By Ellen T Tordesillas and Tessa Jamandre, VERA Files
That’s because the Philippine team won’t be arguing its territorial claims, which are not under the jurisdiction of the Arbitral Tribunal in The Hague in the Netherlands.
“We are very confident that we can convince the court that this is not about ownership of land,” said former solicitor general now Supreme Court justice Francis Jardeleza, who is part of the Philippine team.
Instead, the Philippines merely wants the Tribunal, which interprets UNCLOS, to invalidate China’s 9-dash line claim over the South China Sea.
Territorial claims are the jurisdiction of another body, the International Court of Justice (ICJ), and the ICJ only entertains cases if all parties in the dispute participate. China has refused to do so.
But although the Philippines is not arguing about who owns what in the South China Sea, its arguments have been misconstrued as such. Jardeleza, in fact, said, “For example, we’re not asking the court to say who owns Panatag shoal. We are arguing that they are within our EEZ and therefore under the rules of UNCLOS we have exclusive rights to fish within that area.”
It is this posturing by the Philippines that China calls sly and cunning. Although saying it is not making a territorial claim before the Tribunal, the Philippines’ words practically establish ownership of islands and areas, the Chinese government said.
In its position paper submitted in December 2014, China said, “The Philippines has cunningly packaged its case in the present form.”
“This contrived packaging, however, fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea,” China’s position paper adds.
The hearing at The Hague this week, however, comes at time of heightened tensions between the two countries, with China speeding up the reclamation of disputed islands in the South China Sea, even building on those the Philippines claims as part of its territory.
The top-level team of Philippine government officials preparing to face the Tribunal is composed of two Supreme Court justices, the leaders of Congress, and the secretaries of foreign affairs and justice, as well as the executive secretary.
The team includes Senior Associate Justice Antonio T. Carpio, who has been delivering lectures on the South China Sea conflict, and Jardeleza, who was solicitor general when the Philippines first submitted its memorandum to Tribunal on March 30, 2014. A memorandum is called a memorial in international law.
Also in the team are Senate president Franklin Drilon, House speaker Feliciano Belmonte, foreign affairs secretary Albert del Rosario, justice secretary Leila de Lima, and executive secretary Paquito Ochoa.
Leading the Philippine legal team are solicitor general Florin Hilbay and Paul Reichler, a Washington-based lawyer, who are expected to tell the Tribunal that the Philippines’ arbitration case against China is solely a maritime dispute and does not involve any territorial conflict.
The Philippines, in all its submissions to the Arbitral Tribunal, emphasized that it does not seek a determination on which party enjoys sovereignty over any of the insular features claimed by both but has confined itself to raising claims that require the interpretation or application of UNCLOS.
The Philippine has asked the Court not to “bifurcate” or divide in two parts the jurisdiction aspect and the merits of the case.
“There’s so much tactical advantage to that procedure because we are very strong on the merits and by discussing the merits more and more you gain an advantage hoping to convince the tribunal that they should take the case and rule that they have jurisdiction,” Jardeleza said.
Last April, the Permanent Court of Arbitration (PCA) that acts as a registry in the UNCLOS dispute settlement procedure, announced the hearing on the Arbitral Tribunal’s jurisdiction in the Philippine case versus China would be held July 7 to 13.
If the team is unable to convince the Tribunal, “that’s the end,” said Foreign Affairs Spokesperson Charles Jose.
But if the Tribunal rules it has jurisdiction, “It’s almost an 80 per cent chance of winning the case,” said lawyer Harry Roque, director of the University of the Philippines Law Center’s Institute of international Legal Studies.
China’s Dec. 7, 2014 position paper states: “The Philippines’ claims is in essence one of territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention. Consequently, the Arbitral Tribunal has no jurisdiction over the claims of the Philippines for arbitration.”
Roque said the UNCLOS dispute settlement procedure is limited to “interpretation and application of the UNCLOS.”
“It is not involved in matters of sovereignty,” he said.
