Provisional measures


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

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

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

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

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

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

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

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

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

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

China is challenging UNCLOS


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

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

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

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

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

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

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

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

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

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

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

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

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

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

4

UP PROF: “CHINA CHALLENGING UNCLOS”


REF. Atty Romel Bagares 09166679802

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.”

Plunder and Malampaya: Justice delayed is justice denied


photo-7In February of 2004, civil society led by Bishop Pedro Dulay Arigo of Palawan, Cesar Sarino, the late Dr Gerry Ortega, the late Dr. Jose Antonio Socrates, Prof. Oscar Evangelista and Cesar R. Ventura and I filed suit before the Supreme Court questioning the legality of President Gloria Macapagal Arroyo’s use of the government proceeds from the Malampaya natural gas field. Petitioners, before going to the Supreme Court, had previously filed suit in the RTC of Palawan and the Court of Appeals, pursuant the hierarchy of Courts.

The petitioners’ complaint was simple. Under the 1987 Constitution, local governments were given a fair and equitable share in the revenues derived from natural resources found in their area. Under the Local Government Code, this share was defined as 40 percent of all gross government receipts from these resources. Palawan civil society then argued that a provisional sharing agreement entered into by Mrs. Arroyo and the then-local leadership of the province providing that Palawan shall be entitled to 20 percent net of all government revenues was unconstitutional.

This was on at least four grounds: First, the interim sharing agreement amended the legal provision on how much the entitlement should be: from 40 percent of gross to 20 percent net; Second, it amended the local government code in the manner by which it was to be shared by the barangay, municipality and province where the resources are found. Under the law, the province shall have 20 percent of such revenues, while the municipality and the barangay are to have the lion’s share of the revenues: 35 percent and 45 percent, respectively. The sharing agreement called for projects to be identified by the two representatives of the province, its governor, and the mayor of Palawan. Third, the Code provides the manner by which the money was to be spent: 80 percent of all sums should be applied to lower the cost of electricity in the province, while the remaining 20 percent should go to local government projects and for livelihood. The Interim sharing agreement made the fund additional pork barrel for the two representatives of the province and its other local officials. The fourth argument of the petitioners would prove to be perhaps the most important argument in promoting good governance. Petitioners argued that the manner by which Mrs. Arroyo entered into the agreement was unconstitutional because she spent the funds without congressional authorization.

In entering into the questioned sharing agreement, PGMA invoked the provision of a little known Marcos Presidential Decree 910, section 8 of which reads: “—Section 8. x x x production share on service contracts and similar payments on the exploration, development and exploitation of energy resources, shall form part of a Special Fund to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed by the President.” Petitioners argued that this violates the rule that no money shall be paid out of the national treasury without appropriation by law.

PGMA, on the other hand, argued that because of the foregoing PD, all government revenues earned from Malampaya are in the nature of a special fund which can be disbursed at the pleasure of the President.

It was this argument that later led COA to conclude that at least P2.3 billion of the Malampaya funds were misused by local government officials of Palawan including its fugitive ex-governor Joel Reyes and the defeated Baham Mitra. Unfortunately, it was this interpretation that also led to the disbursement of the first tranche of P900 million Malampaya release that COA now says were plundered by Napoles and her cohorts. Ironically, the first tranche released to Napoles was authorized only two days after our oral argument in the Supreme Court on November 24, 2009. Worse, it is this interpretation that led to the release of a further P26.3 billion of Malampaya funds which early reports now say may have been released and malversed by Arroyo shortly before the 2010 elections.

It comes hence as no surprise that much of the scandal unearthed by the Napoles revelations involve the Malampaya funds. To begin with, the popular clamor that there “shall be no taxation without representation” was based on the idea that the people’s representatives should authorize all public spending and shall exercise oversight on the manner the sums are spent. Because the Malampaya funds were spent without congressional authorization, and hence without oversight, it was spent for any and all purpose that the President desired, And when you have a kleptomaniac for a president, that meant spending the money all for naught.

I cannot help but also blame the Court for this fiasco. The Malampaya petition has been pending in our courts since 2004. It reached the Supreme Court in 2009 after passing through the hierarchy of courts, Until today, it has not been resolved. Had the court acted on the petition seasonably, we may have prevented Napoles from squandering P900 million worth of public funds that could have gone to livelihood and lowering the cost of electricity in Palawan. We may even have prevented the further plunder of P26.3 billion worth of Malampaya revenues and applied the same not just for national defense, but also for education and heath purposes. As the saying goes, “justice delayed is justice denied.”

I rest my case.

Phil State Responsibility for the Shooting in Balintang Channel


UnknownNewspapers quoted sources ,who have seen the videotape of our Coastguard’s shooting of the Taiwanese vessel in Balintang channel that killed one Taiwanese fishermen, as saying  that our men were “laughing” as they sprayed the unarmed fishing vessel with no les than 47 rounds of bullets from assault weapons. This should preclude the allegation  of self-defense. Where was the threat when they could still afford to laugh? And if there was use of force against them by the Taiwanese fishing vessel, why were there no physical evidence of this?

This latest development should lay to rest the issue of our country’s responsibility for this shooting incident. To begin with, international law does not even allow any country to detain illegal fishermen caught fishing in their EEZ. All that they could do is impound their vessels, which must then be immediately released upon posting of bond . Moreover, while everyone has the right o self-defense, this must be clearly established as a matter of fact and must additionally be shown to be both absolutely necessary and proportionate to the perceived threat. Where, in particular was the proportionality- when the Philippine coast guard vessel was not hit even by a single bullet? Seems to me that what happened was misplaced machismo. Misplaced since such an outburst of aggression may have been borne by the fact that we have otherwise been helpless against incursions on the part the “other Chinese”  in the West Philippines Sea and in Panatag Shoal that our trigger-happy coast guards may then have vented their anger at this civilian Taiwanese fisherman.

