The Philippines is taking the South China sea’s bully to court

Posted on January 28, 2013

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Manila challenges Beijing’s South China Sea hegemony

Shoal at center of territorial spat

The Philippines said Tuesday that it is taking its feud with China over competing territorial claims in the South China Sea to an international tribunal.

Philippines Foreign Secretary Albert del Rosario’s office summoned Chinese Ambassador Ma Keqing in Manila and challenged the assertion that China’s sovereignty extends over “virtually the entire South China Sea.”

Manila says China seized control of the Scarborough Shoal, a rocky outcrop, last year and then illegally barred the Philippines from the area. China calls the shoal Huangyan Island.

Manila wants a tribunal operating under the 1982 U.N. Convention on the Law of the Sea to declare as “unlawful” Beijing’s actions in the disputed waters.

“The Philippines has exhausted almost all political and diplomatic avenues for a peaceful, negotiated settlement of its maritime disputes with China,” Mr. del Rosario said at a news conference in Manila, according to a report by The Associated Press. “To this day, a solution is still elusive.”

Ms. Ma’s office reiterated China’s position that it has indisputable sovereignty over the islands in the South China Sea, China’s official Xinhua News Agency reported.

“The Chinese side strongly holds the disputes on South China Sea should be settled by parties concerned through negotiations,” Ms. Ma said in a meeting with Theresa Lasaro, assistant secretary of the Philippine Department of Foreign Affairs.

Meanwhile, a Japanese envoy visited Beijing on Tuesday for talks aimed at calming tensions over another island dispute. Beijing and Tokyo claim sovereignty over a group of five East China Sea islands, known as Diaoyu in China and as Senkaku in Japan.

Natsuo Yamaguchi, the Japanese official, reiterated Tokyo’s position that the islands are Japanese territory and rejected Chinese demands that Japan acknowledge a dispute over their sovereignty.

“If warlike propaganda is any indicator, a military confrontation between China and Japan could soon erupt, and America will have to choose sides,” said John J. Tkacik Jr., director of the Future Asia Project at the International Assessment and Strategy Center.

“Thus far, however, the Obama administration judges it has little influence on Beijing and instead urges Tokyo not to ‘provoke’ China. Even this is too much for the Chinese,” he added.

Beijing on Sunday lashed out at Secretary of State Hillary Rodham Clinton saying she “ignores the facts and confuses right and wrong” on the island dispute with Japan.

The statement was a reaction to Mrs. Clinton’s comments after a State Department meeting with Japanese Foreign Minister Fumio Kishida on Friday. Mrs. Clinton said the Obama administration opposes “any unilateral actions that would seek to undermine Japanese administration” of the islands.
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The Chinese Foreign Ministry’s chief spokesman, Qin Gang, said that the Japanese government has “insisted on taking the wrong action of purchasing the Diaoyu Islands and has constantly escalated its provocation.”

“The U.S. has unshirkable historical responsibility on the Diaoyu Islands issue,” he added.

Mr. Tkacik said: “Having made his ‘pivot to Asia,’ Mr. Obama cannot afford mixed signals to an increasingly assertive China, which sees itself as Asia’s rightful hegemony, or to a cornered Japan counting on an uncertain American ally.”

“His choice will set America’s course in Asia — and China‘s, as well — for the next several decades,” he added.

Washington Times

A rightful challenge to China

The Philippine government’s decision to challenge China’s expansive claims to the South China Sea by invoking the arbitration provisions of the UN Convention on the Law of the Sea (Unclos) is both unexpected and overdue.

Many simply assumed that the government’s legal option (its so-called third track of resolving the conflict over territorial and maritime claims, after political means and diplomatic measures) meant filing a case before the right court; in this case, the International Tribunal on the Law of the Sea (Itlos), in Hamburg, Germany. At the same time, the clear and compelling arguments for the Philippine case fed a growing impatience for legal action. Why did the Department of Foreign Affairs (DFA) take so long?

Officially, the DFA answer is that it wanted to try all other avenues for a peaceful resolution of the dispute. “Having exhausted all possible initiatives, we feel the time to act is now. If we do not act now, we will be in default,” was the second item in the prepared Q & A list the DFA distributed on the day it announced the legal action. But it is no secret that the administration needed the time, not only to prepare its case, but to study its legal choices carefully.

On initial view, it seems the government has chosen well. Lawyer Harry Roque, an expert in international law and a Socratic gadfly in Philippine politics, praised the action, in particular the framing of our case: “Credit goes to the solicitor-general [Francis Jardeleza] because our submission of claims is crafted in a manner that will exclude all of China’s reservations,” he wrote in a commentary.

