China’s retaliation?

Former Secretary Raffy Alunan warned on ANC this week that China will retaliate in response to our filing of our Memorial in our  pending arbitration against China under the UN Convention on the Law of the Sea (UNCLOS). Citing the earlier move of China in banning the entry of our bananas into their territory, Alunan warned that China’ s retaliation could be in the form of further economic sanctions and worse, even sabotage. Referring to the possibility of the latter, Alunan warned that the Chinese could resort to sabotage of our power grid, since the National Power Grid Corporation is 40% owned by a Chinese company. He also warned about possible cyber attacks against our networks.  A pro-China advocate has dismissed Alunan’s warnings as unlikely. I prefer not to dismiss the warnings as in fact; history has shown that nothing is impossible in the field of international relations. Who would have thought that the United States would persist in its illegal occupation of Iraq? Neither did we expect that Russia would be so brazen as to annex Crimea?   Simply put, we have to prepare for China’s retaliations, whatever form it may take.

Alunan was actually warning about two things: one, China’s unwavering claim to the nine-dash lines; which will persist whether or not we continue with our arbitration. Second, the fact that China has not been shy in telling the world that it takes offense to the fact that it was sued before an international tribunal. Judge Xue Henquin explained in the Biennial Conference of the Asian Society of International Law that this was a “cultural” trait of the Chinese. They just don’t like to be sued.

Alunan’s warnings therefore should be qualified. Insofar as the Chinese claim to the West Philippine Sea is concerned, China will not only resort to sanctions and sabotage in order to defend its claim. In fact, its published defense policy is to develop sea-denial capability in the West Philippines Sea from 2010 to 2020. This means that it will not have second thoughts in ousting countries, even through the illegal use of force, that it views as “intruders” in the disputed islands and shoals in the Spratlys and Panatag. On the other hand, given China’s antipathy towards the arbitration, which, if the Tribunal assumes jurisdiction will surely result in judgment against it, China will apply, all sorts of pressure for the country to withdraw the same. This is where the sanctions and sabotage may come to play, as warned by Alunan.

In any case, Alunan’s warning about the sabotage on our power grid deserves serious attention. With allegations of price fixing now hounding our power producers, Congress should seriously re-examine its earlier view that power generation and distribution are not in the nature of public convenience. Had they been as such as in fact they are, the state could have exercised the necessary regulation that could have prevented these allegations of price fixing today. Moreover, power generation and distribution are franchises. They are for the public with the latter as end users. Ergo, both businesses are hence vested with the public interest and hence, their entitlement to engage in these kind of business should be in the nature of a privilege and not a right. The consequence of this would be an outright revocation of their franchise if the allegations of price fixing could be proven.

In any case, while I fully concur with Alunan that the Philippines should be weary of China’s retaliation, perhaps we should still not be too alarmed on the consequences of the filing of our memorial due on the 30th of this month.

I think what China objects to is the initiation of the arbitral proceedings itself and not the memorial per se. In fact the Chinese, through Judge Xue, considers the arbitration as a “substantive breach” of the code of conduct agreed upon by China and ASEAN. What baffles me on this point is how China can complaint that a peaceful resort to peaceful arbitration can be a breach of a treaty obligation while at the same time, resorting to the firing of water canons at unarmed Filipino subsistence fishermen as being in compliance with the said code of conduct.

One final point. Alunan said that the barring of Philippine bananas was because of the initiation of the arbitration proceedings. This is not the case. The resort to non-0-trade barriers against our bananas was an offshoot of our navy boat arresting Chinese fishermen in Panatag. Fortunately, while China can resort to this anew, it will not be as easy as it was in the past. This is because meanwhile, ASEAN and China entered into a bilateral investment agreement that grants protection to both our investments and export products. This means that it will be expensive for China to bar entry of any of our export commodities henceforth. This courtesy of the ASEAN Investment treaty with China.

(as published in the column of Atty. Harry L. Roque Jr. in Manila Standard Today, 27 March 2014)


The Chinese view on the Philippine arbitration on the West Philippine Sea

Judge Xue

Judge Xue

Participants to the recently concluded 4th biennial Conference of the Asian Society of International Law in New Delhi, India last November 15, 2017 heard for the first time the Chinese position on the Philippine arbitral claim on the West Philippines Sea dispute.

