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.

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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

WHATS IN IT FOR US? (CENTERLAW STATEMENT ON THE RECENTLY SIGNED 10 YEAR ENHANCED MIITARY AGREEMENT WITH THE US)


 

Ref. Prof. Harry Roque 09175398096

What’s in it for us? This was the question asked by UP College of Law Professor Harry Roque, Chair of the Center for International Law.

As Malacanang announced the signing of a 10 year enhanced military cooperation agreement with the United States, Centerlaw expresses its disappointment over the administration’s failure to advance the Philippine national interest in agreeing to what amounts to an increased rotational presence of US troops in the country.

“If the US will clearly state that the agreement will trigger Americas military assistance if China expels the Philippines form Ayungin shoal and any of the other disputed islands in the Spratly’s, then perhaps. It makes sense to allow the US further access to our military bases and facilities. But the reality is the United States has on the contrary, declared that it will not be dragged into a military confrontation with China over the use of force in the Spratly’s’, So why did we give them further access to our territory in the first place Roque asked

The Mutual Defense Pact of 1951 stipulates that the US will come to the assistance of the Philippines if its territory is attacked by a third state. The US though does not recognize the Philippine title to the Spratly’s and Panatag, insisting that its interest in the disputed area is only to maintain freedom of navigation.

Roque explained: “This is again a one sided agreement where the Philippines allowed itself to be attacked by an enemy of the US in case the latter figures in an armed conflict with a third state. This conflict, will however, not be because of the Spratlys because the US does not believe we have title to the disputed area. The American had their cake and ate it too”.

Roque, who is also Director of the UP Law Center’s Institute of International Legal Studies also expressed the view that the agreement requires Senate concurrence because of the express language of the Constitution that the stationing of foreign troops and bases shall only be through a Treaty duly concurred in by the senate. This, Roque explained, is to ensure that the people’s representatives can ensure that the agreement is pursuant to the national interest, which involves policy making and is hence a legislative power under our Constitution.

 

 

China’s snub: lost opportunity to prove its claim to the West Philippine Sea


imagesOnly two hours ago,   the Chinese Foreign Ministry through Ambassador Ma informed Filipino diplomats  that they were rejecting the notice to arbitrate and the statement of claims which the Philippines furnished the Chinese delegation in Manila to arbitrate the legality of the Chinese nine-dash lines under the compulsory and mandatory dispute settlement procedure of the UN Convention on the Law of the Sea. This means that China will now snub the arbitration and will not participate in the proceedings.

This is truly unfortunate. China has repeatedly maintained that it exercsies” undisputable sovereignty and rights” in the waters within its  nine-dash lines. And yet, it has failed to explain the nature and the basis of its claims. The arbitration would have been the appropriate forum where it can regale the rest of the world with both its legal and factual basis for its claim to title to a greater portion of the west Philippine Sea. With this latest decision, the world is again left to wonder what, if any, China’s legal basis is.

The arbitration under Annex VII of the UNCLOS will of course proceed. The Philippine has appointed a former president of the International Tribunal for the Law of the Sea and still a sitting Judge  in the tribunal, Rüdiger Wolfrum, a German national as its arbitrator for the proceedings. The Chinese snub now makes it incumbent on the current President of the ITLOS, Shunji Yanai, a Japanese national, to complete the five man tribunal. Thereafter, it is expected that the Tribunal will sit as the lone judge of its own competence. It will have to determine whether the issues submitted by the Philippines, to wit: the legality of the nine-dash lines, the status of the waters outside of the 12 nautical miles of the Panatag shoal, and whether low tide elevations currently occupied by China in the disputed Spratlys group of islands form part of the continental shelf of the Philippines.

China;s snub, while regretful, has nonetheless made our task to resolve the West Philippines dispute somehow easier. As in all forms of litigation, an ex-parte submission is always easier than a disputed proceeding.

China Snubs Arbitration


A piece of news from xinhua weibo (facebook) an hour ago. Hong Lei spokesman of the Ministry of Foreign Affairs of  China said that Ambassador  Ma met  Philippine diplomats   today. He informed the Filipino diplomats tChina is not acceptable to the note and notice about arbitrition from the Philippine side and therefore returned it. Hong also said the relavant note and notice has serious mistakes both in facts and law.