Carpio explained in one of his lectures on the South China Sea conflict, “The Philippines is asking the tribunal if China’s 9-dash lines can negate the Philippines’ 200 nautical mile exclusive economic zone as guaranteed under UNCLOS.”
“The Philippines is also asking the tribunal if certain rocks above water at high tide, like Scarborough Shoal, generate a 200 NM EEZ or only a 12 NM territorial sea. The Philippines is further asking the tribunal if China can appropriate low-tide elevations (LTEs), like Mischief Reef and Subi Reef, within the Philippines’ EEZ. These disputes involve the interpretation or application of the provisions of UNCLOS,” Carpio added.
Jardeleza said, “Our claim is a very narrow one, land dominates the sea. This is not a case about land; this is a case about the maritime waters which is perfectly under UNCLOS.”
The PH legal team is expected to justify its decision to seek compulsory dispute settlement after it has exhausted the negotiation tack, both bilateral and multilateral as required by UNCLOS.
China insisted in its position paper that “disputes between the two States shall be resolved through negotiations and there shall be no recourse to arbitration or other compulsory procedures.”
The team is also expected to tell the Tribunal that talks between the Association of Southeast Asian Nations (ASEAN) and China on the Code of Conduct on the South China Sea is inadequate, as its objective is to promote peace and stability in the region by coming up with a code on how claimants should conduct themselves pending resolution of the dispute.
Aside from Hilbay and Reichler, other members of the Philippine legal team are British law professors Philippe Sands and Alan Boyle and Bernard Oxman from the University of Miami’s Law school.
The five-member Arbitral Tribunal is chaired by Judge Thomas A. Mensah of Ghana. The other Members are Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of Poland, Professor Alfred Soons of the Netherlands, and Judge Rüdiger Wolfrum of Germany.
(VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”)
These clowns from the two houses running for reelection? These lawmakers since the 80s have nothing to show for regarding this issue.
Kahit siguro maging invalid yung 9dash line ayon sa interpretation ng UNCLOS ano naman ang kaya nilang gawin para ipatupad yung international law? Wala namang batas na ginagalang ang komunistang tsina. Siguro kung yung batas ay pabor sa kanila, may respeto at paggalang sila.
Sabi pa ng China “forget about the case, let’s sit down and talk.” Punyeta, mga bastos nga at walang galang, let’s sit down and talk.
Masarap pakinggan sa tenga na ang hatol ay pabor sa Pilipinas. Ang tanong, ano na pagkatapos ng hatol?
pagkatapos ng hatol? hindi pa nga siguro naibababa ang pinal na hatol, tapos na ang termino ni noynoy.
ito ang isang kaso na dapat ay tinutukan ng husto sapagkat mula’t mula pa lamang ay pawang pangbabraso na ng china ang naranasan ng ating mga kawawang mangingisda mula sa zambales. nasa bakuran mo na nga inaangkin pa. paano pa kung itong abot talsik lang ng laway mo ay makamkam nila, pati buong bahay ay isusunod na?
sino kayang may tapang na magiging presidente ang tatayo upang harapang ipamukha sa mga singkit na ‘yan na ang inaangkin nilang teritoryo ay kabilang sa soberenya ng pilipinas? hindi sila hinahamon ng giyera, dahil wala namang ikakaya ang pilipinas sakaling pumalag ang china.
kung sana ay marunong mag-analisa ang mga pinuno natin at bumasa ng kilos ng kalaban, meron tayong matibay na pananggalang kung mauwi na talaga sa patayo ang labanan. minsan ko nang nai-post ang comment na ito sometime in june 2013 at ito lamang sa palagay ko ang akma sa ating depensa kung sakaling giyera ng nga ang kalabasan ng pag-aangkinan sa bahagi ng teritoryong hindi mapasusubaliang sakop ng pilipinas.
CABBAGE STRATEGY
By FORMER SENATOR ATTY. RENE ESPINA
A CHINESE People’s Liberation Army (PLA) officer was r e c e n t l y quoted by the media as saying that their PLA strategy to assert and occupy the reefs, islets, islands in the Spratlys which is in the West Philippine Sea is to deploy warships in the perimeter.