In the said conference, I delivered a paper entitled “What next after the Chinese Snub? Examining the UNCLOS dispute settlement procedure: Philippines vs. China”. My paper argued that the issues that the Philippines brought to the arbitral claims, to wit, the validity of China’s nine-dash lines, whether certain low-tide elevations where China has built installations pertain to the Philippines as part of its continental shelf; and whether the waters surrounding the territorial sea of Panatag form part of the Philippines EEZ are issues of interpretation of specific provisions of the UNCLOS and hence, were within the compulsory and binding dispute settlement procedure of the UNCLOS.

Further, while I acknowledged that China’s reservations on maritime delimitation and law enforcement activities in the exercise of sovereign rights were more challenging obstacles to hurdle, they were not insurmountable because the language of the Philippine claim does not call for a ruling involving any of the reservations made by China.

My paper assumed that the Tribunal’s jurisdiction over China as party to the proceedings was well settled. This is because China, as a party to the UNCLOS, has accepted the dispute settlement procedure of the Convention, together with all the provisions of the Convention which were all adopted on the basis of consensus.

The Chinese Judge to the International Court of Justice, Judge Xue Hanqin, was present in the conference. Judge Xue is the highest woman official in China prior to her election to the Court. Previously, she served as chief legal adviser and head of the treaties office of the Chinese Foreign Ministry and Ambassador to the Netherlands and Asean. She is said to have been groomed to be part of the Central Bureau of China’s People’s Party had she not opted to join the ICJ. While Judge Xue and I have been good friends, having served together in the Executive Council of the Asian Society of International Law for the past 6 years, I knew it would still be awkward to have her listening to my presentation.

But the most unusual thing happened after my 25-minute presentation. Judge Xue, explaining that since she was the only Chinese present in the conference because the Chinese delegates were denied visas by Indian authorities, took the floor for the next 20 minutes and for the first time expounded extensively on the Chinese position on the Philippine arbitral claim. This was unusual because magistrates, be it from domestic or international courts, will normally refuse to comment on an actual dispute, which could come to their court for adjudication. This certainly applies to the West Philippines Sea dispute.

Judge Xue raised four crucial points. Her first was that the Philippine claim involved territorial claims which is outside the purview of UNCLOS. She added though that “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash lines with no country ever questioning it until oil resources were discovered in the area.” Without expounding on the nature of the lines, she claimed that it is “not considered as a boundary line” and they “have not affected international navigation in the area.” She claimed that there was “”no international law applied in this regard to the region.”

Second, Judge Xue argued that 40 countries, including China, made declarations to the dispute settlement procedure of the UNCLOS. According to her, this means “these 40 states have not accepted the dispute settlement of the Convention as being compulsory”. She said that “when countries joined UNCLOS I, they are not deemed to have given up all their previous territorial claims.”

Third, she said that as China’s first Ambassador to Asean, she knows that the countries of Asean and China have agreed to a code of conduct relating to the South China Sea. Under this code, disputes must be resolved through negotiations and not through arbitration. She claimed that this obligation was “a substantive obligation binding on all claimant state.”

Fourth, Judge Xue explained that China opted out of the arbitration because “no country can fail to see the design” of the Philippine claim which she described as having “mixed up jurisdiction with the merits.”

She opined that the Philippines’ resort to arbitration complicated what she described as an “impressive process between Asean and China”. What the Philippine did “was to begin with the “complicated part of the South China Sea dispute” rather then with easier ones such as “disaster management.” This later pronouncement all but confirmed that the very limited humanitarian assistance extended to the Philippines by China in the aftermath of Yolanda was because of the Philippine resort to arbitration.

Judge Xue ended her intervention by exhorting the Philippines to consider joint use of the disputed waters, a matter that according to her has been successfully resorted to by China and Vietnam.

While Judge Xue’s intervention made our panel, without a doubt, the most memorable exchange in the conference, her declarations provided us with many answers that China has refused to give us.

We have Judge Xue to thank for this.

Judge Xue asked that I post this disclaimer: “Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roques presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position ofChina on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles.”

ITLOS and the Scarborough Shoal

Now that Secretary Albert Del Rosario shares my view that the Scarborough Shoal dispute should be submitted to the International Tribunal on the Law of the Sea (ITLOS) for peaceful resolution, the question is: how could the tribunal exercise jurisdiction without China giving its consent to do so?