What the government has done is to begin the proceedings of arbitration (the third of four possible means of resolving disputes involving Unclos) – essentially calling on China to co-form an arbitration panel to resolve only one aspect of the dispute: claims about waters and the continental shelf. (The Unclos does not apply to conflicting claims involving islands.)

As the DFA explained: “China’s nine-dash line claim encompasses practically the entire West Philippine Sea. We must challenge the unlawful claim of China under their nine-dash line in order to protect our national territory and maritime domain.”

After the DFA handed a note verbale explaining the legal action to the Chinese ambassador in Manila, the Chinese Embassy predictably reiterated the official Chinese position that the conflicting claims be resolved through bilateral talks. “The Chinese side strongly holds [that] the disputes on the South China Sea should be settled by parties concerned through negotiations,” an embassy statement read.

But China only insists on direct negotiations in those disputes where it sees itself as enjoying an advantage. That makes any attempt to resolve the conflict over claims subject to Beijing’s increasingly assertive exercise of its new superpower status, rather than a reasoned discourse over legal and historical evidence.

When China suffers from a disadvantage, however, multilateral dispute-resolution mechanisms become an option. In its dispute with Japan over islands in the East China Sea, which the Japanese call Senkaku and the Chinese Diaoyu, for example, Tokyo enjoys the distinct advantage of possession. To counter this advantage, Beijing filed a submission before the Commission on the Limits of the Continental Shelf (another Unclos forum) just last month, seeking information “concerning the outer limits of the continental shelf beyond 200 nautical miles in part of the East China Sea”.

This is the same commission that declared early last year that the massive Benham Rise (in potentially oil-rich waters to the east of Luzon) is officially a part of the Philippines.

Whether Beijing will agree, in the Philippine case, to the arbitration procedure outlined in the very law of the sea which anchors its submission in the Japanese dispute remains to be seen. It seems to have learned its lessons from the example of the other superpower, the United States, in dealing selectively with multilateral forums. To be sure, the arbitration provisions under the so-called Annex VII themselves allow for compulsory proceedings; Article 9 includes the principle that “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”

With this legal challenge, the issue, finally, is joined.

Philippine Daily Inquirer

Why Manila is taking China to tribunal

Last week, the Philippines sought to increase pressure on China over its claims in the South China Sea by filing a legal claim against the country under the U.N. Convention on the Law of the Seas. While unprecedented, the Philippines knows that it cannot afford derailing the economic relationship with its third largest trading partner, China, and a verdict – to be issued several years down the line – will ultimately be unenforceable.
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Why, then, would the Philippines take this action now, given the irritation it might cause China, risks to economic relations, and the likely minimal impact it will have on altering China’s behavior?

One overarching reason is that in Asia, international relations, at least in the political sphere, are dictated largely by domestic affairs. The legacy of colonialism, and its associated web of international alliances, means that East Asian countries often distrust their neighbors and global powers as well. Distrust has created insular and highly nationalistic policies, a convenient tool for governments wishing to pin domestic governance and economic challenges on the legacy of foreign oppression.

The South China Sea is an ideal distraction from the domestic challenges of Asian countries. The territory is believed to hold significant energy resources, but how much is unknown. At present, countries in the region are sufficiently resourced to maintain their (slowing as they may be) growth trajectories. If domestic energy sources dry up, the challenge of maintaining peace will be even greater.

But the international news media is prematurely hyping the disputes and highlighting the verbal barbs being traded between countries at all levels. It’s true, as The Economist pointed out this past week, that a clash over territory would “imperil the region’s peace and its momentous economic advances.” But this isn’t going to happen, at least not yet.

Risking a conflict over the South China Sea area – and the coinciding economic collapse – would pose a greater risk for domestic political leadership, and so naval vessels and troops remain largely stationed at home.

So while a statement released by the Philippines read, “One cannot put a price in the concerted effort of the Filipino people and government in defending our patrimony, territory, national interest and national honor,” the country would be misguided in pursuing anything more than legal action.

In the Philippines, and other countries in the region, the price for maintaining “national honor” with force is prohibitively expensive. Blustering, however, ultimately serves domestic political interests as creating a unified, national stance is quite valuable for political parties wishing to secure their futures in a tenuous political environment.

The South China Sea dispute has long evoked nationalist feelings. In 2007, protests over the South China Sea curiously materialized in Vietnam, and then quickly faded. One Sunday in front of the Chinese Embassy and Consulate in Hanoi and Ho Chi Minh City, for example, protestors took to the street, a strange sight in Communist controlled Vietnam, where public protest is typically curtailed.

Police stood by, watching the protestors picket, then, like they had been queued to take action from the top, the police quietly shooed the protestors away. It made for a couple of nice snapshots in local and international papers, but none of the protestors objected to putting their placards away.

