Tag Archives: South China Sea

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.

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

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

Philippine and Chinese Analysts on the Scarborough Shoal Dispute

Prof. Harry Roque and I were recently interviewed by Caixin Media, a path-breaking, Beijing-based bi-lingual publication,  on the Scarborough Schoal Dispute between the Philippines and China.  We didn’t know how the interviews would be presented. It turns out the magazine also got on board two Chinese discussants, who were separately interviewed.

They were Zhang Jianjing,  managing editor of China Reform, Caixin’s monthly magazine featuring extensive commentary and analysis on political and economic issues and Huang Shan, chief of Caixin’s international desk.

First, a note on Caixin Media:

Caixin Media is recognized for fearless investigative journalism as well as comprehensive coverage of business and finance in China. It was hailed internationally as “one of China’s more outspoken media organizations.” At the end of last year, Caixin was awarded the 2011 Shorenstein Journalism Award by Stanford University, the first Asian winner in the award’s history. Caixin editor-in-chief Hu Shuli was named one of Time Magazine’s Top 100 Influential People in 2011, while managing editor Wang Shuo was named as one of the World Economic Forum’s Young Global Leaders earlier this year.

It’s editor-in-chief, Hu Shuli, was profiled in the New Yorker in 2008.

Here’s the link to the running discussion, as presented by the magazine.

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Filed under International Law, ITLOS, Scarborough Shoal, UNCLOS