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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‘Tongpats’ and the Spratlys


It’s a relief to have a President who is standing up to a bully. Whereas GMA sought to give away Philippine territory in exchange for anomalous Chinese deals, PNoy, even with absolutely no military firepower, has advanced the Philippine claim to the Kalayaan group of islands and the West Philippine seas firmly and without hesitation. This group of islands in the West of the country was described in maps merely as “hazards to navigation” until the 70’s. That was when we discovered oil in the area. The science is since oil and natural gas products are found in the continental shelf, the soil and sub-soil constituting the prolonged landmass of the Palawan archipelago, it may be that further petroleum resources are located in the other portions of the continental shelf beneath the rocks and islets constituting the Spratlys group of islands. This explains why China, Vietnam, Brunei and Malaysia all proceeded to lay claim to part or the entirety of the Spratlys. The title of the Philippines to the islands is because of discovery coupled with effective occupation. While it was a fact that many of the disputed islands, including Spratlys Island itself, which Taiwan has referred to as “Itu Iba”; were then under Japanese control during World War II, Japan nonetheless renounced its title to them without specifying to whom it was relinquishing the title. This prompted Thomas Cloma, a Merchant Marine school owner, to claim title to the islands by way of discovery of islands that were “terra nullius”, or without an owner. This claim to discovery was then espoused by Diosdado Macapagal. We have since by law, created the Municipality of Kalayaan as the local government for the area, and appended it to the Province of Palawan. We have also since performed acts indicating the exercise of sovereignty, referred to as “effectivities”. These would include the building of military installations on islands under our control and the award of concessions to explore for further mineral deposits in the area. While our mode of claiming title to the Spratlys may not be iron-clad, as in fact, it is hinged exclusively on the assumption that it was rendered “terra nullius” with the Japanese renunciation, still, the Philippines is the only country which has scientific evidence to prove that bulk of the contested area constitute its extended continental shelf. This much we have proven in the UP Law Center’s Institute of International Legal Studies Project on the Extended Continental Shelf. Further, as we are the closest claimant to the disputed islands, we are the only one that can claim a presumption of ownership over them. And as the only archipelagic claimant country, we have a monopoly to the claim that the islands, rocks, islets and waters surrounding them form part of our archipelago. The claim to title of China and Vietnam appear to be even more porous than ours. To begin with, both countries rely on ancient historical title, which of late, has been ruled by international tribunals as almost impossible to prove. China for instance, cannot prove an intent to possess the islands in the concept of an owner because sovereignty was foreign and unknown under its Confucian legal system. Likewise, Vietnam’s claim to historical title is impossible to prove using modern day rules of evidence given that very old records cannot be authenticated precisely because the persons who executed them are no longer around to identify them. Malaysia and Brunei, on the other hand, lay claim to portions of the area solely as part of their respective continental shelves. Of course, it is still our wish that the Spratlys controversy is resolved peacefully and preferably through negotiations, binding mediation, arbitration, or even through judicial means, either before the International Court of Justice or the United Nations Tribunal for the Law of the Sea (UNTLOS). Meanwhile, it imperative that other than showing political will, that this reform-minded PNoy Administration undo GMA’s machinations which collectively, weaken our claim to the disputed area. First, there is the Joint Seismic and Exploration Agreement with China. As far as I know, the only way to prospect for oil in the continental shelf is through seismic testing. As such, these tests can only be conducted by Filipinos or through FTAA’s, if foreigners are involved. The Joint Seismic agreement, apart form violating the Constitution, will weaken our claim in the same way that an owner of disputed property weakens his claim when he agrees to use and exploit the disputed property with his adversary. Second, there is an urgent need to repeal the 2009 archipelagic baselines law, which my good friend and ally, Senator Sonny Trillanes, authored while behind bars. This law incorporates the Spratlys under the so-called “regime of islands”. A state only adopts this regime for offshore islands, or islands located so far away from its mainland. Obviously, by resorting to this method, we undermine what could be our strongest claim to the islands: that is, that not only are they proximate to us; but more importantly, they form part of our archipelago. Third, there is need to annul all the anomalous Chinese deals that were given to the past administration as consideration for our national territory. To those who have been asking how the “tongpats” could be recovered by the project proponent of the National Broadband Network, the answer is now clear: it is the Spratlys, Diwalwal, North Davao and Northrail, all of which were granted by the past administration to Chinese companies. Tongpats for national territory: unforgiveable!

FRONT SEAT AT THE AMPATUAN MASSACRE TRIAL


It was another day of revelation and surprises on the continuation of the Ampatuan massacre case. The former Ampatuan houseboy, Lakmodin Saliao (“Lak”), took another three hours to detail what transpired after the November 23, 2009 massacre. It was a testimony that sounded like chapters in a mystery novel replete with allegations of bribery, perjury , and plots to kill. The difference of course was that his testimony was not fiction.