The answer lies in the dispute settlement procedure of the United Nations Convention on the Law of the Seas (UNCLOS). These provisions are not only very long, but are recognized by scholars as amongst the most complicated provisions of the convention.

In a nutshell, the provisions on dispute settlement were made part of the “package deal” that state parties agreed to be bound when they became parties to the UNCLOS. In an effort to make all of the provisions of the UNCLOS a restatement of customary international law, each and every provision of the convention were agreed upon by states on the basis of consensus, and not just by a vote of the majority. Consequently, not only did the UNCLOS become the longest treaty to negotiate, it also became unique because of the rule that parties thereto may not make reservations on any of its provisions, including those dealing with dispute resolution.

The ITLOS jurisdiction was made compulsory and mandatory on all state parties in all disputes arising from the “”interpretation or application of any provision in the Convention”. Because state parties to the Convention, including the Philippines and China, have already referred to the ITLOS these types of disputes, China need not give its consent anew if we were to bring the issue of the exercise of sovereign rights in Scarborough shoal, Recto Bank and even parts of the Spratly’s to the tribunal.

Notice though that while Scarborough dispute, because it is one over fishing rights in maritime territory may- be brought to the ITLOS even without the consent of China, the Spratly’s controversy, on the other hand, would still require China’s consent. The reason is simple: because the Scarborough issue is purely a dispute involving water, it may be resolved wholly under the UNCLOS and as such, is an issue arising from an “interpretation” of the Convention’s provisions on sovereign rights. By definition, sovereign rights refer to the exclusive right of a state to explore and exploit all natural resources found in the waters of its Exclusive Economic Zone (EEZ), which is 200 nautical miles from the baseline of a country.

The issue in Scarborough is whether fishing by Chinese nationals there violates the sovereign right of the Philippines to exclusively engage in fishing in the area. A resolution of this issue would require the ITLOS to make a factual determination if the shoal is within the country’s EEZ and whether the shoal, as China claims, is an island. If it were indeed an island, yet an issue to be resolved would be whether it is entitled to other maritime zones or just a 12 nautical mile territorial sea. In either case, the primordial issue would be which nation should be allowed to fish in the area of the disputed shoal.

The Spratly’s dispute, on the other hand, is one that involves conflicting claims to both land and water territory. As such. UNCLOS cannot be the sole applicable law for the obvious reason that it deals only with maritime territories. The territorial dispute to the islands are subject to the rule they should pertain to the state that can prove a superior claim in terms of effectivities, or the exercise of the rights and obligations borne out of the exercise of sovereignty over disputed land territory. As such, disputes over islands are disputes beyond the “interpretation” of the UNCLOS rules on maritime territory. This is why China must consent anew to the exercise of jurisdiction by ITLOS in resolving the Spratly’s dispute. It is because conflicting claims to land territory do not involve issues of interpretation of the UNCLOS and are hence, are not subject to the mandatory and compulsory jurisdiction of the ITLOS.

Recent events have proven that we are no match to China in terms of military firepower. It was fool hardy for Filipino policy makers to think that BRP Gregorio Del Pilar, our one and only battleship, can drive Chinese fishermen away from the area. In any case, resort to the use of force to settle international disputes are prohibited by both the UN Charter and the UNCLOS. I am happy that Secretary Del Rosario has finally declared that instead of a military solution, we have opted for a peaceful and legal resolution of the dispute. In this manner, we may yet repeat the feat of a boy named David that slew a giant named Goliath.

(Published in the Manila Standard Today newspaper on /2012/April/19)

