Senkaku Island.

4

UP PROF: “CHINA CHALLENGING UNCLOS”


REF. Atty Romel Bagares 09166679802

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its slew of building projects on disputed reefs in the area are “a serious and belligerent violation of” the UN Convention on the Law of the Sea (UNCLOS), of which it is a member, according to an outspoken Filipino legal academic at an international law conference in Tokyo.

Speaking at the 5th Annual Meeting of the Japan Society of International law at the Chuo University Law School last Sunday, University of the Philippines professor Harry L. Roque Jr. said that China’s refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratly’s constitutes a “serious breach of the UNCLOS since as a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention”.

Roque, who is also Director of the UP Law Center’s Institute of international Legal Studies, said that the international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the “constitution for the seas”.

“By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory,” said Roque.

Debunking the view expressed recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice that states that made declarations when they ratified the UNCLOS, China included, are deemed to have opted out of the dispute settlement procedure of the Convention, Roque noted that China’s subsequent reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures proves that China agreed to be bound by the procedure. “This means that China is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal,” Roque said.

More worrisome, according to Roque, is China’s recent resort to the use of force in bolstering its claim to the disputed territories.

It has been reported recently that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its naval forces to ward off any opposition.

“These construction are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings”, Roque said.

The Philippines is the International Tribunal on the Law of the Sea to declare that China’s nine-dash lines is illegal since it is not sanctioned by the UNCLOS. The Philippine claim also asked the Hague -based arbitral tribunal that four “low-water elevations,” so-called because they are only visible during low tide, and where China has build artificial islands, be declared as part of the continental shelf of the Philippines, and that the waters outside of the 12 nautical miles of Panatag shoal be declared as part of the Philippine Exclusive Economic Zone.

Roque belied China’s claim that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. “Clearly, the three specific prayers of the Philippines involve interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, these are not the subjects of the Philippines claim, Roque added.

The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory. This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim. He likened the Philippine proceeding to that initiated by Mauritius against the United Kingdom. In this case, while it is also pending, the UK has argued that the dispute settlement proceedings of UNCLOS should not apply because the disputed maritime territory are generated by land territory.

The Japanese academic, Prof. NIishimoto Kentaro of Tohoku University, on the other hand, expressed reservations whether the Philippines could prevail in impugning China’s title to all four islands, which the Philippines claimed should form part of the Philippine continental shelf. At least two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan, and thus may not form part of the Philippine continental shelf, according to the Japanese academic.

He supported however the Philippines position on the nine-dash lines arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS. He characterized the Philippines position against the Nine-Dash lines as “very strong”.

Japan is also engaged in its own territorial dispute with China over Senkaku Island.

Prof. Roque’s power point presentation at the conference may be found in http://www.harryroque.com