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Manuel J. Laserna Jr., Laserna Cueva-Mercader Law Offices, Las Pinas City, Philippines.

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Tuesday, September 3, 2013

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On Dutertes foreign
affairs chief Yasay:
I cant...
Philippine Laws and Cases "The Philippine justice
- Manuel J. Laserna Jr. system is so
Las Pinas City, Metro Manila, notoriously i...
Philippines
"It is the responsibility
MANUEL J. LASERNA JR.- of Congress...[to]
Email: lcmlaw@gmail.com. ensur...
Tel/Fax. . +63 2 8462539. Duterte will appoint 12
Text/call +63 921 6276552 (staff Supreme Court
Primo Cueva). See Google Maps justices dur...
for directions - Laserna Cueva-
The Senate on
Mercader Law Offices.
Monday approved
PROFILE: Partner, Laserna on third and final
Cueva-Mercader Law Offices. r...
Admitted to the Bar in 1985 (3rd
placer, 1984 bar exam). Law The Ombudsman
accused Abad of
professor of FEU, Manila, 1985
violating Article
to 2006 (ret.). Educ.: AB Journ., 23...
UP, Diliman, QC, 1975; Bachelor
of Laws (LL.B.), cum laude, FEU, The tide of
international
1984; Master of Laws (LL.M.),
criticism of the
UST, (cand.), Manila [as FEU governm...
fellow, 1998-2000]. Honors: 3rd
placer, 1984 Bar Exams PHILSAT | Law school
(90.95%; only 22% passed); admission test
slated April 1...
Meralco pre-law scholar;
Cocofed law scholar; Cocofed JBC opens
management scholar (AIM, application for SC,
Makati); FEU fellow (LLM, UST). Ombudsman posts
Bar leader in southern Metro | Su...
Manila area since 1995. National Geographic
Founded Las Pinas City Bar Airs Film on
Assn (2001). Served as Rodrigo Duterte's...
director/sec./vice pres., IBP
When dictators and
PPLM Ch., 1995-2007. tyrants seek to
View my complete profile destroy the fr...

Duterte's first

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Qualified theft defined; proper Winning the drug war

penalty explained through social

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Philippine Laws and Cases.: Search results for china
Item No "x x x. The elements of
the crime of theft as provided for
in Article 308 9 of the Revised
Penal Code are as follows: (1)
t...
Oral defamation, slander - G.R.
No. 160351
See - G.R. No. 160351 "x x x.
The issues are: (1) whether the
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Estafa (deceit/swindling) under
Art. 315, Rev. Penal Code
For legal research purposes of
my readers, may I share the
jurisprudential part of a motion
for reconsideration I have just
filed with the...
Estafa; sample counter-affidavit
Below is a sample counter-
affidavit prepared by Atty.
Manuel J. LAserna Jr. involving
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CRIMINAL NEGLIGENCE OF
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I wish to share a criminal
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Followers
2 of 21
http://attylaserna.blogspot.com/search?q=china
The 1982 United Nations Convention on the Law of the Sea, or UNCLOS, justice. - Arc...
which entered into force in 1994, governs the conflicting maritime claims in the 2016 Country Reports
South China Sea. All the claimant states in the South China Sea dispute, on Human Rights
including the Philippines and China, have ratified UNCLOS. UNCLOS is the Practices - P...
Constitution for the worlds oceans and seas. UNCLOS codified the then Duterte public attacks
existing customary international law of the sea, created novel entitlements in has chilling effect
on free...
favor of coastal and landlocked states, and adopted a compulsory dispute
settlement mechanism to insure that there is a final authoritative body to The Philippines
interpret and apply its provisions. effectively
domesticated the
Rome ...
UNCLOS has been ratified by 165 states, comprising an overwhelming
majority of the members of the United Nations. For this reason, even the novel EXPLAINER: Yes, Int'l
Criminal Court can
maritime entitlements under UNCLOS in favor of coastal and land-locked
prosecute...
states, which maritime entitlements have been consistently affirmed by
Noam Chomsky - On
international tribunals since 1994, now form part of customary international
Social Cleansing,
law. Even non-signatory states, as well as signatory states that later withdraw the 'war on dr...
from UNCLOS, are bound by these maritime entitlements.
Atienza to bring death
penalty issue to
UNCLOS governs only maritime entitlements, maritime space and maritime Supreme Co...
disputes. The maritime entitlements of states - the territorial sea, EEZ and
A bar topnotcher,
ECS and their resources emanate and are drawn only from baselines on
Pimentel misleads
continental land or islands. UNCLOS provides for a compulsory dispute the Filipino p...
settlement mechanism, subject to certain types of disputes that states are
United Nations drugs
allowed to exclude from compulsory arbitration. All states that ratified UNCLOS board slams killings
bound themselves in advance to this compulsory dispute settlement in Phili...
mechanism. The Philippines and China, having ratified UNCLOS, are bound
Duterte's war on
by this compulsory dispute settlement mechanism. drugs riddled with
corruption: Hu...
UNCLOS does not govern territorial sovereignty disputes over land or land
President Duterte is
features in the oceans and seas. Territorial sovereignty disputes over land or repeating my
land features - that is, islands, reefs and rocks above water at high tide - are mistakes
governed by the rules and principles of general international law. An
HRW: Philippines
international tribunal can acquire jurisdiction over territorial sovereignty police falsify
disputes only with the consent of the states that are parties to the particular evidence to justif...
dispute, in the absence of a treaty binding them in advance to the jurisdiction UN urges member
of such tribunal. There is no such treaty between the Philippines and China. states to end use of
death penalty...
In short, any maritime dispute between the Philippines and China is subject to Philippines moves
compulsory arbitration under UNCLOS, except for the disputes that China has forward death
excluded from compulsory arbitration in accordance with UNCLOS. In contrast, penalty legislatio...
the territorial sovereignty dispute between the Philippines and China over land Police Fake Evidence
and land features is not subject to compulsory arbitration. in Philippines' Drug
War Kill...
This psychopathic
fascist shames the
What is the right or entitlement of the Philippines under international law
Republic of t...
that is being violated by China?
Police Fake Evidence
Under UNCLOS, every coastal state is entitled as a matter of international law in Philippines' Drug
War Kill...
to a 200-nm EEZ, plus an additional 150-nm ECS where applicable, drawn
from baselines on continental land or islands. In lieu of this additional 150-nm 7 Cause Why The
ECS, a coastal state may adopt an ECS of up to 100-nm seaward from the President of The
Philippines Calle...
2,500 meter isobath. This legal maritime entitlement is one of the most
important reasons why developing coastal states approved UNCLOS. Without I-Witness: Sa Ngalan
ng Karapatan,
this important legal maritime entitlement there might have been no UNCLOS.
dokumentaryo ...
In case of overlapping EEZs or ECSs, the opposing or adjacent coastal states
shall negotiate in good faith an equitable maritime boundary. I-Witness: Tiis Piitan,
dokumentaryo ni
Jay Taru...
Also, land-locked states joined UNCLOS for two reasons: first, the area of the
sea beyond the EEZ of a coastal state, called the highseas, is open to fishing "Dorm 12",
dokumentaryo ni
for all states, whether coastal or land-locked; and second, the seabed and its Kara David
minerals beyond the ECS of a coastal state is declared the common heritage
'Justice on wheels' in
of mankind - belonging to all states, whether coastal or land-locked.
the Philippines
Chinas 9-dashed line claim negates, and thus violates, the Philippines legal The Philippines'
private armies
entitlement under UNCLOS to an EEZ and ECS. Chinas 9-dashed line claim
also negates, and thus violates, the right of all states on this planet, including A President's Report
thePhilippines, to fish in the high seas or the area beyond the EEZ of a coastal Card - Rodrigo
Duterte
state. Chinas 9-dashed line claim furthermore negates, and thus violates, the
right of all states on this planet, including the Philippines, to the seabed and its Assignment Asia -
13/03/2017 1:38 PM
Philippine Laws and Cases.: Search results for china http://attylaserna.blogspot.com/search?q=china