A week later, the protests seemed to become more organic in nature, as comments labeling China as the oppressor were bandied about the blogosphere, as well as the streets. China objected, but Vietnam’s “crackdown” on the protests seemed almost to have been staged. The protests were a reminder to the Vietnamese people – most of whom have no direct stake with respect to the dispute – about China as the historic aggressor that the Vietnamese military successfully thwarted in 1979.

Fast-forward again to 2013. In 2007, U.S. interests were squarely in the Middle East and South Asia, centered on Iraq and Afghanistan. Interest in the Asia Pacific was being curtailed. Now, the U.S. government’s return to the region further complicates the South China Sea matter, and vexes regional governments unsure of what lengths the U.S. would take in order to stand up for its regional allies. Is America willing to step up and intervene on any of the bilateral disputes, and will U.S. ships in the region act as a stabilizing force?

But ultimately it is nationalist forces within the most vociferous claimant countries of the Philippines, Vietnam and China that can be blamed most for present tensions for three reasons.

First, by asserting sovereignty – even if illegitimately – over a disputed area, a government is able to project an image of power and influence that reinforces its authority. Second, the contradictory assertions of sovereignty by the various claimants help to create an “enemy” that governments can cast as a scapegoat for certain domestic issues and deflect hostility toward. This also engenders greater appreciation for those in office, as it creates a situation that encourages citizens to rely on their governments for protection. Third, the contentious claims regarding the South China Sea shift focus in the direction of international problems and away from domestic ones.

Despite nationalism’s propensity for polarizing states, entering into sustained military conflict would undermine these governments’ ability to fulfill societal demands for economic growth, institutions, and security as described above. Protracted military conflict is unlikely owing to the financial costs and risks to property and life. For this reason, greater conflict will not emerge in the near-term.

The parties will continue to agree to disagree, but the conflict is  unlikely to escalate much further in the next decade at least.  In the meantime, it is unfortunate that opportunities to cooperate on a range of regional issues will be hampered.

Andrew Billo

Legal route to resolve South China Sea dispute a political minefield

The legal process begun by the Philippines to challenge claims by China to the South China Sea surprised the region. International arbitration is allowed under the UN Convention on the Law of the Sea, but the move adds urgency and new elements to a trying political scene.

Relations between the two nations over competing claims have been tense in the past year, with vessels standing off for months near Scarborough Shoal. The issue also affected Asean unity last year, when then chairman Cambodia could find no compromise wording for an official statement.

What does this new move portend? At first glance, it is a legitimate step, supported by the various calls for parties to use international law, rather than force. China has accepted the UN convention and now faces a difficult choice.

Arbitration for this sea treaty is compulsory and a timeline will unfold in the coming weeks in which the International Tribunal for the Law of the Sea will require arbitrators to be nominated and a schedule set out for the case. If Beijing refuses to participate, these proceedings can still go ahead without it.

If China does take part, it can challenge the questions that can be addressed. The scope of jurisdiction in this particular provision is limited and cannot include issues like sovereignty over the rocks.

Even if China participates and loses, it can refuse to comply and there will be no penalties or police to enforce the ruling. Global public opinion could, however, be affected. Manila’s legal move must therefore be seen in a broader political context.

Some Chinese will suspect a conspiracy or concert against them. The United States’ rebalancing to the region has co- incided with the resurgence of the long-standing disputes in the South China Sea. Philippine President Benigno Aquino has invited American forces to consider arrangements to visit his country for extended periods. This is in sharp contrast to the past Corazon Aquino administration that ordered the closure of US bases.

Japan’s role will also be questioned. Representing the new Shinzo Abe administration, Foreign Minister Fumio Kishida chose Manila as his first overseas visit. There, he promised to provide coast guard vessels and found a welcome for the idea that Japan should re-arm.

This comes amid increased tension between Tokyo and Beijing over the Senkaku/Diaoyu Islands. Some will therefore question the coincidence that the legal challenge has come so soon after the visit. Another coincidence is that the tribunal for the law of the sea has a Japanese national as its president – Shunji Yanai – although he is not under instruction from Tokyo.

It is therefore for the better that steps be taken to stabilise relations. The new Chinese Communist Party chief, Xi Jinping , has called for co-operation to handle “sensitive” issues effectively and in a timely manner. This came when China received Natsuo Yamaguchi, leader of the New Komeito party, the junior coalition member in the current government.

The future tenor of US-China ties is harder to read as key appointments to the state and defence departments are still pending and new Chinese leaders are settling in. President Barack Obama did, however, set clear priorities in his inaugural address that focus on domestic issues. Moreover, having trumpeted the coming end to a decade of war, Obama should be cautious about engaging in potential Asian conflicts, even if allies wish otherwise.