On the second perimeter is their equivalent of our Coast Guard and Fisheries Department vessels. The final perimeter around the shoals, islands, islets, reefs which they intended to physically possess are the numerous Chinese fishing boats. Thus, like a cabbage, the various layers prevent Philippine sea craft whether Navy, Coast Guard, or fishing vessels from having access to the area.
The PLA officer further explained that the PLO warships would stop any Philippine ships from breaking into encircled reefs, islet, islands. If by chance, any Philippine ship surreptitiously passes through their Coast Guard/Fisheries vessels, they would be stopped by the Chinese fishing boats that will be so numerous that no alien ship will dare to pass through the civilian craft.
When a Philippine Navy, Coast Guard, or civilian vessel is unable to reach a disputed islet/reef, then the PLA has physically asserted its “right” over the area which is covered by China’s “nine-dash” line in the South China Sea (West Philippine Sea). For example: Mischief Reef and lately Scarborough Shoal. The present situation in the West Philippine Sea cannot be blunted or changed by mere strong words; some other measures or strategy has to be done.
Sure our Philippine action in bringing the matter to the UN Arbitration Tribunal for compulsory arbitration is substantially advantageous. But we should not allow the bullying actions of the People’s Republic of China in the West Philippine Sea to continue without a proper response. First before we can even determine what the Philippine reaction would be, let’s all agree that our attitude as a nation would be like that of the “red ants.” When an animal tramples on a red ant hill, their “warrior ants” come out to fight; not even a panda would escape their wrath.
Let those who think they can scare us realize that we are like red ants. We will defend our territory with whatever resources we have. By all means let us acquire the necessary armaments that will produce the most effective defensive and offensive capability with the least cost and, at the same time, with the least vulnerability.
As I have written before, I believe we should stop buying second-hand armaments like the refurbished US Coast Guard Ships. They could become sitting ducks against the PLA Navy which has missiles. Ships and airplanes are just platforms for weapons, so that they can be carried and brought for action in the theater of operations. We are facing a PLA that has numerous ships, airplanes, and helicopters. So, two US Coast Guard Ships which the Philippine Navy has just acquired are nothing compared to the strength of the PLA Navy. Instead why don’t we acquire state-of-the-art missiles that will provide defensive and offensive capabilities that will at least cover our territorial waters as well as the exclusive economic zone in the West Philippine Sea. Let’s use the “BRP Palawan,” “Mindoro” and “Zambales” – “our unsinkable aircraft carriers.”
Yes, these provinces can be armed with missiles that cover the Spratlys as well as Scarborough. Perhaps with the existence of such “unsinkable warships,” our diplomatic initiative to settle peacefully our dispute will be addressed by the opposing party with serious consideration.
In realpolitik, foreign relations can be conducted with better chances of success when that country has the means to credibly defend its territory. rene.g.espina@gmail.com
hindi ba’t habang nagngangawa ang mga nasa malakanyang ay pawang pagpapalakas ng puwersa ang hakbang ng china? sino ba ang mag-aakalang magagawa nilang makapagtambak at gumawa ng artificial land mass na ngayon ay life sustaining na kumpara sa sinasabi ng mga sobrang talino nating opisyales ng gobyerno na walang halamang tutubo sa mga lugar na nabanggit? hindi ba’t nagpalabas na ng mga litrato ang PLA ng malulusog na pananim na maaari nang pag-anihan sa mga potted plots na kanilang nilinang?
tsk. tsk. tsk.
dito natin makikita kung saan lamang magaling ang karamihan sa ating mga pinuno.
alam n’yo na marahil kung ano lamang at para kanino ang kanilang kayang gawan ng paraan.
wala akong sinasabing magaling lamang sila sa pangungurakot. masama ‘yun! hindi nila gagawin ‘yun.
NANG GARAPAL!