mineral resources beyond the ECS of a coastal state. Finally, Chinas claim of Operation: Drug
Mga sumusubaybay (172)
War
Susunod indisputable sovereignty to areas of the South China Sea beyond the EEZs
of coastal states violates the prohibition under UNCLOS against states Project Duterte. Law
subjecting the high seas to their sovereignty. enforcement or
mass terror? T...

The Philippines' Drug

What is the basis of Chinas 9-dashed line claim? Problem: Hitmen,
Dealers And...

China anchors its 9-dashed line claim on so-called historical rights. However, How should Trump
respond if Duterte
China admits that its 9-dashed line claim was first included in an official
kicks US troop...
Chinese map only in 1947 during the Kuomintang Government. In 1998, China
enacted its Exclusive Economic Zone and Continental Shelf Law to affirm its How To Stop China In
The South China
sovereign rights and jurisdiction over its EEZ and ECS under UNCLOS. A
Sea
provision in this 1998 law states, this Act shall not affect the historical rights of
the Peoples Republic of China. This 1998 law is the first official reference in a David Boaz: Time to
Sundin
End the War on
Chinese law to Chinas historical rights to maritime areas outside its EEZ and Drugs
ECS. However, the rights of a state under international law cannot be enlarged
Lascaas pens tell-all
by its domestic legislation, but only by customary international law or by a
journal: Duterte
convention like UNCLOS. rule a Di...

The law on
Chinas 9-dashed line claim was originally represented by 11 dashes in the
obstruction of
1947 Chinese map, then reduced unilaterally in 1950 to 9 dashes without justice will
explanation after the Communists ousted the Kuomintang from the mainland. someday be ...
In January this year China released a new official map adding a 10th dash on Did Yasay lie about
the eastern side of Taiwan. Chinas claim was ambiguous from the start as U.S. citizenship?
China failed to explain its scope until January this year. Moreover, until now
The "burden of
China has never revealed the exact coordinates of its 9 or 10-dashed line evidence" is now
claim, and neither has China explained the basis under international law for its upon Yasay's
claim. shoul...

Duterte's old and

China formally announced to the international community its claim only in 2009 unbelievable
when it submitted to the United Nations a map depicting its 9-dashed line defense tactics:
ge...
claim. This map, showing no coordinates of the 9 dashes, was appended to a
note verbale China lodged to protest Vietnam and Malaysias joint submission Duterte's VACC
of their ECSs. With this map, China claimed indisputable sovereignty over "Everybody has a
the islands and adjacent waters within the enclosed area, as well as right to a fair trial,
sovereign right and jurisdiction over the relevant waters, seabed and subsoil everybody ...
within the enclosed area. China did not explain the meaning of the words
February (80)
adjacent waters and relevant waters, which are not used in UNCLOS.
China thus failed to clarify the ambiguity of its 9-dashed line claim. Chinas January (86)
submission of its 9-dashed line claim to the United Nations was, of course,
promptly protested by other claimant states. 2016 (712)

2015 (778)
China has always been ambiguous about the scope of its 9-dashed line claim
2014 (339)
whether it is claiming only the islands within the 9-dashed line area, or
whether it is also claiming all the waters and resources within the 9-dashed 2013 (468)
line area beyond the applicable maritime zones. Even Chinese scholars on the 2012 (670)
law of the sea are divided as to whether the 9-dashed line claim includes all
2011 (489)
the waters within the area, comprising almost 90% of the South China Sea.
Chinas incumbent judge in the International Tribunal for the Law of the Sea, 2010 (285)
Zhiguo Gao, wrote in 1994 that the 9 dashes merely identify the islands owned
2009 (235)
by China within the enclosed area and do not represent a claim to all the
waters and resources within the enclosed area. 2008 (182)

2007 (114)
In January this year China appears to have clarified at least the scope of its
claim by issuing a new official map describing 10 dashes on the map as its
national boundaries. By using the term national boundaries, China is Total Pageviews
apparently claiming everything within these boundaries as part of its national
territory. If so, China has clarified only this year that it is claiming all the waters, 5,078,238
islands, reefs, rocks, living and non-living resources, the seabed and the
minerals found within the previous 9, now 10-dashed line area. This is
consistent with the aggressive actions of Chinese surveillance ships in
harassing survey vessels of Vietnam and the Philippines exploring for oil and
gas in their own EEZs that overlap the waters enclosed by the 9-dashed lines,
even if the waters are outside the maritime zones of any disputed island and
outside the EEZ or ECS of China.

Still, China has not explained the basis under international law of its historical
rights to the 9-dashed line claim. China has not released an official paper or

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document explaining such historical rights, and the justification for such
historical rights under international law. China has refused to defend its
9-dashed line claim before an international tribunal on the law of the sea.
However, on its face alone the 9-dashed line claim has absolutely no basis
under international law.

First, UNCLOS extinguished all historical rights of other states within the
200-nm EEZ of the adjacent coastal state. That is why this 200-nm zone is
called exclusive no state other than the adjacent coastal state can exploit
economically its resources. Fishing rights that other states historically enjoyed
within the EEZ of the adjacent coastal state automatically terminated upon the
effectivity of UNCLOS. Moreover, UNCLOS prohibits states from making any
reservation or exception to UNCLOS unless expressly allowed by UNCLOS.
Any reservation of claims to historical rights over the EEZ or ECS of another
coastal state is prohibited because UNCLOS does not expressly allow a state
to claim historical rights to the EEZ or ECS of another state. In short,
UNCLOS does not recognize historical rights as basis for claiming the EEZs
or ECSs of other states.