Freedoms and the Spratlys

I’m still abroad as I write this column. I am currently in Bangkok, Thailand doing a training on freedom of expression for Burmese, Laotian, and Cambodian lawyers. It is a bit of an irony that while I am training members of civil society in Southeast Asia on the value of this freedom in creating a free marketplace of ideas, I had also just come from China where I had first hand experience on the Chinese “great wall”, that is, a successful effort on the part of authorities in Beijing to insulate their people from information derived from sources such as Facebook, Twitter, and even Skype!
It is amazing that while the world has already acknowledged the value of ideas in formulating solutions to problems in modern-day societies, some states, including China, Burma, Laos, Cambodia and Vietnam have still been successful at curtailing the full development of the marketplace of ideas. The Internet used to defy these efforts as in fact; its developers envisioned it to be literally a superhighway of information. But China is evidence that even this superhighway may be interfered with. Aside from successfully filtering these hugely popular social networking sites, it has also successfully filtered sites that authorities may have felt were ”unfriendly”. Unfortunately, I found out that one such unfriendly site is my own blog, which I could not access when I was in Beijing. I could only surmise that my entries on the West Philippine Sea, my many entries on freedom of expression, and perhaps pieces I have written on anomalous Chinese contracts such as NBN-ZTE and Northrail may have something to do with the fact that 300 million Chinese Internet users, equivalent to the population of the United States, could not access my blog. How I wish there could be an appeals mechanism for banned blogs in societies such as China as I cannot help but speculate on how much more hits my blog would have had it not been banned in China.

It was also interesting to attend a conference in China on international law that featured one, and only one panelist on the Spratlys islands dispute. Prof. Robert Beckman, Director of the Center of International Law of the National University of Singapore presented the thesis that there has been a remarkable shift in the position of some of the claimant countries to the Spratlys as a result of recent in initiatives from Vietnam and the Philippines redefining their baselines on the basis of base points and baselines drawn pursuant to the provisions of the United Nations Convention on the Law of the Seas. While I have been firm in my position that it would not be in the Philippines’ national interest to utilize these optional base points and baselines — since it would mean the loss of tremendous internal waters and territorial waters subject to full Philippine sovereignty in favor of an Exclusive Economic Zone where we could only exercise the exclusive right to explore and exploit resources found thereat —Beckman was rather convincing when he argued that at least China is now alone as a renegade in the region as far as the UNCLOS is concerned. Where I differed profoundly from him is his assertion that the Treaty of Paris could not be used as basis for claiming Philippine territorial seas since the Americans only intended it as delimitation on land boundaries. This is the classic American position belied by the language of the Treaty of Paris itself when it said that the cession involves an “archipelago”. My own son’s grade three textbook on social studies defines an archipelago as a “group of islands surrounded by water”. How could the Americans then claim that what they acquired from Spain was only land territory when what it allegedly purchased from Spain was an “archipelago?

It was even more interesting to see how Chinese international lawyers reacted to the issue. One senior academic took the floor after Beckman discussed his paper and was shaking out of anger at the thought that any one would question Chinese sovereignty over the Nansha islands. One female academic from Shanghai did clarify that the nine dash lines that China had made public only in 2009 was not a delimitation line. This was a source of relief since in the absence of clarification from China, the said lines could be read as delimiting the scope and breadth of Chinese territorial sea in the disputed South China Sea, thereby depriving us even of a 12-nautical-mile territorial sea in the West Philippine Sea. Unfortunately, though, despite the opinion of the academic from China, we still do not know for sure what China is claiming pursuant to these lines.

Back to Bangkok, meanwhile, it is inspiring to know that while despotic regimes thrive in many parts of Southeast Asia, more and more individuals have opted to take an uncompromising stand in favor of democracy and freedom. We have lawyers from Laos, Burma, and Cambodia expressing the view that human rights are inalienable. Many of them in fact are in search of international remedies to address the failure of their governments to protect and promote these rights, most specially that of freedom of expression. And yes, it is a source of pride that through the Center for International Law, we have pioneered in using these international mechanisms to promote human rights in the Philippines and the rest of Southeast Asia. Given the passion and perseverance exhibited by the participants in these training sessions on freedom of expression, I make the brave prediction that despots in the region are now in peril and that their days are numbered.

Summit on KIG

Summit on Kalayaan islands

The Institute of International Legal Studies of the University of the Philippines Law Center held last Monday and Tuesday a National Summit on the Kalayaan Group of Islands and the West Philippine Sea. The summit sought to define the national interest in the disputed islands, as well as to produce a road map on how to best assert these interests.

One hundred seventy-five stakeholders attended the summit. There were representatives from different government agencies including  the  Departments of Foreign Affairs, National Defense, Interior and Local Government, Environment and Natural Resources, Transportation and Communications and the National Security Council. Also in attendance was the very colorful mayor of the municipality of Kalayaan, Mayor Eugenio Bito-onon Jr and Rep. Dennis Socrates of the second district of Palawan.


