Tag Archives: China

China, international law, and Covid-19

By Romel Regalado Bagares

A novel coronavirus

On December 30 last year, Dr. Ai Fen, Director of medical emergency at Wuhan Central hospital in Hubei province, received the lab results of a patient with flu-like symptoms that had proved to be resistant to prescribed treatment.

The lab results turned up a dreaded note: “Sars coronavirus,” according to an interview she gave with the Chinese magazine, Renwu, or “People,” translated into English by the British newspaper The Guardian and published on March 11.

It made her break into a sweat. After making sure she read the note correctly, she snapped a photo of the report using her smartphone and sent it to a colleague at another hospital in the city of around 11 million. By day’s end, that photo  would circulate in chat groups, and reached another doctor at her  hospital, Dr. Li Wenliang. It was the latter who would shortly blow the lid on the true nature of the virus.

Evidence suppressed?

 But Chinese authorities, instead of immediately warning the public about it, censured Dr. Ai, she said in her Renwu interview. Her superiors even instructed her to tell staff not to wear protective gear when treating patients, which she disobeyed, for the sake of her colleagues.

The authorities also allegedly caused the arrest of Dr. Li, forcing him to sign a declaration that he will stop talking publicly about the virus. Dr. Li, after treating many of the patients himself, would later on die of the disease now known as “Coronavirus 2019” (COVID-19), which arose from the virus identified as “SARS-CoV-2,” a new coronavirus suspected but not proven to have come from bats or pangolins.

His subsequent death would spark a rare and massive online outburst of anger among Chinese citizens, who looked to him as a martyr.

The South China Morning Post also reported on March 13  that another doctor, Zhang Jixian, of the  Hubei Provincial Hospital of Integrated Chinese and Western Medicine, had reported to China’s health authorities at an even earlier date – on December 27 last year – that the flu-like disease that had stricken a rising number of patients was caused by a new coronavirus.

However, by January 2, 41 patients admitted into hospitals in Wuhan “had been identified  as having laboratory-confirmed 2019-nCoV infection,”according to a crucial study made by Chinese medical scientists and published by The Lancet, a noted British medical journal, on January 24.

More importantly, only 27 of the patients (or 66 percent of the patient population in the study) had links to the Huanan seafood market, the suspected “ground zero” of the outbreak. The rest of the patients, because they had no connections to the market, indicated human to human transmission. This latter set included one of the earliest cases, from December 1 last year.

Interestingly, this study was funded by a cluster of high-level Chinese national institutions – the Ministry of Science and Technology, Chinese Academy of Medical Sciences, National Natural Science Foundation of China, and Beijing Municipal Science and Technology Commission.

This makes the study official, being sanctioned by the highest echelons of China’s central government. Yet, despite this officially-sanctioned research results, on January 19, in their very first public statement to the World Health Organization (WHO), Chinese officials insisted it was a “preventable and controllable” animal-to-human disease, saying available evidence only connected it to the seafood market in Wuhan, where the new virus emerged.

The officials would finally confirm human to human transmission only two days later, as  the number of sick residents coming to hospital emergency rooms in the city reached 1,523  a day – or three times the normal rate. This was already 19 days – or nearly three weeks – after The Lancet study’s confirmation of a novel coronavirus outbreak in Wuhan.

And now, nearly three months later, the world as we know it is gone; global supply chains – many of them dependent on China-based factories – grind to a halt, putting in deep doubt the seamless globalization they had underwritten all these years; airline and tourism  industries worldwide falter; stock markets crash; universities abruptly shift classes online; offices adopt virtual or work from home arrangements; and entire cities or nations go on lockdown for extended periods, as governments try to “flatten the curve” on the deadly virus, which has already spread to more than 168 countries and regions around the world, with 378,679 cases and 16, 508 deaths as of March 24, according to the Johns Hopkins University Center for Systems Science Engineering.

Too, it has made the closure of borders a necessity, even in the Eurozone, a region premised on the free movement of goods and peoples.  A global recession – defined as economic growth rate below 2.5 percent  from the normal range of 3.5 to 4 percent – has arrived, according to the  Financial Times on March 15.

COVID-19 and the Law of State Responsibility

The question is: assuming the allegations of an official coverup are true, is the Chinese government liable in some way for it under international law?

Under the law of state responsibility, China has certain international obligations it should have dutifully observed in dealing with the COVID-19 disease. The law of state responsibility defines the  conditions and consequences of wrongful conduct of states under international law.

The determination of state responsibility involves two correlated grids: one, primary rules, which prescribe a certain conduct, depending on the legal regime in question; and two, secondary rules, which define the conditions under which an act is wrongful in international law and spells out the consequences of such internationally wrongful act.

Secondary rules are expressed in the 2001 Draft Articles on the Responsibility of States for Wrongful Acts (ARSIWA), a landmark document developed by the International Law Commission to codify customary norms of state responsibility, as well as in relevant case law, and general principles of law.

Generally, state responsibility is raised whenever a state commits an internationally unlawful act  or  conduct that breaches its international obligations regardless of whether an injured state at all seeks reparations for the damage it suffered as a result of such an  internationally unlawful act.

This is known as the “objective interpretation of state responsibility”, which protects the integrity and stability of the international legal order. Thus, an international wrong done by a state does not become a right simply because no one complained against it.