According to Lak, the Ampatuan patriarch, Andal Ampatuan Sr immediately ordered the release of 200 million pesos immediately after the massacre. While he did not detail how the 200 million was actually disbursed, he did say that further sums were ordered released for specific purposes. For instance, he detailed how the older Ampatuan ordered the payment of 10 Million Pesos to, among others, former Secretary Jesus Dureza apparently in exchange for his immediate release “sa pagkakarelease ng rebellion”, which I interpreted to mean upon the release of the old man from detention because of what they anticipated would be a ruling that the rebellion charges against him will be dismissed for lack of merit. Apparently, the clan may have thought that only rebellion charges would be filed against him because murder, pursuant to the People vs. Hernandez ruling, is absorbed in a charge for rebellion. If my interpretation of the answer of the witness is correct, this would confirm what many thought all along: that the declaration of martial law in Maguindanao last year was a pretext for absolving the Ampatuan clan. Some one apparently had the bright idea that since murder should be absorbed by rebellion, a dismissal of the rebellion charges would mean absolution for the Ampatuans.

The witness also implicated four (4) NBI agents who allegedly received 10 million from the Ampatuan patriarch intended to bribe Maguindanao Chief of Police Sukarno Dikay and suspect Rainier Ebu into recanting their previous statements implicating the Ampatuan clan. Early on, the witness also related how at least 3 members of the bar including, Cynthia Sayudi, Solicitor-General for the ARRM and Atty Pantojan participated in a “moro-moro” to feign illness on the part of Andal Sr. to warrant his hospital arrest in Davao City. Another lawyer, a Public Prosecutor, Thadeus Samson, was allegedly paid by Andal Sr. 5 thousand pesos for every document that he would affix his signature to. At the latter part of the testimony, the ARMM Solicitor-General was said to have ordered the witness to lure Atty Pantojan into attending a meeting in Davao City where the lawyer would be killed and the blame would be pinned on the Mangundadatus.

Immediately after the hearing, my clients instructed me to immediately file disbarment proceedings against all three lawyers for unethical conduct. They also instructed me to make representations with the Anti-Money Laundering Council to open the accounts of the Ampatuans as clearly, if the testimony of the witness is true, the Ampatuans could not have afforded to distribute up to 400 million pesos even on the collective salaries of all the Ampatuans for all the government posts that they have been holding. I was also asked by my clients to coordinate with the public prosecutors so that all those implicated by the testimony of Lak should be indicted for their criminal acts.
My clients expressed elation at the fact that the trial is finally moving 10 months after the massacre. They specially expressed relief that GMA is no longer in power as according to them, the trial today that implicated very high officials of the Arroyo government could not have happened in the past dispensation. In any case, kudos to the whole nation for finally eliminating GMA and her cohorts from power thereby enabling the wheels of justice to finally turn, although very slowly at that.
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The dispute over the Spratlys group of islands, a group of rocks and islets described in maritime maps as “dangerous grounds”, has become controversial anew like a sleeping monster rising from a temporary hiatus. Last month, the United States, which considers the islands and the waters around it as part of the high seas, warned China against acting unilaterally in resolving the dispute. The latter in turn retorted that the statement of the US was an interference with its internal affairs since it treated the Spratlys as part of its territory. For the first time, Indonesia, which is not even a claimant to the Spratlys, broke its silence and asked China to adopt a code of conduct on the Spratlys with the Association of Southeast Asian Nations. I was in Singapore when the Strait Times correctly observed that Indonesia, normally a passive observer to this controversy, suddenly spoke up. The Strait Times opined that the significance of the Indonesian response was precisely because China now has bundled the Spratlys together with Tibet as its “internal affair”. In the case of Tibet, China has not hesitated in utilizing force in justifying its continued military occupation of the land of Dalai Lama. It was further reported that China , using a submarine, planted its flag in the disputed continental shelf of the Spratlys said to contain large deposits of oil and natural gas. China was guided by international law principles that recognized the raising of a flag in a desolate and unoccupied territory as an evidence of the exercise of sovereignty. Never mind of course that its planting of its flag in the soil and subsoil submerged by water is unprecedented in world history.

The Spratlys dispute is a disaster waiting to happen . P Noy needs to give priority to the settlement of this conflict under international law as clearly, we are no match to superpower China in the event of a military confrontation. Perhaps it is high time that the Philippines submit this dispute to international adjudication either before the International Court of Justice or the UN Tribunal on the Law of the Sea. Obviously, China’s recent flexing of its muscle on this dispute, after many years of bilateral and multilateral negotiations, is clear indication that the dispute could no longer be settled on the basis of negotiations. #30#