In this context, it is critical that the Association of Southeast Asian Nations maintains its neutrality. Although the Philippines is a member of the group, others in Asean – whether collectively or individually – were not consulted on the legal challenge. The Singapore government, for example, has said it first heard about it through the media. Manila’s right to take this route was also acknowledged as its own national decision.

However, Asean neutrality cannot mean inactivity. On the contrary, the current Asean chair – Brunei – must work with others in the group to rebuild trust, with the aim of beginning negotiations on a code of conduct for activities in the contested areas.

Last year’s July 12 statement on Asean’s six-point principles on the South China Sea bears reiteration. It will be critical that China is a part of this negotiation – as much as the Philippines and other claimants – and not feel that the 10 smaller countries are ganging up.

The legal process will move ahead – quickly and quite inexorably. It must also be expected that China will use economic and other levers to express its displeasure with Manila. The Philippines is testing China’s intentions in law but its own endurance will be tested in economic and political spheres.

Challenging China under the UN convention is a decision by the Aquino administration that international law allows and no other country can stop. But what others in the region can and must do is help prevent the legal process from creating a political mess.

Simon Tay

China gave Philippines no choice but to go to U.N.

‘This suit, the first against China at the UN, does not augur well for a new leadership that would come in next month.’

SO far, all that Beijing has said of the Philippines’ suit asking the United Nations to declare as illegal its nine-dash-line map is that it “will complicate the issue.”
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China reiterated its earlier denunciation of the Philippines’ “illegal occupation” of some islands in the South China Sea, referred to in the Philippines as “West Philippine Sea.”

Sources with contacts in Beijing said China’s Foreign Ministry was “stunned” that the Philippines pushed through what they have been talking about for almost two years now.

China is most concerned of its international respectability. This suit, the first against China at the UN, does not augur well for a new leadership that would come in next month.

China has been consistent in its position not to “internationalize” the issue of conflicting territorial claims in the South China Sea and over Bajo de Masinloc (Huangyan Island to the Chinese) and to deal with  the issue bilaterally.

The Philippines defied China, the emerging world superpower, last Tuesday and decided to ask the United Nations Arbitral Tribunal to declare the nine-dash line map illegal.

China submitted on May 7, 2009 before the UN Commission on the Law of the Sea the “nine-dash line” map, so called because instead of coordinates, it shows a series of nine dashes or dotted lines forming a ring around the South China Sea area, which China claims is part of its territory.

The “nine-dash line map” puts 90 percent of the whole South China Sea under Chinese jurisdiction including  Bajo de Masinloc, 124 nautical miles away from Zambales and clearly within the Philippines 200 NM exclusive economic zone (it’s 467 nautical miles from mainland China) and Spratlys group of islands which are also claimed wholly and partly by the Philippines, Vietnam, Malaysia, Brunei and Taiwan.

The DFA said it is not the International Tribunal on the Law of the Sea or ITLOS that the Philippine lodged its suit. It is before the Arbitral Tribunal under Article 287 and Annex VII of the United Nations Convention on the Law of the Sea or UNCLOS under which it does not need China to agree to the arbitration.

The process has started with the handing by the DFA last Tuesday to Ambassador Ma Keqing of the note verbale on the UN suit and a copy of the 19-page Notification and Statement of Claim.

Sources close to Malacañang and the DFA said the tipping point for the Philippines was the declaration by Chinese Foreign Vice Minister Fu Ying later last year that they have no intention of withdrawing their three remaining ships in Bajo de Masinloc which is tantamount to their occupation of a Philippine territory.

In the Philippine Notification and Statement of Claim, it used the word “seize” in describing the Bajo de Masinloc incident:

Paragraph 20 states: “In 2012, China seized six small rocks that protrude above sea level within the Philippines’ exclusive economic zone, unlawfully claimed an exaggerated maritime zone around these features, and wrongfully prevented the Philippines from navigating, or enjoying access to the living resources within this zone, even though it forms part of the Philippines’ EEZ.

“These half dozen protrusions, which are known collectively as Scarborough Shoal (Bajo de Masinloc in the Philippines; Huang Yan Dao in China) are located approximately 120 M west of the the Philippine island of Luzon……”

Paragraph 21 states, “Until April 2012, Philippine fishing vessels routinely fished in this area, which is within the Philippines’ 200-mile   exclusive economic zone. Since then, China has prevented the Philippines from fishing at Scarborough Shoal or in its vicinity, and undertaken other activities inconsistent with the Convention. Only Chinese vessels are now allowed to fish in these waters, and have harvested, inter alia, endangered species such as sea turtles, sharks and giant clams which are protected by both international and Philippine law.”

China gave the Philippines’ no choice.

Ellen Tordesillas