The IHR (2005)  as the applicable primary rule

China’s alleged suppression of information on COVID-19 is a violation of the 2005 International Health Regulations (IHR)  established under the auspices of the World Health Assembly, the decision-making body of the World Health Agency (WHO), to deal with diseases of an international nature.

The IHR (2005) is an interesting species of international law, because it is a set of regulations established by an international organization. Nevertheless, the parties to it are states, and the WHO treats it as a treaty binding on member-states.

The purpose of the IHR (2005) is “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”

China, when it became a party to the treaty in the same year, declared that it “applies to the entire territory of the People’s Republic of China, including the Hong Kong Special Administrative Region, the Macau Special Administrative Region and the Taiwan Province.”

First drafted in 1969, it  covered six “quarantinable” diseases, but was later amended in 1973 and 1981 to cover only three infectious diseases – cholera, plague, and yellow fever – thus reflecting the WHO’s success in fighting infectious diseases. However, when the first coronavirus epidemic – the Severe Acute Respiratory Syndrome ( SARS)  – broke out in 2003 in China, the IHR could not be invoked for that reason.

At that time, China’s response to the outbreak in Guangdong province as early as November 2002  left many countries reeling from its after effects, as Chinese officials shunned transparency and cooperation, thus contributing to global spread of the coronavirus.

On May 23,  2005, the IHR  was again amended to now apply in general to any “illness medical condition, irrespective of origin or source, that presents or could present significant harm to humans.” It also now covers any “public health emergency of international concern.” Such public emergency is now defined as “an extraordinary event which is determined, as provided in these Regulations:  (i) to constitute a public health risk to other States through the international spread of disease and  (ii) to potentially require a coordinated international response.”

The new regulations took effect on June 15, 2007.

It is undeniable that COVID-19 is one such public health emergency of international concern, as it has been declared a pandemic – or “the worldwide spread of a new disease”  – by the WHO on March 11, the very first to be called by the international body of a coronavirus.  So far, it has wrought untold havoc on the world economy, aside from already affecting the right to life and the right to health of nearly four hundred thousand people globally. The  IHR (2005) comprises the primary rules of state responsibility that prescribe conduct – international obligations– on a pandemic like the COVID-19 disease.

China’s Duty to Notify under the IHR (2005)

A WHO briefer explains that upon the first reports  of a potential public health emergency of international concern, within its territory,  a state is  required to assess  within 48 hours by applying a specific algorithm contained in Annex II of the IHR(2005), called the decision instrument. It is to use four decision criteria for the purpose –  (1) the seriousness of the event’s public health impact; (2) the unusual or unexpected nature of the event; (3) the risk of international disease spread; and (4) or the risk that travel or trade restrictions will be imposed by other countries.

“In essence, the events which must be assessed are those that may fulfil one or more of the four decision instrument criteria, and the events which must be notified are those that meet at least any two of the criteria therein,” according to a WHO briefer.

The earliest report appears to have been made on December 27 last year by Dr. Shang,  followed three days later by Dr. Ai and Dr. Li.  So, on the basis of the IHR (2005) protocol, China had 48 hours to assess whether this “unusual event” is of the nature of an public health emergency of an international concern.

Then, under Arts. 6 and 7 of IHR (2005), China had the duty to inform the WHO within 24 hours of determining the nature of the virus, using a prescribed checklist, as well as any measure it has deployed to deal with its outbreak.

The Smoking Gun?

The critical date here appears to be January 2 , when 41 patients “had been identified  as having laboratory-confirmed 2019-nCoV infection,” in the words of the Lancet study. This  Lancet study could be  the proverbial “smoking gun” in any international litigation.

And it is baffling that the study – with the names of a stellar cast of Chinese medical scientists appended to it – was at all allowed to be published in an independent and reputable foreign medical journal by the Chinese government.

Given the official nature of this research study, this amounts to a direct admission by the Chinese government that they knew early on about the nature of the contagion in Wuhan.  And within 24 hours of this determination, China, through its designated National IHR Focal Point, should have already alerted the designated IHR Contact Point.

After such notification, China also had the duty to communicate to the WHO “timely, accurate and sufficiently detailed public health information available.” This includes “case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed.” China was also expected to report the challenges posed by the virus, and any assistance it may need to respond to the potential public health emergency of international concern.

As the available facts show, Chinese authorities allegedly quarantined information and any public discussion about the COVID-19 for nearly three weeks, when early containment to prevent its spread beyond Chinese borders was supposed to be the order of the day.

They also reportedly refused offers of assistance from the WHO and from the US Center for Disease Control and Prevention   (CDC) in those early stages of the outbreak.  A US CDC report would later say that  the “sequences from U.S. patients are similar to the one that China initially posted, suggesting a likely single, recent emergence of this virus from an animal reservoir.”

Worse, China’s provincial officials even allegedly prosecuted whistleblowers.

In the Corfu Channel Case (1949), the International Court of Justice (ICJ) held that no state may “knowingly allow its territory to be used for acts contrary to the rights of other States.” Such a general principle of law means that China is duty-bound to ensure that individuals do not cause harm to the rights of other states. Moreover, the acts of persons exercising public authority are attributable to the state. This is consistent with the principle of the unity of the state, where the conduct of any of its organs, whether in the exercise of legislative, executive, or judicial functions, are considered its own acts in international law.

