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

Scenarios for the accused


Now that it appears imminent that the Motion for Reconsideration from a finding of probable cause against “Tanda”, “Sexy” and “Pogi” would be dismissed, what are some of the likely scenarios that may happen soon?

First, on the issue of how the three Information will be heard by the Sandiganbayan, it is certain that these would be raffled separately since the three were indicted for separate acts, not as part of a conspiracy. Chances are that three separate divisions of the Sandiganbayan will then hear the cases separately.

Second, on the issue of detention, it appears that all three would respect the jurisdiction of the Sandiganbayan when and if it issues warrants of arrest against them. I predict all three would surrender. Nonetheless, as I have repeatedly complained, the rich and powerful are never detained in local jails and made to share a small cell with at least 39 other inmates. Instead, it is almost inevitable that they would be detained in special detention facilities. After all, even former President Gloria Macapagal Arroyo agreed to have Senator Jinggoy Estrada detained in an office of the Philippine National Police in Camp Crame. It is a foregone conclusion that all there senators may be housed in similar offices.

Former Senate President Juan Ponce Enrile, owing to his advanced age, should also have no problem getting a medical certificate attesting to an illness. He will probably get hospital arrest not only because of precedents, but also because of real health issues.

It is almost certain that all three accused would file motions to allow them to post bail to secure their arrest pending the hearing of their cases. The rule is that bail is a matter of right except in capital offenses where the evidence of guilt is strong.

I have written before about the innovations introduced by the Supreme Court en banc that now makes it mandatory for judges to rule on motions for bail expeditiously. Unlike, therefore, the Ampatuans who have been waiting for almost five years before a ruling could be made on their petitions for bail, it is now certain that the rulings on the three senators would be made anywhere from six months to a year.

What are the chances for the three to be granted bail?

Objectively, JPE appears to be certain to be granted bail since there is no direct testimony that he received money directly from Napoles, nor that be benefited from the allegedly malversed public funds. Jinggoy’s fate will depend exclusively on the weight that the Court will give to the lone testimony of Ruby Tuason. While she will testify that she personally delivered money to Sen. Jinggoy, her testimony is tenuous since she does not even know how much she delivered. Anent Senator Revilla, his fate will depend on the weight that the Court will give to handwriting experts who will testify that all the signatures purporting to be those of the senator are in fact forged.

I predict a 75 percent chance for bail for Enrile; and 50 percent chance of bail for both Estrada and Revilla.

In any case, all three accused are entitled to the presumption of innocence and it is the burden of the Special Prosecutors of the Office of the Ombudsman to prove that they are guilty beyond reasonable doubt. Given though that the Ombudsman has had a below-10 percent conviction rate, I doubt if any of the accused are really losing sleep over their cases.

Forgive me for being pessimistic. But if the prosecution for the gruesome murder of 58 people have been moving at a snail’s pace, how much more for a crime that does not involve murder?

The bottom-line is this: unless and until the five pillars of the country’s criminal justice system get their act together, no rich or powerful individual will be punished for their criminal acts.

***

I cannot help but admire the Vietnamese for the manner that they have been standing up to China. When the Chinese hosed their vessels, their vessels hosed them back, even if they were terribly outnumbered. And yes, I also admire the fury of its people. I am not condoning the senseless targeting of Chinese businesses in Vietnam, many of whom turned out to be Taiwanese-owned anyway. But the fact is ordinary people are infuriated at China’s expression and they have made their views widely known, especially by the policy makers in Beijing.

Will the Filipinos have the same fury as our Vietnamese brothers? Probably not. When China took control of Mischief Reef away from us, our leaders cried and whimpered but there was nothing heard from the general public.

Its high time that we Filipinos take the issue of our national territory personally. At stake after all, courtesy of the estimated 2 billion to 200 billion barrels of oil in the contested area, is the economic future of all our descendants.

The Vietnamese are correct: the West Philippine Sea is a personal issue to those being bullied.

This post first appeared in http://manilastandardtoday.com/2014/05/22/scenarios-for-the-accused/

Philippine Interest in the US President


So, President Barack Obama has defeated his challenger, Governor Mitt Romney.

Outside the sheer excitement over the neck-and-neck race, what exactly is at stake for us Filipinos in this US electoral exercise?

I say plenty. To begin with, it’s the fact that the US elections are taking place. We have patterned our representative democracy after the US’. We see that the system works. Perhaps, we could learn more from this latest exercise in terms of how the elections were actually conducted. While it has been bitterly fought, note that both parties stuck it out on the basis of issues.

