Category Archives: South China Sea

Suing China before the ICJ over COVID-19

Peter Tzeng of Foley & Hoag (the law firm behind our victory against China in the SCS arbitration) writes this excellent thought piece on suing China before the International Court of Justice.

We all know China’s usual stance on international litigation” : stay away from it, when it goes against your interest. And because state-to-state litigation in international law is pretty much a mirror of its largely consent-based system, the challenge is to find exceptional grounds against the general rule.

Here Tzeng discusses possible grounds for compulsory jurisdiction within the World Health Organization Charter, notably Article 75, which provides: “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice. He links here too an opinion piece I wrote on the question last March 22 for the Philippine Daily Inquirer, pointing to China’s abject failure to provide timely notification on the outbreak under the World Health Organization International Health Regulations (2005).

I would add a “catch-all” (and admittedly novel) argument to his proposal, under the law of state responsibility: that given the scale and effects of this pandemic — nearly all 193 countries affected, so far — perhaps an argument can be made from general international law that China has no choice but to arbitrate (cf Art. 42 of the ARSIWA).

The safety, security and health of the world is a fundamental and common interest of nations that a breach in IHR (2005) obligations triggers compulsory jurisdiction.

After all, its intentional and willing breach of such obligations under Art. 6 and 7, given the nature of the contagion, resulted in mass deaths around the world, and counting, not to mention massive disruptions in the economic, social, political, and religious life of billions around the world.

I will expound on this approach in another post.

1 Comment

Filed under China, COVID-19, International Court of Justice, International Law, South China Sea, State, State Responsibility, Uncategorized, WHO

Commentary: Indonesia’s New Year’s message to China over Natunas dispute: A game changer?

By Romel Regalado Bagares

A statement issued on  New Year’s Day by the Indonesian Ministry of Foreign Affairs against alleged Chinese encroachments over the Indonesian Exclusive Economic Zone (EEZ) in the Natunas may prove to be a diplomatic and legal game changer in the increasingly volatile South China Sea.

For the very first time, a third party Association of Southeast Asian Nation (ASEAN) member- state invoked the landmark 2016 arbitral ruling in the South China Sea case filed by the Philippines three years earlier against Chinese expansionist moves in the region.

Indonesia’s broadside came following alleged incursions by Chinese coastguard vessels in the Natuna Sea, which lie nearly 1,100 kilometers south of the Spratlys in the South China Sea.  It features an archipelago of 271 islands and resource-rich waters.

China claims the Natunas is subject to its jurisdiction  under the UN Convention on the Law of the Sea  (UNCLOS) as “relevant” waters that had been visited by Chinese fishermen since time immemorial.

A blunt rebuff

The Indonesian MFA however said the Chinese claim is without any legal basis under the UNCLOS, adding that its claims of historic rights have all been repudiated by the Permanent Court of Arbitration’s 2016 ruling.

In addition, Indonesia bluntly rejected any suggestion of bilateral talks with China to delimit what the latter says are overlapping maritime jurisdictions, as there are none to speak of.  .

“Based on UNCLOS 1982, Indonesia does not have overlapping claims with the PRC [People’s Republic of China] so that it is not relevant to have any dialogue on maritime boundary delimitation,” the four-paragraph Indonesian statement said in part, according to a rough translation of the original Bahasa.

Too, under UNCLOS rules, recognition by Indonesia of any maritime overlap forecloses any resort  to the landmark treaty’s compulsory dispute mechanisms successfully used by the Philippines to bring China to arbitration, despite the latter’s fierce objections.

Thus,  the Indonesian statement may also be  sending China a subtle signal that any further unwelcome acts in the Natunas  may force Indonesia’s hand to steer for a direction Beijing would not want to take itself – yet another arbitration case where it will have little control of the outcome.

China appears to expand the exception outlined by PCA to the UNCLOS regime that allows traditional  fishing in territorial waters by competing claimants (as it so held on the question of Scarborough Shoal claimed by both the Philippines and China).

But notably, the Arbitral Court stopped short of saying traditional – or subsistence – fishing may also apply to the EEZ, a ruling that comports with established international norm on the question.

What UNCLOS does allow in the EEZ is fishing for the “surplus catch” by other states outside of the coastal state’s Total Allowable Catch (TAC), a scientific measure of that state’s fishing capacity, but only with the latter’s consent.

Ironically,  during the UNCLOS negotiations, China  itself had questioned the allotment of a surplus catch in the EEZ  for other states, saying that developing countries should be allowed to keep all fishery resources for itself,  as noted by the PCA in its judgment on the Philippine arbitral case against China.

In any case, Chinese poaching in the EEZs of its ASEAN neighbors can hardly be considered subsistence fishing. Instead,  it often involves what experts call China’s “Second Surging Sea Force” network of large fishing fleets working in tandem with Chinese navy and Coastguard vessels.

A loud chorus from the ASEAN trio

Jakarta’s rebuff of Beijing forms part of an increasingly loud chorus of opposition to China’s expansionist moves in the South China Sea, as it joins formal moves by two other major economies –  Malaysia and Vietnam – to set aside the Chinese Nine Dash Line-claim in favor of accepted international rules.