The Kalayaan Island Group and the West Philippine Sea first became controversial when France laid claim to them in 1933. The governments of Japan, the United Kingdom, and China protested this. According to France, the islands were first discovered by its protectorate, Vietnam, and were administered by a state trading company, “Dio Hwang Sas” as early as 1802. China’s claim, similarly, was on an alleged historic title beginning with its discovery on 200 BC, during Emperor Wu’s reign. It argues that the Chinese first occupied the islands as early as 618, and that the disputed islands have been charted and reflected in maps as belonging to China. It claimed that both France, and its successor Vietnam, are estopped from making claim to the islands since both countries have recognized China’s title to them at various points in history, the latest of which was a statement attributed to  Premier Phan Van Dong in an note to Zhou Enlai.


Japanese forces briefly occupied the islands during World War II. At the end of the war, Russia suggested that Japan be made to relinquish its title to the islands in favor of China. Forty-nine out of 52 countries attending the San Francisco Peace Conference protested this. The Philippines, in the same conference, asked for authority to administer the islands on behalf of the allied forces due to its security significance to the country. This was denied and consequently, Japan was made to relinquish its title to them without specifying to which country in particular.


The Philippine title to the islands is based on discovery and effective occupation of islands which are separate and distinct from those occupied by Japan during the war and from those claimed by both China and Vietnam. Merchant school owner Thomas Cloma discovered these islands in the early 1950s. At the time of their discovery, they have not been previously reflected in any map. Since then, the islands were by law made part of the Municipality of Kalayaan, appended to the Province of Palawan, made part of our continental shelf and our Exclusive Economic Zone, and subject to the grant of concessions to explore the area specially for oil. Since we are closest to the islands, the Philippines also enjoys the prima facie presumption of effective occupation of the islands, and may argue that as part of the Philippine archipelago, it has been under its constructive occupation.


The summit highlighted areas of disagreement between academics and the Foreign Affairs Department . For instance, the DFA supported the passage of the Philippine Archipelagic Baselines Law that Dean Merlin Magallona and I impugned as unconstitutional before the Supreme Court. This law appended the KIG to the main Philippine archipelago under the regime of islands. We argued that this weakened our claim to KIG because this regime is utilized only for offshore islands. By resorting to this, we have forfeited what should have been our sole entitlement as the lone archipelagic claimant, that is, to append the islands as part of our archipelago.


The DFA position, though, is the law had to be passed since compliance with the United Nations Convention on the  Law of the Seas would give us “moral ascendancy”  over China. I’m not sure though if such really matters in international relations since China, meanwhile, has recently utilized  its  “nine-dash lines” to append the entirety of the South China Sea as part of its territorial waters—in utter disregard of UNCLOS. Moreover, while compliance with the convention may lead to a favorable ruling from international tribunals that may be tasked to adjudicate on the matter, China has said that it would not submit issues involving its territory to any such tribunals. It appears that our “boy scout” mentality maybe for naught.


This notwithstanding, the overwhelming consensus in the summit was to support  the President on his most recent pronouncement on the issue. The current policy is that “what is ours belongs to us. What is disputed may be shared.” This entails an identification of areas, which are not disputed, and the possibility of joint use for those that are in dispute. This is a pragmatic policy since the Philippines should  immediately reap the harvest for areas not in dispute and meanwhile, allow us also to benefit from the wealth in areas that remain controversial. Of course, the reality is that China, as a superpower, will  ultimately determine if it will allow us to share the resources from the disputed areas. Hopefully though, President Benigno Aquino III’s current position will at least provide the beginnings of a peaceful resolution of the current dispute.


The summit is only the second activity of the Institute since I became its director for the second time this July. I was  also head of the Institute—created because  of the need to focus scholarly activity into alternative approaches or strategies in dealing with Philippine foreign policy questions—from 2004 to 2008. The IILS was established to undertake research and extension functions in international law, comparative law, and international relations, specifically in areas that affect the Philippine interests in the global arena.


This Friday at 10 a.m., at the Malcolm Hall of the UP College of Law, the Institute will feature Anwar Ibrahim who will talk on “Rizal, Ninoy and Asian Leadership”. Come early to have a seat.