There was no personal mudslinging and no vote buying as well. Note, too, how the political parties operate. For many Americans, they are often born into their political party.  They may cross-political lines later in their lives – but the point is that they have strong political parties owing to the fact that politics in the US is still issue-based. How I wish our politicians could learn from this.

Then, there are the few issues that divide the two presidential candidates. Here, I disagree with columnist Billie Esposo who emphatically wrote that there is a divide between Obama and Romney on the issue of Iran. Truth to tell, on the basis of public pronouncements, both candidates said the same thing about Iran – they would heighten efforts to isolate Iran in order to compel it  to drop its ambitions to be a nuclear state.  BOTH, though, have declared that a military strike is still an option. If there will be the use of force against Iran that could drag the world into a third world war, it is not because of differences between the two candidates but because of the consistent American policy – that the US will not hesitate to resort to unilateral force against what it perceives as threats to international peace. Unfortunately, the folly in this policy is that it goes against the UN Charter which provides that use of force can only be resorted to by way of self-defense or when authorized by the UN Security Council.

Where the few policy differences relevant to us here in the Philippines lie are in the fields of immigration, human rights, reproductive health, and yes, China.

President Obama has already issued an executive order halting the deportation of children of illegal aliens who have not been convicted of any crimes and have not attained the age of 30. Romney has pledged to make life hell for illegal aliens. Full stop. Obviously, this is the single most important issue for us because we are today the second largest ethnic group in the US, with presumably the second largest number of illegal aliens in the US. Here, a Romney presidency would have caused sleepless nights to many Filipinos in the US and here. Now we can all sleep soundly.

Next is the role of human rights in US foreign policy. Here, President Obama has denied us American military assistance until such time that the Aquino administration has addressed the culture of impunity brought about by thousands of cases of extralegal killings and enforced disappearances. Here, I’m sure the PNoy administration would prefer a Romney presidency because either way you look at it, Aquino needs the military assistance divorced from the issue of human rights. Aquino has referred to the issue of human rights violations as “left propaganda”.

Then there’s reproductive health. Here, the Philippine Catholic Church and their devotees would like to see a Romney presidency since he has vowed to put an end to all federal funding to artificial birth control, including abortions.  In fact, he has gone on to state that he would want the US Supreme Court to overturn Roe vs, Wade, the landmark case that legitimized abortions in the US. Here, I am so sure that the CBCP, Tita De Villa and Jo Imbong are still praying for a miracle to bring about a Romney victory.

Finally, there is the issue of China. Obama has consistently said that the US interest in the West Philippine Sea is to safeguard freedom of navigation in area. This is why he has frustrated PNoy since he has said that he will not get involved with our intramurals with China. Romney, on the other hand, would probably be the friend that PNoy wants against China. The latter views China’s recent economic and military rise as a threat to the United States. A Romney presidency would have been  more aggressive against China. Let us hope now that a more aggressive stance is unnecessary with a new Chinese leader, as well.

America: The former superpower


America is now an ex-superpower. First, it ceased to be the biggest economy in the world. It is now only the second-biggest economy. China has long overtaken it and the tables have been turned. Communist China has not only become an economic tiger; it has also become the biggest creditor of capitalist America.

And the decline of superpower America goes beyond economics. With China’s recent foray into bullyism (yes, I invented that word) in the West Philippines Sea, it has allowed China to challenge its pre-eminence in the Pacific front. This used to be its bastion since World War II. This was why despite granting the Philippines nominal independence, it insisted on utilizing the country as an unsinkable military carrier with take-off points at Clark and Subic. These were bases that used to be its biggest military installations outside the mainland US.

Today, it is longer the US Navy that is feared in this part of the world. It is now the Chinese Navy that lords it over in these waters. First it took possession of Mischief Reef in the disputed Kalayaan groups of islands from Filipino soldiers then assigned in the island. Today, it has effectively driven away all Filipino presence in Panatag Shoal, an area that is literally the backwaters of the province of Zambales. And if the respected journalist Chito Santamaria is correct, China is not just interested in the fishing waters around Panatag. The real battleground, according to Chito, is Recto Bank where Manny Pangilinan is about to drill for oil.

Amidst this newfound Chinese expansionism, where is America? Well, at the first sign of a conflict, Hilary Clinton declared that it would take a neutral stance and urged a peaceful settlement of the dispute. Later, when the standoff persisted, she declared during a US Senate concurrence hearing on the UN Convention on the Law of the Sea that China’s claims to the vast waters of the West Philippine Sea exceeded what is allowed under international law. And recently, when President Noynoy Aquino went to the US begging anew for help, no less than President Barack Obama was clearly non-committal. This is apparent in a White House release after the meeting between Obama and PNoy stating, among others, that the two leaders merely agreed on “firm support for a collaborative diplomatic process among claimants to resolve territorial disputes in a manner consistent with international law and without coercion or the use of force.”