The few cases where the waters beyond the territorialsea were still treated as
internal waters because of historical rights all happened before the advent of
UNCLOS, when the breadth of the territorial sea was still three miles. These
cases involved deeply indented bays, like the Chesapeake Bay bordering
Maryland and Virginia in the United States, or deeply indented gulfs like the
Gulf of Fonseca in Central America bordering Honduras, Nicaragua, and El
Salvador. These bays and gulfs are adjacent to the coast and have long been
accepted by other states as internal waters. With UNCLOS, the territorial sea
has been extended to 12-nm, and a 200-nm EEZ has been granted to coastal
states, removing the need for a coastal state to invoke historical rights to
exclude other states from its deeply indented bays or gulfs. In none of these
few cases has historical rights been invoked to claim a non-adjacent area
beyond 200-nm from the coast, or to claim an entire or nearly entire sea
bordering several states.

Second, under UNCLOS the term historic bays refers to internal waters, and
the term historic titles refers to territorialseas. A state can claim historical
rights over waters only as part of its internal waters or territorial sea. There is
no freedom of navigation and no freedom of over-flight in internal waters or
territorial sea. There is a right of innocent passage for ships in the internal
waters and territorial sea.

The South China Sea, beyond the 12-nm territorial sea of coastal states, has
never been considered as the internal waters or territorial sea of any state.
Since time immemorial, ships of all nations have exercised freedom of
navigation in the South ChinaSea. Likewise, since the time airplanes flew
across the seas, aircraft of all nations have exercised freedom of over-flight
over the South China Sea. If the South China were the internal waters or
territorial sea of China, then no state could have exercised freedom of
navigation and freedom of over-flight over the South China Sea. Indeed, China
has stated that there is freedom of navigation and freedom of over-flight in the
South China Sea, an admission that the South China Sea does not constitute
its internal waters or territorial sea.

Chinas 1992 Law on Territorial Sea and Contiguous Zone declares a 12-nm
territorial sea measured from its baselines. Since Chinas own law limits its
territorial sea to 12-nm from its baselines, China cannot claim the waters within
the 9-dashed line map as its territorial sea. The waters within the 9-dashed line
claim cannot also be considered internal waters of any state because they are
in the open sea bordering seven coastal states. The South China Sea falls
under the UNCLOS definition of a semi-enclosed sea because it consists
entirely or primarily of the territorial seas and EEZs of two or more States.

Since the time that Grotius idea of the free sea became part of international
law, no nation could appropriate or claim indisputable sovereignty to any part
of the oceans and seasbeyond its territorial sea or beyond what other states
recognize as its internal waters. This is reflected in UNCLOS, which only
grants a coastal state specified sovereign rights and jurisdiction over its EEZ
and ECS, and expressly prohibits any coastal state from subjecting the high
seas to its sovereignty.

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Thus, the waters enclosed by Chinas 9-dashed line claim are neither internal
waters nor territorial sea of China. The waters cannot also form part of Chinas
EEZ or ECS because they are not drawn from Chinas baselines and are
beyond the limits of Chinas EEZ and ECS as drawn from Chinas baselines. In
short, Chinas claim to the waters enclosed by the 9-dashed line claim does
not fall under any of the maritime zones recognized by international law or
UNCLOS namely, internal waters, territorialsea, EEZ, and ECS - that could
be claimed by a coastal state. Only China seems to know under what maritime
zone the 9-dashed line waters fall, but China is not telling the world except to
claim indisputable sovereignty over such waters by historical rights.

Third, under the general principles and rules of international law, a claim of
historical rights to internal waters or territorial sea must satisfy four
conditions. One, the state must formally announce to the international
community such claim to internal waters or territorial sea, clearly specifying the
nature and scope of such claim. Two, the state must exercise effective
authority, that is, sovereignty, over the waters it claims as its own internal
waters or territorial sea. Three, such exercise of effective authority must be
continuous over a substantial period of time. Four, other states must
recognize, tolerate or acquiesce in to the exercise of such authority.

China fails to comply with any of these four conditions. China officially notified
the world of its 9-dashed line claim only in 2009. Not a single country in the
world recognizes, respects, tolerates or acquiesces in to Chinas 9-dashed line
claim. China has never effectively enforced its 9-dashed line claim from 1947
to 1994 when UNCLOS took effect, and even after 1994 up to the present.
Thus, under the general principles and rules of international law, China cannot
claim historical rights that pre-dated UNCLOS. Even assuming, for the sake
of argument, that China has such historical rights, the entry into force of
UNCLOS in 1994 extinguished such rights. Under UNCLOS, a state cannot
claim any historical right to the EEZ or ECS of another state.

In the 2002 Asean-China Declaration on the Conduct of Parties in the South

China Sea, China agreed that all claimant states shall resolve their disputes in
accordance with universally recognized principles of international law,
including the 1982 UN Convention on the Law of the Sea. China did not state
that historical rights, or any other circumstance, should be a factor in
resolving the disputes. China thus agreed that only international law, in
particular UNCLOS, should govern the resolution of the disputes in the South
China Sea.

Clearly, there is nothing historical or right about Chinas 9-dashed line claim
because it is fairly recent, without fixed coordinates, ambiguous even to its
own legal scholars, inconsistent with its own national law, contrary to the
general principles and rules of international law, contrary to UNCLOS, contrary
to the Asean-China DOC, and still evolving as recently as this year. Not a
single state in the world recognizes, tolerates or acquiesces in to Chinas
9-dashed line claim. By asserting their own claims to parts of the waters
enclosed by Chinas 9-dashed line claim, the other claimant states actually
oppose and contest Chinas 9-dashed line claim.

What is Chinas offer to jointly develop the disputed areas?

China has been dangling to the Philippines and other claimant states its offer
to jointly develop the disputed areas while shelving the sovereignty issues.
This joint development offer originated from Deng Xiaopings three-part
guideline: sovereignty belongs to China, shelve the disputes, and pursue joint
development. There are at least three problems to this offer.

First, China wants to jointly develop the EEZ of the Philippines but refuses to
jointly develop Chinas own EEZ. In effect, China is saying to the Philippines,
what is exclusively your economic zone belongs to both of us, but what is
exclusively our economic zone is ours alone, and if you do not agree, our
warships will be there to prevent you from developing your exclusive economic
zone.

Second, as explained by Chinese officials and scholars, Chinas offer of joint

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development is subject to the precondition that participating coastal states

must first expressly recognize Chinas indisputable sovereignty under its
9-dashed line claim. This precondition effectively means that once a state
agrees to joint development, it must not only vacate any island it possesses in
the Spratlys and turn over the same to China, it must also renounce any
maritime claim within the 9-dashed line area. This precondition demanded by
China is obviously inconsistent with its offer to shelve the sovereignty issue.

Third, if the Philippines agrees to Chinas joint development offer, the

Philippines will in effect give up its exclusive sovereign right and jurisdiction
to exploit all the living and non-living resources in its own EEZ. The Philippines
will also give up its exclusive right to exploit the mineral resources in its own
ECS. The bottom line is that Chinas joint development offer will negate the
maritime entitlements of the Philippines under UNCLOS. This is
constitutionally impermissible because our 1987 Constitution mandates, The
State shall protect the nations marine wealth in its archipelagic waters,
territorial sea and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.