Since we have committed an internationally wrongful act, it is only proper that we apologize for the incident and pay compensation to the victim, This much is provided in the Articles of State Responsibility already adopted by the UN General Assembly. This was also the ruling of the UN International Tribunal on the Law of the Sea in the fairly recent case of the Saiga. This case illustrates the extent of legal entitlements of a coastal state in cases of violations of its EEZ.

In this case, Guinea arrested and detained the oil tanker “Saiga”, which was  at the time flying the flag of Saint Vincent and the Grenadines but manned by a Ukrainian crew.  At the time of the arrest, the ship was selling gas oil to fishing boats off the coast of West Africa, in an area determined to be south of the southernmost tip of the Guinean exclusive EEZ. It was attacked and boarded by a Guinean patrol boat, whose personnel thereafter disabled the ship’s engine with gunfire, injuring two crewmembers, assaulted other ship crew, discharged the cargo, and arrested the ship and crew.

The ITLOS ruled that the use of force by Guinea against an unarmed, fully loaded tanker was not reasonable and found that that Guinea had failed to issue warnings to the Saiga, and had endangered ship crew before and after boarding it.

It thus held that the conduct of Guinean maritime forces had violated the rights of Saint Vincent and the Grenadines under international law. In the end, it ruled that Saint Vincent and the Grenadines was entitled to reparations for damages suffered directly, as well as for other damages and losses by the ship and crew in the amount of US$2,123,357.

Notice that in this case, the ITLOS found that the incident happened within the EEZ of Guinea. Its maritime patrols were enforcing fisheries laws but were found to have done so utilizing excessive force. For this reason the Tribunal awarded damages to Saint Vincent and Grenadines in the form of reparations.

Note though that the apology and the payment of compensation are the full extant of our liability to Taiwan for this incident. There is no legal basis for Taiwan to now insist that we should enter into a “fishing agreement’ with it. This is because we can only enter into such an agreement with the People’s Republic of China pursuant to the One-China policy recognized by all countries of the world, including the United Nations.

Neither may Taiwan insist on exercising criminal jurisdiction over the incident. To begin with, the incident happened in an area where China and the Philippines have overlaps in their exclusive economic zones. The only entitlement of states in the EEZ is the exercise of “sovereign rights”, or the exclusive right to explore and exploit natural resources found in the zone.

Finally, the Coast Guard vessel, its captain, and its personnel may only be the subject of flag state jurisdiction. A Flag State is a state, which grants vessels using international waters, regardless of type and purpose, the right to fly its flag and, in so doing, gives the ships its nationality. Under the UNCLOS, A flag state is responsible for damage caused by “public ships” – warships and government ships for non-commercial purposes – flying its flag.

In any case, this incident should not have erupted into what it has become both here and in Taiwan if our government immediately acknowledged its responsibility and paid compensation without waiting for both to be demanded by Taiwanese officials. Let this  a lesson to our policy makers: when in the wrong, act quickly as any delay may lead to foreign policy aggravations.

Lessons Learned from the Taiwan Shooting Incident (For Immediate Release)


Ref. Prof. H. Harry L. Roque, Jr. 09175398096

Chair, Center for International Law

The recent shooting by the Philippine Coast guard of a lone Taiwanese fisherman illustrates the kind of governmental response that we Filipinos deserve when we ourselves  fall victims to an internationally wrongful act. Under international law, there is state responsibility for an internationally wrongful act where there is a breach of international law and when the breach is attributable to the state. Here, it appears that because the killing was because of a shot fired by a state organ, a member of the Philippine Coast Guard,  that the killing may be attributed to the Philippines government. Acts of state organs, no matter how lowly their ranks, and even if they are ultra vires, are always attributed to a state.

Furthermore, there too appears to be a breach of international law since the UN Convention of the Law of the Sea prohibits the use of unnecessary use of force in dealing with illegal fishermen. In fact, the UNCLOS provides that  fishermen caught illegally fishing in a states exclusive economic zone should not even be detained or charged criminally The only leeway granted  to a party state is to apprehend the vessel which, in turn,  must be immediately  release upon posting of bond.

The lesson learned is how our own government should espouse the claim of  its national, even if there is only one solitary victim. Not only did the highest echelon of the Taiwanese government demand for an apology, it also demanded compensation and even threatened the Philippines with both military and economic reprisals, even if both are prohibited by  international  law. This is in stark contrast  with the current practice of the Philippine government. Only recently, 200 of our nationals became sitting ducks to  Malaysia’s illegal resort to excessive force.  Our response was to threaten our nationals with domestic prosecution.

Because we committed an internationally wrongful act, we have the obligation under international law to apologize and provide compensation to the victim. This though is the full extent of our liability. Taiwan’s demand that in addition, we enter into a fishing agreement with it is bereft of legal merit. Taiwan is not an independent state and should not expect to be treated as such. Any fishing agreement involving overlapping areas of our exclusive economic zone should be with the People Republic of China. This is  consistent with the international communities’ recognition of the so-called one-China policy; that is, Taiwan forms part of the People’s Republic of China and is not a republic on its own.

This latest experience should also teach our policy makers to act with dispatch where it is our government that incurs international responsibility. Since the shooting was at the behest of a state organ, the Philippine Coast Guard, the investigation should not have lasted as long as it did. It only entails requiring the Master of the coast guard vessel to report what transpired that led to the shooting. Absent evidence that it was in self-defense, the Philippines should have apologized with dispatch and should not have waited for any formal demand to do so. Our failure to act with dispatch consistent with our  international obligation gave  Taiwan the opportunity to exploit the incident to promote its own interest.