Thus, ultimately, China  is responsible for the decisions taken by its public officials to keep under wraps crucial information on the virus for nearly three weeks when, under the IHR (2005), it had the duty to inform the world of the public health emergency within 24 hours of assessing its dangers.

That long delay may have caused many countries  the only window of opportunity they had  to prevent the contagion from spreading worldwide.

The Guardian reported on  March 11 about scientific simulations showing that  if the interventions could have been brought in a week earlier, 66 percent fewer people would have been infected, and if the same interventions could have been implemented three weeks earlier, it would have reduced the cases by 95 percent.

Breaches and Reparations

 What are the remedies available under international law for the injury suffered by other states as a result of China’s alleged mishandling of the COVID-19 pandemic?

China may be liable to pay reparations to injured states over its failure to promptly notify the world of the outbreak of the SARS-CoV-2 virus as required by the WHO’s International Health Regulations (2005).

Whenever a State commits an internationally unlawful conduct, it must pay reparations to the injured parties for the damage they suffered . It is a principle of international law that the breach of an agreement involves an obligation to make reparation in an adequate form,” as the landmark Chorzow Factory Case (1927) would put it.

Reparation, per Chorzow,  “must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”

If restitution is no longer possible, “payment of a sum corresponding to the value which a restitution in kind would bear” will suffice, along with an  award of damages for loss sustained which would not be covered by restitution in kind or payment in place of it.”

According to the 2001 LaGrand Case, an assessment of damages may also come with an award of satisfaction, or a formal apology and assurance from the offending state that its unlawful conduct will not be repeated.

Both the apology and the pledge of non-repetition are important, because if that same state once again violates the same obligations in the future, these may be taken in evidence in another proceeding for reparations for purposes of ascertaining punitive damages, the repetition being a doubly flagrant and morally reprehensible violation of its international obligations.

Causal link requirement

 As the obligations in question involve a positive duty that must be discharged to prevent the spread of an infectious disease or a public health emergency of international concern, reparations may involve a determination by an international tribunal of a causal link between the alleged breach of an international obligation and the damage suffered by the injured States.

One applicable model of causation is the “sufficiently direct and certain causal nexus test“  established by the International Court of Justice in the Bosnian Genocide Case (2007). This means that  an injured state must establish from the case as a whole and with a sufficient degree of certainty that the pandemic would have been averted had China complied with its treaty obligations under IHR (2005).

Or, it may be a simple test of an obligation of conduct as in Corfu Channel, where the failure to discharge a positive duty to notify under customary international law was enough to assess damages against the offending state, Albania, which failure was deemed a form of negligence. In fact, in the Rainbow Warrior Arbitration (1986), it was held that mere violation of an obligation, “irrespective of material damage, can cause moral or legal damage.”

Indeed, it may be argued that the duty to notify codified in the IHR (2005) is not only a treaty norm but also a rule that, since the treaty was established in 1969, has crystallized as well as a norm of customary international law considered binding on all states, given the scale and effects of the dangers it addresses.

Moreover, the unprecedented spread of the deadly disease may yet give rise to a recognition that the failure to notify the world on public health emergencies of international concern now involves a fundamental and common interest of  the international community of nations.

In such a case, even an uninjured State may bring a claim against China on behalf of the international community, under Art. 48 (1)(b) of the Draft Articles on the Responsibility of States for  Internationally Wrongful Acts.  In any case, the liability for damages assessable against China for its alleged breach of international obligations would almost certainly involve staggering amounts.

Dispute settlement under the IHR (2005)

 Art. 56 of the IHR(2005) provides member states with a graduated procedure for settling any dispute on the interpretation or application of the regulations.

Firstly, the provision requires parties to a dispute to settle it peacefully according to an agreed mechanism, including good offices, mediation, or conciliation.  Secondly, if it fails, they may then refer it to the Director General, “who shall make every effort to settle it.”

However, the current WHO Director General, Tedros Adhanom Ghebreyesus, an Ethiopian, may not be the best person to settle it, having been repeatedly criticized by various sectors for his lavish praise of China’s response to the Wuhan outbreak.

Or a member state party may also declare in writing to the Director General that it accepts compulsory arbitration to settle such dispute. In such case, the arbitration will be conducted  under the Permanent Court of Arbitration’s  Optional Rules for Arbitrating Disputes between Two States applicable at the time a request for arbitration is made.

Any award made pursuant to the arbitration will be binding and final on the parties. Member states are also allowed to agree to settle their disputes using other dispute settlement mechanisms. However, if the dispute is between a member state and the WHO itself, it will be submitted to the Health Assembly.

China has not made any reservation on, or rejection of, any provision of the IHR (2005). However, it has not submitted a written declaration accepting  compulsory arbitration.

Shifting the narrative?

But already, China is beginning to shift the narrative away from its alleged responsibility over the pandemic.

In early March, the Xinhua News Agency, a government mouthpiece, published an editorial claiming that “the world should thank China” for  the huge sacrifices and extreme measures it had undertaken to fight the new coronavirus,  which supposedly bought the rest of the world time, Asian Nikkei reported on March 11.