Naturally, not a single claimant state has agreed to Chinas joint development
offer. Chinas response to the negative reaction of other claimant states to its
joint development offer is to harass the ships of other claimant states exploring
for oil and gas within their own EEZs. In May 2011, Vietnam protested that
Chinese surveillance vessels cut off the cables of a Vietnamese ship surveying
within Vietnams own EEZ. In December 2012, the Vietnamese again
protested another cable-cutting act committed by two Chinese vessels on a
Vietnamese ship surveying within Vietnams EEZ. In March 2011, the
Philippines also protested that Chinese surveillance vessels menacingly
circled a Philippine-commissioned ship surveying in the Reed Bank, which is
within the Philippines EEZ.

These harassment tactics by the Chinese have prevented Vietnam and the
Philippines from exploiting the resources within their own EEZs, an exclusive
right guaranteed to them under UNCLOS. These harassment tactics only
confirm that in practice China is claiming all the waters and resources within its
9-dashed line map, even if the waters and resources fall within the EEZ of
other coastal states that have no overlapping EEZs with China.

The only joint development that is feasible in the Spratlys is for all claimant
states to respect each others EEZs as guaranteed by UNCLOS, and to jointly
develop the disputed areas beyond these EEZs. In the absence of overlapping
EEZs in the Spratlys, the EEZ of a coastal state can never be a disputed area
because UNCLOS, to which all claimant states in the Spratlys are parties,
guarantees such EEZ to every coastal state. Beyond the EEZs, the extended
continental shelves of claimant states in the Spratlys overlap and can be
considered disputed areas, and thus open to joint development. This kind of
joint development, with no preconditions, is friendly, fair, practical and durable
because it is in accordance with UNCLOS. There is no bullying in this kind of
joint development, and no state illegally appropriates the EEZ of another state.

Why did the Philippines file an arbitration case against China?

Following the tense standoff in April and May 2012 between Chinese and
Philippines vessels in Scarborough Shoal, the Philippines withdrew in June
2012 its vessels from Scarborough Shoal on the understanding of a mutual
withdrawal of vessels by both China and the Philippines. The Chinese,
however, reneged on their commitment and refused to withdraw their vessels.
Then in November 2012, China informed the Philippinesthat the Chinese
surveillance vessels would remain permanently stationed in Scarborough
Shoal. China was now in permanent occupation of Scarborough Shoal.

Scarborough Shoal is a submerged reef except for six small rocks that
protrude not more than three meters above water at high tide. The width of the
largest rock above water at high tide is only a few meters. The Philippines built
a lighthouse on one of the rocks in 1965, and another lighthouse in 1991. From
the 1960s to the 1980s Scarborough Shoal was a bombing range of American
andPhilippine Air force planes practicing bombing runs. Prior to such practice
bombings, American and Philippine authorities would give worldwide notices to

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mariners to avoid Scarborough Shoal. No protest was ever heard from China.

Scarborough Shoal appeared in the first map of the Philippinesissued under

the American regime in 1899. Earlier during the Spanish regime, Scarborough
Shoal, at that time called Panacot, appeared in several Spanish maps of the
Philippines starting at least in the 1734 Murillo map. While Scarborough Shoal
was outside the lines drawn in the 1898 Treaty of Paris, Spain and the United
States two years later entered into the 1900 Treaty of Washington clarifying
that islands to which Spain had title or claim of title were also ceded to the
United States even though outside the lines drawn in the Treaty of Paris. Thus,
Spain ceded Scarborough Shoal to the United States under the 1900 Treaty of
Washington. Under the 1935 Constitution, the territories ceded by Spain to the
United States under the Treaty of Paris and the Treaty of Washington form part
of the Philippine national territory. Under the 2009 amendment to the Philippine
Baselines Law, Scarborough Shoal is declared as a Regime of Islands for
purposes of determining its baselines.

The Philippines had five options in responding to the Chinese occupation of

Scarborough Shoal. First was to send naval vessels and marines to retake
Scarborough Shoal. This was not feasible because of the superior Chinese
naval forces. Second was to file a diplomatic protest with China. This was
useless because China would simply ignore the protest as it ignored the
protest of the Philippines after China seized Mischief Reef 17 years earlier in
1995. Third was to ask Asean to lobby China to withdraw from Scarborough
Shoal. This was not realistic because some Asean countries are hesitant to
offend China. Besides, Asean countries do not take sides on territorial
disputes. Fourth was to take the matter to the United Nations Security Council.
This was also futile since China has a veto power in the Security Council. The
fifth and only viable option was to bring the matter to an international tribunal
for arbitration, where the playing field would be level and military power would
not count, but only the rule of law would govern. Incidentally, the Philippines
could also not invoke the Phil-U.S. Mutual Defense Treaty since the U.S. has
made it clear that the islands, reefs and rocks in the South ChinaSea are
outside the scope of the treaty.

With Chinas occupation of Scarborough Shoal, the Philippine had no other

recourse but to go to an Annex VII arbitral tribunal under UNCLOS. It was the
only sensible and effective response that the Philippines could offer.
Otherwise, nothing would stop China from occupying another rock, reef, or
shoal within its 9-dashed line claim even if within the EEZ of the Philippines.

The Chinese occupation of Scarborough Shoal is an invasion of Philippine

territory, giving rise to a territorial sovereignty dispute. However, the Philippines
could not bring China to compulsory arbitration on a territorial sovereignty
dispute without Chinas consent. That is why the Philippines decided to do the
next best thing - bring China to compulsory arbitration on the maritime aspect
of Chinas 9-dashed line claim. If Chinas 9-dashed line claim is invalidated,
then China will lose its excessive claim to the waters of the South China Sea.
More significantly, Chinas basis for claiming territorial sovereignty over the
islands within its 9-dashed line claim will weaken considerably since the
9-dashed line claim is central to Chinas historical claim to territorial
sovereignty over the islands within the enclosed area.

Is Chinas consent required for the compulsory arbitration?

When a state ratifies UNCLOS, the state consents in advance to be bound by

the compulsory dispute settlement mechanism under UNCLOS on any
dispute concerning the interpretation or application of the provisions of
UNCLOS. However, a state is allowed to opt out of compulsory arbitration for
certain matters, like disputes on maritime boundary delimitation. In 1996, ten
years after ratifying UNCLOS, China opted out of compulsory arbitration for
certain types of disputes, including any dispute on maritime boundary
delimitation. A state remains bound to compulsory arbitration with respect to
the interpretation or application of UNCLOS on disputes that the state has not
excluded, or cannot exclude, from compulsory arbitration.

Thus, when an actual dispute arises involving the interpretation or application

of UNCLOS, a signatory state is already deemed to have given its consent to

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compulsory arbitration, unless the dispute is one that is properly excluded from
compulsory arbitration under UNCLOS.