In November last year, a top Vietnamese diplomat announced that his country is now seriously considering to follow Manila’s earlier lead to bring China to arbitral court over  repeated Chinese intrusions in Vietnam’s Vanguard Bank, an oil-rich section of its EEZ.

Malaysia followed this up in late December by filing with the United Nations a claim for an Extended Continental Shelf (ECS). It made the filing under Article 76 of the  UNCLOS, which allows a coastal state to claim the outer limits of its continental shelf beyond the 200-mile limit, for an additional 150 miles, under certain geological conditions. It is a legal move that also eats  substantially into the Chinese Nine Dash Lines.

On January 3, or two days after the Indonesian MFA’s declarations,  Malaysia’s own Ministry of Foreign Affairs issued a statement saying it does not fear Chinese reprisals over its ECS filing.

The three countries’  combined message should unsettle China, as it confirms Beijing’s failure to marshal support among the region’s biggest economic and political players – not counting the Philippines –  for its rejection of the PCA’s ruling striking its Nine Dash Line-claim.

Beijing, in utter disregard of the ruling, then embarked on a building spree – now largely completed – over maritime features declared by the PCA as part of the Philippines’ EEZ.

Indonesia, along with Vietnam, Malaysia, Japan, and Thailand, had each sent a diplomatic observer to the Permanent Court of Arbitration proceedings at the Hague where the Philippine arbitral case against China was heard.  With the exception of Thailand, all the countries have a running maritime dispute with China.

During the PCA hearings in the Philippine case, Vietnam had as well filed a brief supporting Manila’s case against China.

Ironically, with the election to office of President Rodrigo Duterte in June 2016, Manila has backpedaled on its stance towards China, opting to take a conciliatory route towards Beijing. Manila had filed the arbitral case under his predecessor, Benigno Aquino III’s administration.

Three years into his term, Mr. Duterte, in addition to his contradictory statements over the country’s arbitral case victory, has so far continued his policy of rapprochement towards China, despite it not sitting well with most of the  Filipino populace, not to mention, with his own military advisers.

ASEAN chairmanship change

New Year’s Day also triggered a change in leadership of the ASEAN under the regional grouping’s charter, with its chairmanship automatically vested for a one-year term with Vietnam, from Thailand’s in 2019.

Article 31 of the ASEAN Charter provides that “the Chairmanship of ASEAN shall rotate annually, based on the alphabetical order of the English names of Member States.”

Vietnamese  chairmanship of the regional grouping may also prove pivotal to current ASEAN efforts at crafting a binding Code of Conduct regulating the actions of rival claimants in the region.

This – and the ASEAN trio’s open defiance of China on the South China Sea question – may yet push Mr. Duterte to rethink his own options towards Chinese occupation of maritime features that, according to  the PCA, are part of the Philippines’ own EEZ.

 

This piece appeared in the Philippine Star’s online edition on  January 5, 2020.

 

 

 

1 Comment

Filed under Bajo De Masinloc, China, International Law, ITLOS, Malaysia, Nine-Dash Line Claim, PCA, Scarborough Shoal, South China Sea, Uncategorized, UNCLOS

Itu Aba: An Inside Track

itu_aba_ge1I guess it’s inevitable that the issue of Itu Aba would surface yet again in the wake of the Philippines’ resounding victory in the South China Sea Arbitration. As I noted in that earlier post detailing what we won before the Arbitral Court, the island — occupied by Taiwan — was a sore point between Justice  Francis Jardeleza (and his successor at the Office of the Solicitor General, Prof. Florin Hilbay), and Justice Antonio Carpio. The latter (with Chief Justice Sereno)  even went as far as opposing the former’s appointment to the Supreme Court because of  Jardeleza’s stance when he was Solicitor General. For background, click here and here.

A few days ago, Rappler came out with a piece recalling the Jardeleza-Hilbay tack on their alleged Itu Aba “miscalculation.”

Hilbay, now back at his old professor’s perch at the UP College of Law (funny, Jardeleza, Carpio and Sereno all served as professors at the College at some point in their legal careers), wrote a retort to Rappler’s rap. Rappler duly reported on his retort here.

This morning, I received a text from Prof. Hilbay expressing his reservations about the treatment his written statement had received in the Rappler news item. I  obtained a copy of his statement and am posting it below, for your own benefit and appreciation:

(A PDF file of the statement and the Memorandum mentioned in it may be downloaded here).

 

21 July 2016 UP College of Law

Response to Ms. Hofileña and Ms. Vitug
By: Prof. Florin T. Hilbay, former Solicitor General (Philippines v. China)

I respond to Ms. Hofileña’s and Ms. Vitug’s Rappler piece accusing me (and Justice Francis Jardeleza) of “miscalculation.”