The Guardian also reported on March 13  that the Chinese Foreign Ministry now accuses the United States Army of having actually brought the virus to Wuhan, and Chinese diplomats and state media are echoing the allegation.

Also, the Chinese government just published a book, A Great Power’s Battle Against Epidemic, which praises Chinese Premier Xi Jinping’s “strategic foresight and outstanding leadership ability” in fighting the outbreak in Hubei province, according to the Asian Nikkei.

But the book was quickly withdrawn from circulation when Hubei residents protested that it was inappropriate to distribute the book when the battle against the virus not yet over.

President Donald Trump would not be outdone, saying China should be held to account for the “Chinese virus.”

What’s interesting is that the Chinese government is on a diplomatic offensive, sending medical teams and tons and tons of crucial medical supplies to Italy, Serbia, Liberia, and the Philippines.

On March 21, Time magazine quotes Czech Interior Minister Jan Hamacek as saying that China  is “the only country capable of supplying Europe with such amounts.” The magazine also quotes a noted China expert Julian Ku, professor of international law at Hofstra University in New York  as saying that the Chinese government hopes to leverage its experience in bringing the new coronavirus under  control.

“The Chinese government’s failures … will be less harshly viewed in light of the failures of other governments to respond effectively as well,” he told Time.

 WHO: the weakest link?

Even the WHO Director General Tedros Adhanom Ghebreyesus had praised the Chinese efforts to combat the pandemic, and even called on countries to avoid travel bans to and from China.

“We reiterate our call to all countries not to impose restrictions that unnecessarily interfere with international travel and trade, Tedros said in an official WHO statement on  February 4. “Such restrictions can have the effect of increasing fear and stigma, with little public health benefit.”

Tedros’s praise for the Chinese response to the virus baffled some experts, according to  a Washington Post report on February 8.  These experts think that the international body’s positive appraisal of the Chinese handling of COVID-19 early on may have given other nations a false sense of security that the disease has not spiraled out of control.

“We were deceived,”  Lawrence Gostin, a professor of global health law at Georgetown University who also provides technical assistance to the WHO  told the Washington Post. “Myself and other public health experts, based on what the World Health Organization and China were saying, reassured the public that this was not serious, that we could bring this under control.”

Others are more caustic in their criticism.

On March 17, The Hill, a  conservative American online magazine, published an opinion piece by Bradly A. Thayer, a professor of political science at the University of Texas and co-author of the book How China Sees the World: Han-Centrism and the Balance of Power in International Politics, and Lianchao Han, vice president of Citizen Power Initiatives for China. The two said Tedros and China’s XI Jinping “should be held accountable for recklessly managing this deadly pandemic.”

They accused Tedros of helping China “play down the severity, prevalence and scope of the COVID-19 outbreak” after meeting Xi on January 28 in Beijing.

They also noted China’s connections to the WHO Director General’s  country of origin Ethiopia, which, they say, is now called East Africa’s “Little China” with heavy Chinese investments. Indeed, it has become “China’s bridgehead to influence Africa and a key to China’s Belt and Road initiative there.”

They also provided little known facts about Tedros, who, they say,  was elected to his position with the WHO in 2017 “despite the fact that he was not trained as a medical doctor and had no global health management experience.” Instead,  he was  a former minister of health and minister of foreign affairs for Ethiopia before going to the WHO, where one of his first official acts was to propose to appoint then-Zimbabwe dictator Robert Mugabe as a WHO goodwill ambassador.

If so, we may see for the first time a suit for “complicity” of the WHO, an international organization  – an area in international law that is admittedly still in development.

Capable of repetition, yet evading review…”

 In November 2017, an article in the Smithsonian Magazine asked whether China is going to be ground zero for a future pandemic. The author, Melinda Liu, argued that the country “is uniquely positioned to create a novel flu virus that kills people.” Why so?

She explained:

“On Chinese farms, people, poultry and other livestock often live in close proximity. Pigs can be infected by both bird flu and human flu viruses, becoming potent ‘mixing vessels’  that allow genetic material from each to combine and possibly form new and deadly strains. The public’s taste for freshly killed meat, and the conditions at live markets, create ample opportunity for humans to come in contact with these new mutations.”

In addition, in a country of one billion people, only two percent receive flu shots annually, she wrote, underlining a grave lack of  community immunity for flu.

There’s also the problem of the repressive political system, in the country, shown in the Chinese response to SARS outbreak, in which “Chinese apparatchiks initially tried to cover up the epidemic, creating a worldwide scandal.”

She did note an improvement in China’s handling of the  H5N1 bird flu outbreak in 2013. Alas, the improvement would not last long.

Only three years later, Liu’s prediction would come true – a new pandemic from China has gripped the world, and it is with such virulence  that, in the United States alone,  it could kill as many as 1.7 million people, according to a US CDC worst case scenario estimate.

If anything,  China’s immediate responses to the SARS and COVID-19 pandemics seem to underline that public health emergencies of international concern and authoritarian systems lacking in transparency and political freedoms make for a dangerous mix.

A formal legal proceeding before an international tribunal, where evidence for or against China’s alleged responsibility for the pandemic are heard by impartial judges, may be the best way to establish the truth about COVID-19, and to stop another pandemic from ravaging the world.

Yet it remains a big question whether China would allow itself to be dragged into yet another contentious international arbitration.