The Philippines arbitration case against China involves the interpretation or

application of UNCLOS on three main issues. The first issue is whether
Chinas 9-dashed line claim can negate the grant under UNCLOS of an EEZ to
the Philippines. This issue does not involve any maritime boundary delimitation
because there are no overlapping EEZs between China and the Philippines,
certainly not in the island of Luzon facing the West Philippine Sea.
Scarborough Shoal, whatever state may have sovereignty over it, does not
generate an EEZ because only small rocks are found there. Admittedly, those
rocks are not islands capable of sustaining human habitation or economic life
of their own, which is the condition for an island to have an EEZ.

In the Spratlys there is no island capable of sustaining human habitation or

economic life of its own. This is the position of the Philippines, Vietnam,
Malaysia and Brunei. Thus, there are also no overlapping EEZs between the
Philippines and other claimant states in the Spratlys. However, since China
claims that islands in the Spratlys generate EEZs, the second issue is whether
an island in the Spratlys actually generates an EEZ. The resolution of this
issue does not involve any maritime boundary delimitation. This issue is an
inquiry into whether an island in the Spratlys satisfies the UNCLOS
requirement of being able to sustain human habitation or economic life of [its]
own. If none of the islands satisfies this requirement, then there are no
overlapping EEZs in the Spratlys and hence no maritime boundary delimitation
is involved. If an island satisfies this requirement, and thus generates an EEZ,
then the tribunal will so declare but will proceed no further without the consent
of China because the issue will then involve overlapping EEZs requiring
maritime boundary delimitation for its resolution.

In the event that the arbitral tribunal rules that an island in the Spratlys
generates an EEZ, the Philippines can bring China to compulsory conciliation
under an UNCLOS conciliation commission. Under UNCLOS, a state that opts
out of compulsory arbitration involving maritime boundary delimitation shall
nevertheless submit to compulsory conciliation. The conciliation commission
will adjust the median line of the overlapping EEZs, taking into account
Palawans more than 600-nm coastline as against the less than 1-nm coastline
of the biggest island in the Spratlys. Under prevailing law of the sea
jurisprudence, such huge disproportion in the opposing coastlines will entitle
the island in the Spratlys to an EEZ either only seaward away from Palawan,
or to a proportionally minuscule EEZ facing Palawan, if at all. Although the
report of the conciliation commission is not binding on China, China is
obligated under UNCLOS to negotiate in good faith with the Philippines based
on the report of the conciliation commission.

The third issue is whether China can appropriate and construct artificial islands
on low-tide elevations (LTEs) within the Philippines EEZ, like the massive
structure China built on Mischief Reef, which China officially describes as a
shelter for Chinese fishermen. LTEs are rocks above water at low tide but
under water at high tide. LTEs beyond the territorial sea of a coastal state do
not generate any maritime zone, not even a territorial sea. LTEs beyond the
territorial sea are not subject to appropriation and to claims of territorial
sovereignty because they are not land but part of the maritime zone. Under
UNCLOS, only the adjacent coastal state can build artificial islands within its
EEZ.

A corollary issue raised by the Philippines is whether China can subject the
high seas in the South China Sea to its sovereignty. The high seas refer to the
area beyond the EEZs of coastal states. Chinas 9-dashed line claim subjects
the high seas in the South China Sea to Chinas indisputable sovereignty.
UNCLOS expressly provides that no state shall subject the high seas to its
sovereignty. This UNCLOS provision is a codification of centuries old
customary international law.

Under UNCLOS, the refusal of a party to participate in a dispute settlement

proceedings, where such participation is compulsory, shall not constitute a bar
to the proceedings and the tribunal can still decide the case on the merits.

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How long will it take for the arbitral tribunal to decide the case?

The 5-man Annex VII arbitral tribunal met for the first time last July 11, 2013
and designated The Hague as seat of the arbitration and the Permanent Court
of Arbitration as the Registry of the proceedings. Although China has refused
to participate in the proceedings, it is still being notified, and requested to
comment, at every stage of the proceedings. Last Tuesday, August 27, 2013,
the Tribunal issued an Order approving its Rules of Procedure and directing
the Philippines to submit its Memorial not later than March 30, 2014. The
Order states that the Memorial shall fully address all issues, including matters
relating to the jurisdiction of the Arbitral Tribunal, the admissibility of the
Philippines claim, as well as the merits of the dispute. The Order further
states, The Arbitral Tribunal will determine the further course of the
proceedings, including the need for and scheduling of any other written
submissions and hearings, at an appropriate later stage, after seeking the
views of the Parties. Based on the Tribunals Order requiring all issues to be
addressed in the Memorial of the Philippines, it is possible that the Tribunal
may decide the jurisdictional issue together with merits of the dispute.
Arbitrations under Annex VII may take two to three years before a decision is
reached.

What are the ramifications of this case on international law?

Chinas 9-dashed line claim simply cannot co-exist with UNCLOS. Upholding
one means killing the other. If Chinas 9-dashed line claim is upheld or allowed
to stand, UNCLOS will cease to be the law of the sea in the South China Sea.
China will appropriate for itself not only the EEZs and ECSs of other coastal
states but also the high seas and all the living and non-living resources found
there. This will be the beginning of the end for UNCLOS. Other naval powers
will likewise claim other oceans and seas, taking away the EEZs and ECSs of
weak or defenseless coastal states. The oceans and seas of the planet will be
governed by the rule of the naval canon.

Indeed, the maritime dispute between the Philippines and China is an acid test
to the very survival of UNCLOS - whether the Rule of Law will govern the
oceans and seas of our planet, or whether the rule of the naval cannon will
prevail, as it did in the time of Grotius. Legal scholars on the law of the sea all
over the world are keenly watching the outcome of the Philippines arbitration
case.

What are the ramifications of this case on the Philippines?

The Philippines has wisely chosen to bring its maritime dispute with China to a
forum where warships, fighter planes and missiles do not count, eliminating the
military advantage of China and insuring that the outcome of the dispute will be
decided only in accordance with the Rule of Law. It was a wise decision, but
one borne out of necessity because it was actually the only viable option open
to the Philippines.

We have to admit that as a nation we have neglected to maintain a credible

self-defense force, particularly in our naval assets despite our being an
archipelagic country with extensive coastlines and a vast EEZ. We are paying
dearly for this neglect, by losing Mischief Reef in 1995, Scarborough Shoal in
2012, and most likely Ayungin Shoal in the near future. To remain a sovereign
and independent nation, to maintain our territorial integrity, to avoid further
humiliation, and to maintain our self-respect as a nation, we must build and
maintain a credible self-defense force. There is simply no alternative to this.
No nation can remain sovereign, independent and free for long without
maintaining a credible self-defense force, even if international law and world
opinion are on its side.

As a nation we must also understand that the maritime and territorial dispute
with China in the West Philippine Sea is an inter-generational struggle to
maintain our sovereignty and territorial integrity. Our generation may win the
legal battle in the UNCLOS arbitration case, but for sure China will not simply
abandon its massive structure in Mischief Reef or withdraw its surveillance
vessels in Scarborough Shoal.