First. I do not suppose the writers consider themselves experts in the law of the sea, much less official participants with personal knowledge of the West Philippine Sea litigation. I am therefore amused at the accusatorial tone they have taken on previously undisclosed legal strategy which, in fact, resulted in an overwhelming victory. Whether they are adopting the opinion of any person officially or unofficially connected with the case is also not stated. I am therefore left to respond to conclusions based on gossip, even as they were written by people I consider respectable journalists.

Second. In the coming months and years, the nation will have an opportunity to look under the hood of this magnificent legal accomplishment. Thankfully, given the positive legal result, the challenge will be about proper documentation and accurate narration of how this result came about, not about who should be blamed for what. The room is big enough and the pages of history books (or even Facebook) sufficiently spacious to toast the contributions of women and men privileged enough to have had a direct or indirect connection with the case. The bucket can accommodate decent human beings, and there’s no need to reduce oneself into a crab.

Third. Given the magnitude of this case and the multi-layered controversies surrounding it, I consciously adopted a policy of keeping documents and having multiple witnesses. This should eliminate erroneous factual claims and reduce subjective elements in the narration of the history of this case, which I intend to write. I saw myself simultaneously as a participant and an observer. As the former, my goals were to achieve an efficient win, reduce the impact of potential losses, and protect the President. As the latter, I was an excited case biographer.

Fourth. I saw the Itu Aba issue as belonging to the baskets where there was a need to reduce the impact of a potential loss and protect the President. By now, people should be aware that the Itu Aba issue is one where the entire team’s level of confidence was not at its highest. This explains why that feature was not included in our “complaint” in the first place. My discomfort with the treatment of Itu Aba figured prominently in a 2014 Memorandum I sent to Executive Secretary Paquito Ochoa, Jr. and Chief Presidential Legal Counsel (now Justice) Alfredo Benjamin Caguioa. This should be remarkably self- explanatory, and an interesting read.

I invite Ms. Hofileña and Ms. Vitug to reveal any other 2014 “official communication” from me to Malacanan.

Fifth. Ms. Hofileña and Ms. Vitug have a wildly mixed-up sequencing of events, which is to be expected from those who do not have official documents or had no direct and personal knowledge of events. Let me take the cudgels for them on one critical decision- point.

In the hearing on the merits last November 2015, the Tribunal made the Philippines grapple with a hypothetical: what happens if a feature (Itu Aba) were declared an island under UNCLOS (which therefore generates an Exclusive Economic Zone of 200 nautical miles from its coastline)? The original, proposed answer was that the Tribunal would retain jurisdiction to control, by some means, the conduct of the parties “pending agreement on delimitation or joint development arrangements.” I thought this was both novel and strange. This was the first time this theory was broached, and the proposal to softly offer “joint development arrangements” if we lose on the Itu Aba issue was problematic.

Witnesses to the agent’s discussion with foreign counsel, assuming they’re not deliberately forgetful, will remember two important points I repeatedly emphasized—

1) Commit to the wave. I did a short lecture on how surfers are able to catch big waves. Itu Aba is a wave we absolutely needed to catch, and we should not signal to the Tribunal that we think we might lose. We needed to focus our firepower on winning that issue instead of sheepishly offering “joint development arrangements” for when we lose. We should not, therefore, telegraph our punches.

2) Avoid impression of selling out. The Philippines, in this litigation, should not be seen as offering “joint development arrangements” as a second option or a compromise. For myself, I was particularly worried about being seen as inserting a very specific economic incentive as trade-off for losing the Itu Aba question. I told everyone “I will not be the Solicitor General who sold this case to China.”

Those who were in that meeting were former Secretary of Foreign Affairs Albert Del Rosario, Justice Francis Jardeleza, Justice Antonio Carpio, Ambassador Jaime Ledda, Deputy Executive Secretary Menardo Guevarra, and the entire contingent of Foley & Hoag.

In the aftermath of that meeting, foreign counsel strengthened (even more) the arguments on Itu Aba, dropped “joint development,” and recast the Philippines’ post-loss scenario to not make it appear we were not confident about winning Itu Aba.

At the conclusion of the hearings, Paul Reichler and Bernard Oxman (who delivered the wonderfully powerful speech for that hypothetical) thanked and congratulated me for my intervention. On my flight back home to Manila, I emailed Prof. Oxman: “I am serious when I tell you that your speech on the third day will probably be remembered as one of the most important speeches on the South China Sea disputes, and I’ll surely remind everyone of that fact.”

I think we won the Itu Aba issue because everyone from the Philippine side and the foreign counsel’s side was professional enough to realize that our occasional disagreements in this case could lead, rather thankfully, to compromises over our strongly held opinions. Fortunately, the brew was sufficient to convince the Tribunal that our arguments on the various submissions were correct.

Moving forward, I think the wise attitude here is to celebrate the victory, not malign anybody’s contribution. Justice Jardeleza, always fond of quoting JFK, would usually remind me that victory has a thousand fathers, but defeat is an orphan.

I couldn’t care less if this victory had a million parents.

-30-

Leave a comment

Filed under International Law, ITLOS, Nine-Dash Line Claim, PCA, Philippines, South China Sea, Uncategorized, UNCLOS