China advised not to snub arbitration


Opinio Juris

First Signs that China Is Taking the Philippines Arbitration Seriously?
Posted: 15 Feb 2013 10:35 PM PST
by Julian Ku

As far as I can tell, the Chinese government continues to pretend as if the Philippines’ Law of the Sea arbitration claim doesn’t exist. Articles like this one suggest the Philippines government continues to wait for some official or unofficial Chinese response. The February 22 deadline for China to appoint an arbitrator is fast approaching.

There are obviously bigger things going on in the world, and in East Asia (the North Korea nuclear tests come to mind). But it is worth noting that I ran across, for the first time, an article in the Chinese press discussing the arbitration with sophistication and a very good understanding of the Annex VII process. Published in the journal “瞭望新闻周刊“ or “Outlook Newsweekly”, the article describes the views of an unnamed expert advising the Chinese government not to take the Filipino arbitration claim lightly.

The expert offers a few considerations for the Chinese government. Among other things, the expert notes that the Philippines is using this arbitration to gain support and sympathy from its neighbors (Vietnam is supporting) and its allies (US Secretary of State Kerry and the EU Parliament head support it). The claim also hypes suspicions of China at the United Nations and elsewhere.

More interestingly, the expert further notes that if China does nothing, the arbitration will still continue with the Japanese ITLOS president appointing the rest of the members. (Maybe the expert was reading Opinio Juris!). In any event, the expert advises the Chinese government to appoint an arbitrator and work hard to convince to arbitration tribunal to dismiss for lack of jurisdiction. Moreover, China can at any time during the arbitration work out a settlement agreement with the Philippines. (There is more to the article, but this is the key advice).

So is this is a sign of where the Chinese government is going? It seems unlikely that the musings of an unnamed expert will be very important, but who knows? At the very least, it seems as if there is some thinking on this issue going on in China. The 30 day clock continues to tick. Only six days left!

‘Critical date’ and Chinese hegemony


China appears to be applying the law literally. The rule is where there is a dispute to territory, the claimant that can show a superior claim to the same, be it land or water, will be adjudged as having title thereto.

In land territory, the rule is that discovery alone gives rise to an inchoate title that must be perfected through effective occupation. The latter entails submission of evidence that the disputed testimony was subject to the exercise of both sovereignty and jurisdiction. Some evidence recognized by tribunals as proof of effective occupation would include the simple act of hoisting the flag in small and desolate island territories, and such acts as the grant of concessions, appending the disputed territory to a local government unit, and proof that institutions such as the courts or civil register were functioning in the disputed area.

This is why China has recently been attempting to bolster its claim to both the Kalayaan Group of islands and Panatag. Very recently, it created a new municipality, Sansha, that would exercise jurisdiction over the disputed islands in the West Philippine Sea. This is also why it has recently built a structure on yet another disputed island within our Kalayaan group of islands,  the Subi Reef. The order to send a 30 boat armada of Chinese fishermen is also to bolster their claim that the waters have been the subject of acquired fishing rights by its nationals.

But will China’s recent acts actually result in its desired result of bolstering its territorial claims?

Not necessarily

Justice Holmes remarked that the life of the law is not logic; it has been experience. As early as the leading case of  Palmas, an arbitration where the Americans lost Palmas Island to us, the lone arbitrator came out with a judicial technique, the “critical date” which has been adopted by other tribunals. Under this technique, international tribunals resolving territorial disputes will ignore all acts of claimants to territories after  the “critical date”. This date, in turn, is the time when the controversy first arose between the parties. It is the moment in time  when the parties have advanced conflicting claims of title over the disputed territory. It is  when  the parties officially joined the issues albeit out-of-court.

In the Palmas case, the lone arbitrator disregarded evidence offered by the parties after the critical date because human experience tell us that all such evidence would be self-serving. After a controversy has arisen, it is only reasonable for both parties to strengthen—rather than weaken—their respective claims. This is why after all the claimants to Kalayaan publicly advanced their claims to the islands, all of them took steps to bolster their respective claims of effective occupation over the islands.

When is the critical date to the Spratlys?

It would appear to vary depending on which state is making the claim. France claimed the islands in 1933 . This was met with protests from China, Japan, and even Great Britain. All those that protested the claim of France hence articulated their own basis for title to the islands. It would seem that for China and Vietnam, the latter as the successor state of France, the critical date would be 1933. But for the Philippines, the critical date would be in the 1950s after Thomas Cloma claimed discovery over the islands that he described as “res nullius”—belonging to no one. The critical date for both Malaysia and Brunei, since their claims are anchored only on the regime of the continental shelf and the exclusive economic zone under the UNCLOS, would be in 1984, the year when the convention took effect.