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After securing a favorable ruling from the arbitral tribunal, our generation must
still win over world opinion and convince the Chinese people that they will
become a rogue nation if their Government continues to violate international
law. The Chinese leaders may not survive politically if they simply abandon the
9-dashed line claim without the Chinese people being convinced that their
9-dashed line claim is against international law. The present generation of
Chinese have been taught from the time they entered school that the South
China Sea belongs to them. The next generation of Filipinos, and even the
generation after them, must continue to wage a worldwide campaign to
convince the Chinese people that the 9-dashed line claim has no basis in
international law.

UNCLOS does not provide for a world policeman or sheriff to execute

decisions of international arbitral tribunals. Member states of UNCLOS are
expected to voluntarily self-execute decisions of arbitral tribunals. For a losing
party, this will happen only if the Government of the day can survive politically
even if it complies with a decision against its own state. A Government will
survive politically if its people understand that the decision is mandated by
international law. The world must explain to the Chinese people that the
9-dashed line claim is contrary to international law. No nation can claim the
oceans and seas as its own. That is why it is necessary for the Philippines to
first secure a ruling from an international tribunal that the 9-dashed line claim is
contrary to international law.

The West Philippine Sea dispute can, and must be resolved, through the Rule
of Law because it is the only fair, just and durable solution to a situation where
the opposing states are vastly unequal in terms of military, economic and
political strength. Any resolution of the dispute outside of the Rule of Law will
only result in unequal treaties and plant the seeds of conflict for future
generations.

The Rule of Law in the West Philippine Sea dispute is UNCLOS. All the
claimant states to the dispute are parties to UNCLOS and are bound to comply
with their treaty obligations under UNCLOS in good faith. If the West Philippine
Sea dispute is settled in accordance with UNCLOS, then the world can be
assured that there will be a just, permanent and lasting peace in the West
Philippine Sea.

Posted by Philippine Laws and Cases - Manuel J. Laserna Jr. at 6:33 AM

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Wednesday, July 29, 2015

Chinas nine-dashed line has no

basis under international law | Asia
| DW.COM | 27.07.2015
See - Chinas nine-dashed line has no basis under international law | Asia |
DW.COM | 27.07.2015

"x x x.

T E R RITO RI AL DI S P UT E S

China's nine-dashed line has

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'no basis under international

law'
Manila is hoping for the Permanent Court of Arbitration to
declare invalid most of Beijing's South China Sea claims.
DW speaks to Supreme Court Justice Antonio Carpio about
the case and its likely implications.

China's territorial claims in the disputed South China Sea came

under international scrutiny earlier this month when the
Permanent Court of Arbitration in The Hague began hearing a suit
filed by the Philippines. Manila has asked the tribunal - which
operates under the United Nations Convention on the Law of the
Sea (UNCLOS) - to declare China's claims to virtually all the South
China Sea invalid, arguing that Beijing's actions have trampled on
other nations' rights and have caused considerable damage to the
environment.

The hearings started early July examining China's contention that

the tribunal doesn't have the authority to assume jurisdiction over
the Philippine case. Beijing, which for this reason has refused to
take part in the case, has called on Manila to withdraw the case and
engage instead in bilateral negotiations.

Maritime lawyers note the Chinese routinely outline the scope of

there claims with reference to the so-called nine-dashed line (main
picture) which takes in about 90 percent of the 3.5 million square
kilometers South China Sea on Chinese maps. Vietnam, Malaysia,
Brunei and Taiwan also challenge Chinese claims over most of the
resource-rich sea, but have yet to join the Philippine suit. The US
has expressed concern that China's efforts to build artificial islands
in the area carry a military dimension that could undermine the US'
naval and economic power in the Pacific.

In an interview with DW, Antonio T. Carpio, a Senior Associate

Justice of the Supreme Court of the Philippines, talks about why
the court is likely to rule in the Philippines' favor and why the
reputational cost to China would be immense should Beijing decide

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to ignore a
ruling
adverse to
China.

DW: What is
at the core of
the
Philippines'
Carpio: Almost all scholars of the law of the sea, except
case at The
those from China, agree that the nine-dashed line
Hague
egregiously violate UNCLOS
against
Beijing's South China Sea claims?

Antonio Carpio: The core of the Philippines' case is that China's

9-dashed lines, under which China claims 85.7 percent of the
waters of the South China Sea, are contrary to international law, in
particular to UNCLOS.

Put differently, can a coastal state like China claim maritime zones
from its coastlines beyond the 350 nautical miles (NM) maximum
limit (200 NM Exclusive Economic Zone (EEZ) and additional 150
NM extended continental shelf) allowed under UNCLOS? Such a
claim, whatever the reason may be, is clearly invalid under
UNCLOS, the constitution for the oceans and seas of our planet.
China and the Philippines are parties to UNCLOS.

What would the Philippines like the court to ultimately decide on?

The Philippines is asking the tribunal to declare China's

nine-dashed line void as a claim to maritime zones, and that the
waters enclosed by the lines cannot prevail over the EEZ and
extended continental shelf of the Philippines.

The Philippines is also asking the tribunal to declare that certain

geologic features are either rocks entitled only to a 12 NM territorial
sea or low-tide elevations entitled to no maritime zone whatsoever,
regardless of what state has sovereignty over these geologic
features.

China recently urged the Philippines to ditch its attempt to solve

South China Sea territorial disputes and instead negotiate with
Beijing directly. What do you make of Beijing's decision to refuse
the court's jurisdiction and not to take part in the proceedings?

China's refusal to participate in the arbitral proceedings simply

means that China knows it cannot justify its nine-dashed line claim
under UNCLOS.

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B E I JIN G 'S I S L AND -B U I L D IN G I N T HE S OUTH CHI N A S E A

Runway 'nearly complete'

China is expanding the construction of its facilities on Fiery Cross Reef.
Provided by the Asia Maritime Transparency Initiative (AMTI), this
June 28 picture reveals Beijing has nearly completed a 3,000 meter
(9,800-foot) airstrip, long enough to accommodate most Chinese
military aircraft. Two helipads, up to 10 satellite communications
antennas, and one possible radar tower are also visible.

1 2 3 4 5 6 7 8 9 10 11 12

Almost all scholars of the law of the sea, except those from China,
agree that the nine-dashed line egregiously violate UNCLOS. In this
day and age, it is incredible that a state is still claiming almost an
entire sea as its sovereign waters.

How confident are you that the court will rule in the Philippines'
favor?

If the tribunal will allow China's nine-dashed line to stand, then

that means UNCLOS does not apply to the South China Sea. If
UNCLOS does not apply to a vital sea like the South China Sea,
where one-half of the world's seaborne trade passes through, then
there will be grave doubt whether UNCLOS can resolve similar
disputes in other oceans and seas of our planet. It will be the
beginning of the end of UNCLOS.

What is likely to happen on the ground even if the Philippines were

to get a favorable decision from the international tribunal?

Beijing has already announced that it will ignore any ruling of the
tribunal that is adverse to China. The Philippines will be left with
no alternative but to bring China's defiance of international law to
the UN General Assembly and other international fora. In the end,
the reputational cost to China will be immense.