Injured states may take the first step of asking the good offices of UN Secretary General Antonio Guterres, to find a common solution with China for the damage they suffered as a consequence of the latter’s failure to promptly notify the world about the true nature of contagion that emerged in Wuhan late last year.

This first appeared as a two-part special report for abs-cbn online on March 24, 2020, and March 25, 2020, respectively.  Click here for the first part, and here, for the second part.

A shorter version also appeared in the Philippine Daily Inquirer as an opinion piece on March 22, 2020.

 

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Filed under China, International Law, State Responsibility, Uncategorized

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.

 

 

 

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

Doing long-haul diplomacy in Pinyin

Does the arbitral court’s discussion of kompetenz-kompetenz make sense?” W., a young female Chinese graduate student, softly asks me as we walk past Beijing’s Ministry of Foreign Affairs building under an afternoon drizzle recently.

Her question is at the heart of the Permanent Court of Arbitration’s (PCA) jurisdiction over the South China Sea case filed by the Philippines, despite China’s objection.
“It’s the arbitral court’s competence to rule on its own competence to hear the dispute,” I answer, with a nod to Kelsen’s theory that international law springs from a grundnorm (fundamental norm). She obviously knows. She’s politely raising doubts over the PCA’s voiding of the “nine-dash line” claim.

Following an international law conference in Beijing in mid-October, W. shows Herbert Loja—a Pinoy PhD student at the Hong Kong University—and me around the city’s tourist spots.

Many young people now study international law in droves after the court’s ruling, says W., a student at the China University of Political Science and Law. Are Filipinos her age similarly driven? I wonder.

Conversant with Mao and Marx, she is tall and lively, and speaks English with a slight British accent, acquired by “listening to BBC broadcasts.” If her studies are an indication, her generation of students knows Western modes of thinking in international law, and the imperialist roots of the current purportedly rules-based international legal regime.
Earlier, over a lunch of bowls of steaming noodles in a trendy basement restaurant on Wangfujing street, we discussed a new book on theories of international law by a noted European scholar.

At the Asian Society of International Law conference hosted by Renmin University where Herbert and I read papers, scholars pondered the global shifts that had taken place since 2016. State sovereignty is back with a vengeance, said Society president Harry Roque. With the American retreat deep into national anxieties, emergent powers have freer rein to pursue their own vision of international relations in a multipolar world.

Cynicism is rife. Former colonies oppose universal rules with new vigor, saying such were made to favor former colonizers. The old logic of international law as might is right resonates with countries that should know better, precisely because, once upon a time, they were at its receiving end. But it pays to remember, argued professor Shinya Murase, that it was newly decolonized states (the Philippines included) that pushed the United Nations for equal human rights protection.

The drizzle is now a downpour, as we reach the gates of the colossal 18-hectare National Museum of China. Nearly half the size of our Mall of Asia, it’s a stone’s throw away from Tiananmen Square, scene of a massacre in 1989, when Chinese army tanks crushed a prodemocracy student protest. The carnage is forgotten while the museum runs a permanent exhibit, “The Road of Rejuvenation,” on the Western powers’ humiliation of China and its desire for vindication.

A beneficiary of the dividends of China’s huge investments in higher education, W. hopes to become a diplomat. For now, she volunteers for a Chinese NGO working among Syrian refugees in Turkey, and plans to get an internship at The Hague next year.
Though many Chinese universities now rank among the world’s best, few Filipinos think of Beijing as an education mecca. But we need to thoughtfully argue our rightful place as a nation, in a language that the Chinese understand very well—theirs.

If language is a door to a culture’s deepest thoughts, imagine Filipino legal scholars discussing fluently in Pinyin with their Chinese counterparts the finer points of China’s own Hobbesian realpolitik toward other states! In fact, we need more young Filipino scholars from all possible fields studying in the best Chinese universities.

There, they may yet win respect from China’s future leaders for the unfinished struggle for self-determination of Asia’s first republic.

Earlier published at : https://opinion.inquirer.net/117175/doing-long-haul-diplomacy-in-pinyin#ixzz5XYCO8xCN

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The Philippines’ Right to Self-Determination and the South China Sea Question

ONE WAY to frame the Philippine claim in regard to areas in the South China Sea is from the right to self-determination for its own people as to the use of natural resources that are rightfully theirs. As held in the East Timor case, such right is peremptory and invokes erga omnes omnium (universal) obligations. This is from the point of view of state responsibility reinforcing erga omnes partes (treaty) obligations.

Thus, under the law on state responsibility, states not party to the dispute in question have an obligation to respect the territorial integrity and sovereign rights of the Philippines; they are legally bound to refuse to recognize the Chinese Nine-Dash Line as lawful, and to refrain from recognizing or entering into any agreements with China for the unlawful exploitation of natural resources in the Philippine EEZ and the Continental Shelf.

There is also the positive duty on the part of all states to cooperate to put a stop to such unlawful acts. Even non-parties to the UNCLOS are bound by such an obligation, it being (jus cogens) peremptory in nature.

The Philippines’ entitlement to the fruits of such a right has already been confirmed and upheld by the landmark judgment of the Permanent Court of Arbitration in the South China Sea Arbitration case.