Make no mistake about it. Uncle Joe can’t be counted upon to deal with China- the bully.

Central to American foreign policy is that as the lone superpower of the world, it can be counted upon to maintain peace and order in this planet. At the very least, if its economic woes have become so bad that it can no longer play the role of superman, it should have sufficient resources to stand by its long-standing ally when needed. But no, nowadays, the American position is for its allies to swim or sink. Full stop.

This is not to say that the American position is wrong. I for one have never believed that mother America will ever come to our rescue solely to defend our interests. This is why I have been a long supporter of the likes of Claro M. Recto and Jovito R. Salonga, who believed no one can be counted to uphold Philippine interest but us -Filipinos.

Still, this lackadaisical manner by which America seems to regard the recent threat of Chinese expansionism is a major change in its foreign policy.

Make no mistake about it. While America couldn’t care less about the West Philippine Sea, it will come back to Subic and Clark not to defend us; but to uphold its own national interest. This is why it is in the process of sending 60 percent of its navy forces to Asia. Malacañang, I’m sure would want to take credit for this. But nope, this has been in the offing even before our recent controversy with China. At most, perhaps, the actual deployment of these forces to Asia was hastened by the dispute. They will come though not because Scarborough and the Spratly islands are ours. They will come because China’s claims to these territories may precisely hinder deployment of their ships into these waters.

We, unfortunately, are irrelevant to their policy.

Anger as Philippines says will skip Nobel ceremony -AFP


Anger as Philippines says will skip Nobel ceremony
AFP – Thursday, December 9SendIM StoryPrint
MANILA (AFP) – – The Philippines confirmed on Thursday it would skip the Nobel peace prize ceremony for Chinese dissident Liu Xiaobo following pressure from China, triggering anger from human rights advocates.

The decision by one of Asia’s most vibrant democracies to stay away from Friday’s event in Norway comes as it seeks to build stronger military and economic ties with communist China.

“It is confirmed that there will be no Philippine official at the ceremony,” Department of Foreign Affairs spokesman Eduardo Malaya told AFP.

He said Manila’s envoy to Oslo, Elizabeth Buencuceso, was out of Norway on an official consular mission.

“Our ambassador to Norway has a scheduling conflict,” he said.

However two senior government officials who did not want to be named said the move was meant to appease China, which had repeatedly warned governments around the world that ties would be harmed if they attended the ceremony.

China reacted furiously to the decision by the Nobel Committee to award this year’s peace prize to Liu, who was jailed for 11 years last December on subversion charges after calling for reform of one-party communist rule. Related article: US pressured China to release dissident: cables

“We do not want to further annoy China,” said a senior diplomat at the Philippines’ foreign affairs department who asked not to be named.

President Benigno Aquino’s spokesman, Herminiano Coloma, declined to comment when contacted by AFP about the decision, referring all queries to the foreign affairs department.

But another presidential palace official said Aquino “did not want another irritant” in his government’s ties with China.

The Philippines has been working hard to repair diplomatic ties with China following the botched ending of a bus hijacking incident in Manila that left eight Hong Kong tourists dead in August. Related article: Rights groups push for Nobel laureate’s release

The Philippines is also seeking to buy military hardware from China — the nation’s armed forces chief, General Ricardo David, is in Beijing this week on a procurement mission.

Trade between the countries has been expanding since the 1990s, with China now the Philippines’ third largest trading partner next to the United States and Japan.

Human Rights Watch said it was “shocked and disappointed” at the Philippine decision, especially as the country had always been a leading supporter of Myanmar’s democracy heroine Aung San Suu Kyi, herself a Nobel laureate.

“The Philippines prides itself on its democratic values, which is why it is shocking to see this government turning its back on Liu Xiaobo’s non-violent struggle for free expression in China,” said Elaine Pearson, the group’s deputy Asia director.

“By declining the invitation to attend the Nobel Peace Prize ceremony, the Philippines is failing to live up to its promises to promote human rights in Asia.”

Lawyer Harry Roque, chair of the Manila-based Center for International Law, also expressed outrage.

“We should not have allowed China into bullying us not to attend the ceremony. This is an abdication of our moral duty to the world as the source of people power, of liberal democracy,” Roque told AFP.

“That was a regrettable decision, because in effect what we did was to support an affront on freedom of expression.”

Calls to the Chinese embassy spokesman in Manila went unanswered on Thursday.

Vietnam and Afghanistan are other Asian nations to have declined to attend Friday’s ceremony in Oslo. Related article: Pressure mounts on Serbia to reconsider Nobel boycott