Of course it is still important for the Philippines to repeatedly protest all these subsequent acts of effective occupation. Failure to protest may lead to estoppel. The international community recognizes international law as such because it forms part of a normative system.  Here, its normative content is the preservation of international peace and security.  The concept of “critical date” exists precisely to minimize the threat or the actual use of force. Were it not for this technique, claimant countries to disputed territory may resort to shooting whenever a claimant takes steps to bolster its claim after the “critical date.” Because of this technique, claimants are assured that acts that transpired after the controversy may mean nothing in the resolution of the controversy and hence need not result in a gunfight.

I am concerned that many of our countrymen, including those in the media, appear to be agitated with news of what China has been doing lately. Fortunately, we need not lose our cool since all these may be for naught.

Like President Aquino, let’s keep our cool.

Protest Chinese patrols


It is wrong for the government not to file a diplomatic protest over the Chinese naval vessel that was recently grounded 111 nautical miles from Hasa-Hasa in Palawan. No, the protest should not be that it grounded. Surely, a diplomatic protest cannot address the Chinese mariner’s obvious lack of familiarity with the dangerous waters surrounding the Spratlys group of islands; a fact that militates against their so-called ancient claim to the area. The protest should be over what the navy vessel was doing in our waters in the first place: patrolling.

Sovereign states could not exercise sovereignty and jurisdiction in the exclusive economic zone since their so-called sovereign right is limited to the right to explore and exploit the resources found thereat.  Still, foreign naval vessels, particularly in disputed territory, have no business patrolling the same. It should have been Philippine vessels from either the coast guard or our navy that should have been patrolling these waters in the first place.

The failure to protest the activity of Chinese vessels militates against our own claim because underiInternational law, the principle of estoppel has not only been consistently applied; it has also been ruled to be sufficient to extinguish title to territory even if one originally existed. For instance, in the case of the Preah Villar temple which was then disputed between Thailand and Cambodia, the International Court of Justice ruled the temple to be within the territory of Cambodia because.  In the early 1900’s, Thai authorities did not protest a map showing the temple to be in what was then the territory of France and today, of Cambodia.

Likewise, estoppel has been applied in the Eastern Greenland case between Norway and Denmark. There, the Permanent Court of International Justice cited Norway’s recognition of Danish title over Eastern Greenland when it recognized such title as embodied in the so-called Ilian declaration. In fact, estoppel, defined as a rule of evidence whereby a person or a state is precluded from denying the truth of a statement of facts he or it has previously asserted -has been accepted as a general principle of law in international law. Further, estoppel has oftentimes enabled states to prove a superior claim to disputed territory where both claimants are able to invoke almost identical evidence of effective occupation. It is hence the legal principle that has tilted the balance in favor of one state in a dispute where both parties have equiponderance of evidence.

The fact that we have recently been filing quite a number of protests over recent Chinese aggression and hegemony in the Panatag Shoal should be of no consequence. The law, after all, does not put a cap on how many of these protests we can file. We should not limit the number of these protests. Instead, we should always protest when there is a legal ground, and document them properly since they constitute strong evidence of title. This is because they form clear evidence that we have been asserting our claims through the means recognized by diplomacy as the proper form: a diplomatic protest. It is when we stop making these protests that we may be ruled as either abandoning our rights, or sitting on them.

In any case, this is not the only time when we should have protested Chinese incursion into our territory. Not too long ago, the international media reported a collision between an American destroyer and a Chinese submarine off the coast of Zambales.

Instead of protesting that incident, the Arroyo administration opted to sweep it under the rug and neither confirmed nor denied the incident. Perhaps, what worried the former administration was adverse public opinion that the Visiting Forces Agreement — that has enabled American ships to dock and navigate through our waters — could in fact increase the probability of military confrontation between the world’s lone superpower and the region’s military giant. While we do not know exactly where that collision occurred –as the Arroyo administration in fact claimed that it took place in international waters — the reality is that bereft of underwater scanners and facilities that would enable us to determine the presence of Chinese submarines, we will not know if they are in our waters. Note that while all submarines could exercise innocent passage even in our territorial waters, defined as 12 nautical miles from our coast.  Still, the requirement is that they must surface. In any case, the presence of submarines and other military  vessels patrolling disputed EEZ are not innocent. They constitute a threat to our national security.

What is clear is that once more, our policy makers opted to be very Filipino in their recent conduct:  opting not to add further coal to a burning fire. The only problem here is meanwhile, our adversary appears happy to pour gas onto the flames.

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