 Lawyer Joel Butuyan, in his Philippine Daily Inquirer column and Justice Antonio Carpio in his public statements have already pointed to the possibility of suing third parties conniving with China in exploiting resources within Philippine EEZ and the Continental shelf within the UNCLOS regime. 

The law on state responsibility solidifies the Philippine claim against such a situation through the legal effects of the right to self-determination. This is general international law complementary to the Law of the Sea regime.

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On the Chinese arbitral snub and new building spree in the West Philippine Sea

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its new slew of building projects on disputed reefs in the area backed by naval presence are “a serious and belligerent violation of” the UN Convention on the Law of the Sea (UNCLOS, outspoken Filipino legal academic told recent 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 maritime and naval forces to ward off any opposition.

Roque said these recent Chinese actions are “ill-distinguished conquests of territory through the use of force,” which is prohibited by both the UNCLOS and the UN Charter.

“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.

Moreover, China has publicly declared that its actions are an implementation of a new defense maritime policy which envisions “Sea Denial Capability” in the West Philippine Sea by 2020 .

The Philippines is asking 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 www.harryroque.com

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China’s territorial claims and the future of international law in Asia

By Romel Regalado Bagares

While the Chinese Communist Party wrestled with the challenges of political transition at home (including sex scandals, corruption and murder in the highest echelons of power),  the Chinese government has been picking quarrels with its much smaller neighbours over maritime territory.

Tensions over territorial disputes across the Asian region have led observers to wonder whether a China with immense economic needs and superpower ambitions is actually able to follow rules-based maritime regime under the UN Convention of the Law of the Sea (UNCLOS) vital to regional cooperation and stability.

Law of the Sea in the disputes

The UNCLOS establishes the reach of a coastal state’s 12- nautical mile territorial sea, 24-nautical mile contiguous zone, 200-nautical mile Exclusive Economic Zone, 200-nautical mile Continental Shelf and its 150-nautical mile extension. It also provides rules for the exploitation of mineral and marine resources found in the sea and the seabed as well as for resolving conflicting maritime claims.

With Japan, China appears to have  recently come dangerously close to a shooting war in a  dispute over the five small uninhabited islands and three rocks of the Senkaku in the East China Sea.

Japan has accused a Chinese warship  of locking its fire-control radar on a Japanese destroyer in the high seas near the islands —definitely an escalation from previous confrontations  between Japan and another claimant-nation, Taiwan, where ships from both sides engaged one another in water cannon -duels.

Indeed, China, which treats Taiwan as an estranged province,  denies the Japanese charge.

Meanwhile, in the South China Sea, an area rich in oil, gas and fishing resources, China is locked in a long-standing dispute with several Southeast Asian nations over the Spratly group of islands, namely, Malaysia, Vietnam, Taiwan, the Philippines, Brunei and Indonesia.

China, a signatory to the UNCLOS,  justifies its territorial and maritime claims in the region through its Nine-Dash Line declaration.

Click here for the full essay as it appeared in the University of Exeter’s ThinkIR Blog.

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Filed under Bajo De Masinloc, China, International Law, ITLOS, Nine-Dash Line Claim, Scarborough Shoal, UNCLOS, US Pivot

Taken for a ride, yet again

by Romel Regalado Bagares

A little more than a week ago, local and international news agencies were abuzz with reports about US Defense Secretary Leo Panetta’s announcement of a new “pivot” policy – a shift in American defense posture – one that would mean the redeployment of  60 percent of naval assets to the Asia-Pacific region by the year 2020.

Then as if on cue, Gen. Martin Dempsey, chairman of the U.S. Joint Chiefs of Staff, flew to Manila a few days after Panetta’s announcement for talks with his Philippine military counterparts.

At a press briefing in Manila, Dempsey said the shift would feature “three “‘mores” in US naval operations in the region —more attention, more engagement and more quality.

Foreign Affairs Secretary Alberto Del Rosario, reacting to Dempsey’s pronouncements, happily affirmed that the new American defense policy environment would mean Filipinos are to expect more port calls in the Philippines of American navy ships.

As Mr. Panetta was winding up his Asian trip,  President Benigno Aquino III met with President Obama  at the White House and the two leaders would subsequently announce greater cooperation in various areas, notably in common security concerns in the West Philippine Sea.

In addition, Obama promised increased military assistance to help the Philippines build a “credible minimum defense,” including a US$ 30 million grant this year – which is nearly double what it gave its former colony since the latter terminated the presence of US bases at Clark and Subic in 1991 – and a second decommissioned coastguard cutter for the Philippine Navy.

Despite loud denials from the Americans, the “pivot” is seen as an answer to the growing ambitions of China in the region, which threatens US access to international sea lanes crucial to its long-term economic and military interests.

Unprecedented tension between China and the Philippines over Scarborough Shoal in May this year seemed to have provided a perfect excuse for the US to reassert its presence in the region.

Indeed, US Secretary of State Hillary Clinton, testifying before the US Congress, warned against a  China increasingly asserting its dominance in the South China Sea with no qualms about violating the maritime jurisdictions of its neighbors in its quest for minerals and other raw materials its expanded economy needs.

No doubt, the Philippines occupies a strategic place in this major shift in US global defense posture.  Already, the country has proven to be an indispensable element in its global war against terror, with many parts of its archipelago providing  excellent training grounds for its newly-organized highly mobile, quick deployment units under a controversial  Visiting Forces Agreement (VFA).