Like many other states that initially defied adverse rulings of

international tribunals, China will realize that the cost of
compliance with the ruling is far lesser than the cost of
non-compliance.

I expect that in the end, after many years, China will eventually
realize and accept that no state, whether coastal or landlocked, will
ever agree to China's claim of sovereignty or sovereign jurisdiction
to almost the entire South China Sea.

What do you make of the stance taken so far on the issue by other
ASEAN members and South China Sea claimants?

D W R E COM ME N D S Other ASEAN claimant states

A look at the US stance on
the South China Sea
dispute
Amid rising tensions in the South
China Sea, US Defense Secretary
Ashton Carter has said the US will
continue to play a "pivotal" role in
are situated differently from
the Philippines. Some of them
have strong trade relations
with China. At this time they
are not prepared to question
China's nine-dashed line
before an UNCLOS tribunal

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Asia. DW spoke to analyst Ernest even though large areas of their

Bower about Washington's role in
EEZs are also encroached by
the dispute. (02.06.2015)
the nine-dashed line.

A look at China's stance on However, China's massive

the South China Sea
dispute
Indonesia 'in a bind' over
Beijing's assertiveness in
South China Sea
Beijing's South China Sea
projects 'highly disruptive'
to local ecosystems
reclamations in the Spratlys,
and the construction of
Chinese naval and airbases in
the reclaimed areas close to
their coasts, have certainly
unnerved them. Only time will
tell whether they can maintain
their present stance.
Do you think ASEAN's stance
will/should change if the court
rules in the Philippines' favor?

I think if the tribunal rules that

it has jurisdiction to determine the validity of the nine-dashed lines,
other ASEAN claimant states will more openly and strongly
question the nine-dashed lines. If the tribunal rules on the merits
that China's nine-dashed line violates UNCLOS, then other ASEAN
claimant states may even file their own cases if China continues to
enforce the nine-dashed lines.

You are an international law expert and Senior Associate Justice.

What is your personal involvement in the case?

I am only doing my civic duty as a Filipino citizen to defend the

Philippines against China's encroachment of our country's
maritime zones - maritime space guaranteed under UNCLOS. I do
this by giving lectures, here and abroad, on the South China Sea
dispute. The world must know that China's nine-dashed line has no
basis whatsoever under international law.

Antonio T. Carpio is an incumbent Senior Associate Justice of the

Supreme Court of the Philippines.

D W R E COM ME N D S

Beijing's island-building in the South China Sea

Date 27.07.2015

Author Interview: Gabriel Domnguez

Related Subjects Philippines, International Criminal Court (ICC), Asia, People's Republic of China

x x x."

Posted by Philippine Laws and Cases - Manuel J. Laserna Jr. at 5:04 PM

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Monday, June 15, 2015

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PH v. China - and vice versa; word

war at the UN GA re: West PH
Sea/So. China Sea
claims/counterclaims
See - China to UN: PH 'totally wrong' on sea row

"x x x.

MANILA, Philippines A Chinese diplomat at the United

Nations (UN) lashed back at the Philippines' criticism of
its massive reclamation in the South China Sea, saying
Manila has a clear purpose to deceive the international
community.

China's deputy permanent representative to the UN Wang

Min took exception to statements from the Philippine
ambassador to the world body against Beijing's reclamation
work in disputed waters.

At a meeting at the UN Headquarters in New York on Friday,

June 12, Philippine Permanent Representative to the UN
Lourdes Yparraguirre said that China's artificial island-
building is a form of intimidation, coercion or force.

Wang responded by calling the Philippine statements

unwarranted accusations. He insisted that China will
continue with its reclamation work despite protests from that
country.

Let me make this very clear to that country here: its

calculations are totally wrong. China's will to safeguard her
sovereignty and territorial integrity is rock firm. No matter
what and how much they say at this meeting or any UN
venues, they will never get their way, Chinese state media
Xinhua quoted Wang as saying.

The Philippine Department of Foreign Affairs (DFA) said on

Sunday, June 14, that Yparraguirre took the annual meeting
of State Parties to the UN Convention on the Law of the Sea
(UNCLOS) as an opportunity to express Manila's concern
about China's increasingly aggressive rhetoric and action in
the South China Sea.

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The Philippine envoy said that China's massive, large-scale

land reclamation was a unilateral and aggressive action that
threatens UNCLOS, known as the constitution for the
oceans. The Philippines and China are both state parties to
UNCLOS.

In the past 18 months, China has been building artificial

islands in maritime features that the Philippines is contesting
under a historic arbitration case Manila filed under UNCLOS
before the Permanent Court of Arbitration in The Hague. A
hearing is set in July. (READ: What's at stake in our case vs
China)

Wang reiterated China's stance that its construction work is

legitimate.

"China's construction activities on her islands and reefs are

conducted in the Chinese territory, falling entirely within the
scope of China's sovereignty. It is legal, justified and
reasonable," he said.

Wang sought to address the concern of claimant countries

and the United States about reclamation by saying that it will
not undermine other countries' lawful right to the freedom of
navigation in the South China Sea but will facilitate their joint
response to challenges on the sea and provide more
guarantee for navigation safety.

China has maintained that its reclamation activities are for

both defense and humanitarian purposes like maritime
search and rescue, disaster prevention and relief, and
scientific research. Yet analysts call this a PR spin.
(READ: The China challenge in the West Philippine Sea)

Satellite images showed that China is constructing an

airstrip, port facilities, cement factories, barracks, and other
installations that will allow it to maintain de facto control of
the disputed sea. (WATCH: Rappler Talk: The Philippines
and China's 'Great Wall of Sand')

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'FORCING CHANGE.' Philippine Ambassador to the UN Lourdes Yparraguirre

criticizes China's reclamation work in the South China Sea at an UNCLOS
meeting in the UN Headquarters in New York. Photo courtesy: DFA

Arbitration 'erroneous'

The Philippine ambassador pointed out that China's

reclamation work is meant to change the status of the
maritime features ahead of the ruling of the tribunal expected
in early 2016.

There should be no pattern of forcing a change in the status

quo in order to advance a so-called nine-dash line claim of
undisputed sovereignty over nearly the entire South China
Sea, Yparraguirre said.

The Filipino envoy said that China accelerated large-scale

ocean filling in disputed features in the Spratly Islands
including Johnson Reef, McKennan Reef, Mischief Reef,
Cuarteron Reef, Gaven Reef, and Fiery Cross Reef. Fiery
Cross Reef alone expanded to 11 times its original area.

Yparraguirre defended the Philippines' decision to go to

arbitration, calling it a pacific and rules-based mode of
settling disputes. She said that bilateral negotiations with
China proved futile and one-sided because of lack of good
faith.

Yet Wang slammed her argument, insisting on China's

preference for country-to-country talks where the rising Asian
superpower can assert its economic and political influence.

