Tag Archives: ITLOS

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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Filed under China, International Law, ITLOS, Nine-Dash Line Claim, Scarborough Shoal, UNCLOS

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

After the China Snub, What Next?

 

Yahoo News Philippines just published a piece I wrote  for VeraFiles  on the simmering legal dispute between the Philippines and China over the West Philippine Sea (South China Sea).

Click here for the full essay.

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

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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