Since May, a slew of US navy ships have called port in the Philippines, and following President Aquino’s US trip, more are expected to arrive, along with more US troops who will be fielded to the country on a rotation basis, purportedly for training and joint exercises with their Filipino counterparts.

We’ve been dubbed, since the Bush years, as a “major non-NATO ally” and three years ago –in the words of President Obama – as the “coordinator” for the US in the ASEAN region.

But do the Americans match their sweet words to the Philippines with equal deeds to help us develop “credible minimum defense”?

At first glance, it does seem like it: the Philippines is supposedly now the largest benefactor of the Pentagon’s Foreign Military Financing budget, receiving $11 million in 2005, $12 million in 2006,  $13 million in 2007 and $30 million this year.

However, we’re not even on the list of the top ten beneficiaries of US defense assistance three years after 9/11, according to data from the US Center for Public Integrity:  (figures have been rounded-off): Israel (US$9 billion), Egypt (US$6 billion), Pakistan (US$4.6 billion), Jordan (US$2.6 billion), Afghanistan (US$2.6 billion), Colombia (US$2 billion), Turkey (US$1.3 billion), Peru (US$446 million), Bolivia (US$320.6 million) and Poland (US$ 313 million).

The Asian country nearest to us who is on the list is Pakistan. Compared to what Pakistan is getting from the US, our share of foreign military financing is peanuts.

Over the last few years, the US has given more than $ 7 billion to Pakistan in direct assistance – that is, in funds to purchase weapons, supplies and equipment, purportedly to help it fight the Taliban. With all that money, it is a wonder how Osama Bin Laden was able to elude Pakistani intelligence, as he was able to live a comfortable existence in a walled off mansion in Abbottabad for many years right under their noses.

Compare that to American military aid to the Philippines, which comes in the form of financing; that is, no money actually reaches Philippine coffers. Funds are directly paid to American firms contracted by the US government to supply mostly refurbished equipment to the Philippine military, like Vietnam-war era helicopters, trucks and patrol boats. Recently, the US has agreed to hand down to us two decommissioned Coastguard cutter but stripped of most of its armaments. The first delivery, which the Philippine Navy renamed BRP Gregorio Del Pilar, was the same vessel that chanced  upon Chinese fishing vessels poaching mostly endangered marine species at Panatag Shoal.

Philippine Navy top brass, on the eve of President Aquino’s US visit, pleaded with US authorities to deliver to us the second Coastguard cutter without removing its armaments.  But the plea from a major non-NATO ally and coordinator for the ASEAN fell on their deaf ears, even if it only concerns two 40-year old ships that have already seen better days.

So, what credible minimum defense capability for the Philippines is the United States talking about? We’ve gotten a raw deal before and we’re getting more of the same treatment from the Americans, who obviously want to keep us in relationship of dependency so that we will always be at their beck and call.

It is no wonder that despite years of American military aid to the Philippines, our armed forces remains the most poorly-equipped in the Asian region. Barya-barya lang at mga pinaglumaan na ang bigay nila sa atin. After all these years, we’re still being treated by the US as its toady and not as its equal.

On the same week Mr. Panetta announced a “pivot” in US defense policy, CNN broke the news that the US government
has decided to cut aid to a Pakistani version of “Sesame Street” because of charges of corruption. The price tag: US$ 20 million.

The Americans like us very much because they get so much from us for so little in return.

*

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Resolving the Scarborough Shoal Dispute: “Thick” or “Thin”?

By Romel Regalado Bagares, Esq.

The recent incident at the Scarborough shoal is no doubt the most brazen move thus far by the region’s certified Biggest Bully – China – in the escalating history of its altercation with the Philippines over territory.

From reports, it appears that the Philippine Navy’s BRP Gregorio Del Pilar had discovered eight Chinese fishing vessels poaching large quantities of endangered marine species, including live sharks, at the shoal. The resulting standoff – and our seeming inability to act decisively on a critical national security concern –further showed the vulnerabilities of the Philippines in a dispute over territory with an emergent world economic and military power.

But there are two ways of looking at the territorial dispute, which I will call the “thick” and the “thin” approaches. Our new baselines law, Republic Act 9522,  classifies Scarborough shoal as a regime of islands under Art. 121 of the Law of the Sea Convention (LOSC). Under LOSC, a regime of islands has its own territorial sea, Exclusive Economic Zone (EEZ) and Continental Shelf.

Obviously,  RA 9522 assumes that the shoal is part of Philippine territory in the fullest sense of the term. From that perspective, the reckoning point therefore is the shoal as an island grafted into Philippine territory.

It is what I call the thick approach, precisely because the claim to be made from it is full sovereignty as understood in the national territory clause of the Constitution. Since it is a regime of islands, a case can well be made that what the Chinese fishing vessels did was violate its territorial sea, given the facts available to us. Given the shoal’s classification under RA 9522,  it would appear that the Chinese had violated its territorial sea, which extends from its coast up to a distance of 12 nautical miles.