"China urges that country to correct its erroneous actions

and return to the right track of resolving the disputes through
bilateral negotiations as soon as possible, Wang said.

The Philippines' maritime dispute with China escalated in

recent months after satellite images exposed the scale of
Beijing's construction work in the strategic sea. The

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Philippines' treaty ally, the United States also stepped in,

condemning reclamation and promising to continue naval
and air patrols near the artificial islands. (READ: 'China
miscalculated US response to reclamation')

Vietnam, Malaysia, Brunei, and Taiwan also have claims to

the South China Sea, believed to hold vast deposits of oil
and gas, a rich fishing site, and a major global shipping
route.

$280 million lost annually

Besides raising legal and geopolitical concerns, the

Philippines stressed that China's reclamation work is "an
environmental crisis."

[China] has had to dredge out and pulverize entire systems

of coral reefs that took many centuries to grow, reducing
them into landfill, and thus devastating the already fragile
marine ecosystem and biodiversity of the region by
irreparably destroying the habitat of depleted, threatened or
endangered species and other forms of marine life, said
Yparraguirre.

In another Philippine-organized forum at the UN on

Wednesday, June 10, marine science expert Dr. Edgardo
Gomez estimated that the 800 hectares of reclamation China
did amounted to an annual loss worth US $280 million in
ecosystem products and services.

These are losses to the Vietnamese, the Filipinos, the

Malaysians, the Indonesians, and to the Chinese
themselves, said Gomez, professor emeritus of the
University of the Philippines Marine Science Institute.

All countries that are contributing to the degradation and

destruction of the shallow water ecosystems must stop their
activities that are known to be detrimental to the productivity
and biodiversity of the waters of Southeast Asia, Gomez
added.

Gomez said that exploiting endangered species, overfishing

and destructive fishing in the South China Sea must stop.

The Philippines, Vietnam and Taiwan have also done

construction work in the features they control but not to the
extent that China has. Rappler.com.

x x x."

Posted by Philippine Laws and Cases - Manuel J. Laserna Jr. at 3:28 PM

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Monday, July 11, 2016

Does negotiating with China make

sense for the Philippines? - Policy
Forum
See - Does negotiating with China make sense for the Philippines? - Policy
Forum

"x x x.

The South China Seas upcoming judgement day is

going to be a tipping point for tensions and a watershed
for regional dynamics, writes Jacqueline Espenilla.

China has long claimed that the South China Sea dispute
can only be resolved by negotiation. This belief is purported
to be the rationale for its refusal to participate in the
arbitration case initiated by the Philippines under the
auspices of the United Nations Convention on the Law of the
Sea (UNCLOS). From Chinas perspective, the UN-backed
process in the Permanent Court of Arbitration amounts to
nothing more than Philippine legal sabre-rattling and
constitutes an abuse of the compulsory dispute settlement
procedures.

In its October 2015 award on jurisdiction and admissibility,

the tribunal found that the two countries never entered into a
legally binding agreement to settle their disputes via bilateral
negotiations, nor did they ever agree to exclude any other
dispute settlement procedure. The tribunal further
emphasised that Chinas repeated insistence on negotiating
indefinitely cannot dislodge the backstop of compulsory,
binding procedures provided by Part XV of UNCLOS,
especially since the Philippines never actually relinquished
this right during their years of dialogue with China.

Beyond legal speak, one practical More on this:

question should be considered: does

negotiating with China still make
sense at this point? Rodrigo Duterte,
the Philippines new President,
seems to think so. In a statement South China
made on July 5, he affirmed his Sea's
pre-presidency stance on re-opening judgement day |
bilateral discussions with China, Kerry Brown
saying that ultimately, he would

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proceed according to the greater interest of the country.

China has welcomed this seeming policy shift by immediately
having Chinese Foreign Ministry Spokesperson Hong Lei
reiterate Chinas desire to work in unison with the
Philippines.

The arbitral tribunals upcoming 12 July judgement will likely

be the tipping point for tensions and will certainly be a
watershed for regional dynamics. Assuming that bilateral
negotiations were to be revived in the aftermath, one cannot
help but wonder if there is anything left to discuss.

According to early reports, talks, if they happen, will likely

focus on joint development and cooperation in scientific
research. But what does that mean exactly? In the 1980s,
Deng Xiaoping advocated the idea of setting aside disputes
and pursuing joint development with other claimant
countries in relation to the Diaoyu/Senkaku Islands and the
Spratlys.

This concept, as explained by Chinas Ministry of Foreign

Affairs, contains four elements, the first and most essential
being that the sovereignty of the territories concerned
belongs to China. This immediately stands out as a worrying
indication of Chinas mindset going into any negotiations
involving the South China Sea. Nothing that the Chinese
government has said or done in the intervening years has
assuaged concerns that it will be an unreasonable
counterparty.

It is this intractability, coupled with the breath-taking

ambiguity of its nine-dashed-line territorial claims, that makes
it so difficult for South China Sea claimant countries like the
Philippines to sit down with China.

Moreover, Chinas actions speak louder than its words, and

the message being conveyed is crystal clear: it will not
compromise. There is thus a fundamental disconnect
between the underlying principle of negotiations finding a
mutually acceptable middle-ground between competing
positions that China purportedly supports, and its
increasingly assertive posture in the South China Sea, which
of late has begun to approximate the behaviour of a typical
neighbourhood bully.

The most notorious and visible of Chinas assertions is its

massive island-building program on a number of disputed
features in the South China Sea, an effort widely perceived
to be an attempt to change the status quo ahead of the
tribunal ruling. China has also adopted a defensive-offensive
posture that involves everything from ratcheting up the
presence of ships, aircraft and even nuclear-armed
submarines in the disputed area, to threatening the
establishment of an Air Defense Identification Zone over the

20 of 21 13/03/2017 1:38 PM
Philippine Laws and Cases.: Search results for china http://attylaserna.blogspot.com/search?q=china

South China Sea. Its conduct of military drills no doubt a

strategic show of strength in the days leading up to the
arbitral ruling likewise emphasises the absoluteness of its
position.

More on this: But the stark reality is that the 12 July

judgement, though widely predicted
to be favourable for the Philippines,
will likely just be a paper victory given
the limited scope of the issues under
Winners and consideration and Chinas defiant
losers from the attitude to a rules-based order at sea.
South China This means that, notwithstanding
Sea judgement | Chinas intransigence, the Philippines
Malcolm Cook has little choice but to reach for
low-hanging fruit in terms of avenues
for re-building trust and confidence,
and ultimately, find ways to reach a mutually acceptable
agreement in accordance with UNCLOS and other relevant
legal instruments.

So does negotiating with China make sense? Yes, in a

manner of speaking, and only if the Philippines manages to
leverage the outcome of the arbitration case in future talks
with China. In any case, the Philippines should still proceed
to sit at the table with an abundance of caution and an
undiminished awareness of its rights and entitlements under
international law.

x x x ."

Posted by Philippine Laws and Cases - Manuel J. Laserna Jr. at 4:33 PM

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