The thin approach is what the Department of Foreign Affairs (DFA) has been saying all this time: that the Chinese violated our EEZ, reckoned from the base points off the coast of Zambales, as from those points, the shoal, which is about 137 nautical miles away from Palauig town in the province, no doubt falls within the said maritime regime. This approach is so-called, because under the EEZ, the Philippines has “sovereign rights” to the marine resources found in the area, to the exclusion of all the others.

The regime of sovereign rights is not the same as full sovereignty. It is limited only to the economic exploitation of resources found in the shoal, subject to certain conditions, and cannot be equated with the full exercise of sovereignty control of every piece and bit of territory there in the concept of an owner. It is otherwise known as “protective jurisdiction.”

But either way – thick or thin – we may now have a way to take the Chinese to compulsory arbitration with a final and binding judgment, which they have not been keen on doing.

The thin approach does not even require the Philippines to assert that the shoal is a regime of islands. The shoal may well be no more than rocks or coral reefs but even China recognizes that the area falls within the Philippine EEZ, except that they maintain that the Philippine claim to sovereign rights falls in the face of China’s mainly historic title to the shoal (which claims are highly doubtful, from the point of view of contemporary international law, which generally dismisses historic title as ineffective).

What the DFA doesn’t seem to realize, Prof. Harry Roque notes, is that the issues surrounding the shoal are different from those in the Spratlys.

Unlike issues involving the exercise of sovereign rights, which are subject to the compulsory jurisdiction of the International Tribunal on the Law of the Sea (ITLOS), conflicting claims to both maritime and land territory – as what obtains in the Spratlys –  will require the consent of China to litigate.

“The point is,” says Prof. Roque,   “with the incursion of China in an undisputed maritime area under the sovereign right of the Philippines, we could avail of mandatory and compulsory jurisdiction of the UN’s ITLOS, which we could not otherwise resort to in the case of the Spratlys.”

The general principle in the LOSC is that any dispute over the interpretation or application of a provision of the treaty is subject to the system of compulsory  binding dispute settlement. Thus, by becoming a party to it, State Parties consent to disputes being referred to adjudication or arbitration.

Not many people know that China is also party to the Law of the Sea Convention, except that on August 25, 2006,  it has invoked  the so-called art. 298 exception, which allows it to opt out of compulsory arbitration in cases of  disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction  as well as sea boundary delimitations, or those involving historic bays or titles.

However, China, under this declaration, cannot say that by virtue of the art. 298 exception, it cannot be dragged into an arbitration because the events at Scarborough shoal concerns a dispute on law enforcement activities in regard to the exercise of sovereign rights. This is because it has already conceded that the shoal falls within the Philippine EEZ and is well beyond its own EEZ.

Under art. 297 (3) of the LOSC,  it is the coastal state, in this case, the Philippines, which has the option  “ to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.” That right does not belong to the offending state, China.

Indeed, in its declaration on June 7, 1996 – the date it ratified the LOSC – China announced that in accordance with the Law of the Sea, “the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.” The shoal is already beyond the scope of this declaration because it has already conceded that it lies within our EEZ.

According to Prof. Roque, this may well be our strongest suit, since the issue involved is cut-and-dried: did China, which has accepted the shoal in question as part of the Philippine EEZ, violate the Philippines’ sovereign rights over the waters surrounding the shoal?

Meanwhile, the “thick” approach — which is also favored by some Filipino Law of the Sea experts like my  law school contemporary, Dr. Lowell Bautista, a research fellow at the Australian Centre for Ocean Resources and Security —  is anchored on the classification of the shoal as a regime of islands.  The Philippines may take China to a compulsory arbitration with the ITLOS under Art. 288  of the LOSC on a question of interpretation: given the physical configuration of the shoal, is it  in fact an island?

The answer to the question will open the door for further clarification on which rights the Philippines would be entitled to claim over the area. One advantage to this approach is that even the Chinese themselves consider it an island, as they in fact, call it the Huangyan Island. So they are already bound by that characterization, and would not be able to effectively dispute an affirmative answer to the question by the international tribunal.

Note that resorting to the thin approach does not necessarily mean waiving our claims to the shoal as an island squarely belonging to the Philippines as its owner. The two approaches are not mutually exclusive.

In either case, we can immediately sue China before the ITLOS, with the added incentive that the international tribunal has the power to issue provisional remedies, such as prohibiting any of the parties from doing something that would disturb the status quo while the case is being heard.

But the obvious limitation to the thick approach is that resolving the question is only the first step;  it does not really address the question of ownership of the island. For that, we will need more than the Law of the Sea; following the ruling of arbitrator Mr. Max Huber in the landmark Las Palmas arbitration, we will have to resort to general international law requirements for establishing ownership, in particular the various indicia of “effective occupation”, such as enforcement of fishery laws, customs and taxation management, attachment to local government control and the like.

Of course, the next question is, given the bullying tactics of China, how do we establish effective occupation over the shoal – is the P-Noy administration up to the challenge? Or is it even willing to do what past administrations have failed to do:  sue China before the ITLOS on even just a question of sovereign rights over the shoal?

*(4/15/12) the author is Executive Director of the Center for International Law, an NGO dedicated to the promotion of the Rule of Law in the Philippines and Asia through binding international legal norms, and a professorial lecturer in public and private international law at the Lyceum Philippines University College of Law.

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Filed under International Court of Justice, International Law, Scarborough Shoal, UNCLOS