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Panatag Shoal

China’s retaliation?

Former Secretary Raffy Alunan warned on ANC this week that China will retaliate in response to our filing of our Memorial in our  pending arbitration against China under the UN Convention on the Law of the Sea (UNCLOS). Citing the earlier move of China in banning the entry of our bananas into their territory, Alunan warned that China’ s retaliation could be in the form of further economic sanctions and worse, even sabotage. Referring to the possibility of the latter, Alunan warned that the Chinese could resort to sabotage of our power grid, since the National Power Grid Corporation is 40% owned by a Chinese company. He also warned about possible cyber attacks against our networks.  A pro-China advocate has dismissed Alunan’s warnings as unlikely. I prefer not to dismiss the warnings as in fact; history has shown that nothing is impossible in the field of international relations. Who would have thought that the United States would persist in its illegal occupation of Iraq? Neither did we expect that Russia would be so brazen as to annex Crimea?   Simply put, we have to prepare for China’s retaliations, whatever form it may take.

Alunan was actually warning about two things: one, China’s unwavering claim to the nine-dash lines; which will persist whether or not we continue with our arbitration. Second, the fact that China has not been shy in telling the world that it takes offense to the fact that it was sued before an international tribunal. Judge Xue Henquin explained in the Biennial Conference of the Asian Society of International Law that this was a “cultural” trait of the Chinese. They just don’t like to be sued.

Alunan’s warnings therefore should be qualified. Insofar as the Chinese claim to the West Philippine Sea is concerned, China will not only resort to sanctions and sabotage in order to defend its claim. In fact, its published defense policy is to develop sea-denial capability in the West Philippines Sea from 2010 to 2020. This means that it will not have second thoughts in ousting countries, even through the illegal use of force, that it views as “intruders” in the disputed islands and shoals in the Spratlys and Panatag. On the other hand, given China’s antipathy towards the arbitration, which, if the Tribunal assumes jurisdiction will surely result in judgment against it, China will apply, all sorts of pressure for the country to withdraw the same. This is where the sanctions and sabotage may come to play, as warned by Alunan.

In any case, Alunan’s warning about the sabotage on our power grid deserves serious attention. With allegations of price fixing now hounding our power producers, Congress should seriously re-examine its earlier view that power generation and distribution are not in the nature of public convenience. Had they been as such as in fact they are, the state could have exercised the necessary regulation that could have prevented these allegations of price fixing today. Moreover, power generation and distribution are franchises. They are for the public with the latter as end users. Ergo, both businesses are hence vested with the public interest and hence, their entitlement to engage in these kind of business should be in the nature of a privilege and not a right. The consequence of this would be an outright revocation of their franchise if the allegations of price fixing could be proven.

In any case, while I fully concur with Alunan that the Philippines should be weary of China’s retaliation, perhaps we should still not be too alarmed on the consequences of the filing of our memorial due on the 30th of this month.

I think what China objects to is the initiation of the arbitral proceedings itself and not the memorial per se. In fact the Chinese, through Judge Xue, considers the arbitration as a “substantive breach” of the code of conduct agreed upon by China and ASEAN. What baffles me on this point is how China can complaint that a peaceful resort to peaceful arbitration can be a breach of a treaty obligation while at the same time, resorting to the firing of water canons at unarmed Filipino subsistence fishermen as being in compliance with the said code of conduct.

One final point. Alunan said that the barring of Philippine bananas was because of the initiation of the arbitration proceedings. This is not the case. The resort to non-0-trade barriers against our bananas was an offshoot of our navy boat arresting Chinese fishermen in Panatag. Fortunately, while China can resort to this anew, it will not be as easy as it was in the past. This is because meanwhile, ASEAN and China entered into a bilateral investment agreement that grants protection to both our investments and export products. This means that it will be expensive for China to bar entry of any of our export commodities henceforth. This courtesy of the ASEAN Investment treaty with China.

(as published in the column of Atty. Harry L. Roque Jr. in Manila Standard Today, 27 March 2014)

 

The Judges of the Nine-Dash lines

The arbitration initiated by the Philippines against China impugning
the validity of China’s nine-dash lines appear to be on track. Last
week, pursuant to the UN Convention on the Law of the Sea, the
Japanese President of the international tribunal on the Law of the Sea
(ITLOS) completed the five man tribunal that will rule on the
Philippines arbitral claims. Initially, the Philippines appointed its
nominee to the panel, the German Judge at the ITLOS, Professor Rudiger
Wolfrum. Later, the ITLOS president appointed a polish academic to be
act as China’s arbitrator to the panel, Mr. Stanislaw Pawlak. Last
week, the three remaining arbitrators were appointed: Mr. Jean-Pierre
Cot of France, Mr. Chris Pinto of Sri Lanka, and Mr. Alfred Soons of
the Netherlands.

A jurist once remarked that “the law is what the Judges say it is”.
This means that while the Philippines has claimed thattChina’s
nine-dash lines is contrary to the UNCLOS, the 5 man tribunal will be
the sole judge of whether this is in fact the case. Before they can
decide the issue on the merits, they have first to rule whether the
Philippines submissions are covered by the compulsory and binding
dispute procedure under UNCLOS; that is, that it involves issues
relating to “application and interpretation” of the Convention; and
that the issues are not covered by any of China’s reservations, to
wit: disputes involving maritime delimitation; military activities,
including military activities by government vessels and aircraft
engaged in noncommercial service; and disputes concerning law
enforcement activities in regard to the exercise of sovereign rights
or jurisdiction.

Since this five man tribunal will rule on whether China can treat the
South China Sea as its lake,a lot hinges on who these appointed
arbitrators are, Fortunately, in an effort perhaps to convince China
that the Tribunal will arrive at the correct decision, the ITLOS
President, despite the pending maritime disputes existing between his
own state of Japan and China, appointed perhaps the most qualified
arbitrators to rule on the issues of both jurisdiction and the merits.

Here is a short summary of who these arbitrators are:

Mr. Chris Pinto- member of the Sri Lanka bar and Barrister at the
Inner temple, London. Graduate of University of Sri Lanka
(Peradeniya), LL.B; and University of Cambridge: LL.M (International
Law). Honorary Ll. D from University of Colombo (Sri Lanka). Former
.Legal Officer, International Atomic Energy Agency, Vienna.
(1960-1963); Attorney, World Bank, Washington, D.C. (1963-1967)The
Legal Adviser, Ministry of Foreign Affairs, Sri Lanka.
(1967-1977)Member, Sri Lanka Delegation to the U.N. Conference on the
Law of Treaties, Vienna. (1968-1969)Ambassador of Sri Lanka to Germany
and Austria. (1977-1982)Member and Chairman, U.N. International Law
Commission, Geneva.(1973-1982) ;Member (later Chairman), Sri Lankan
Delegation, Third U.N. Conference on the Law of the Sea. (1973-1982)
Secretary-General, Iran-United States Claims Tribunal, The Hague.
(1982 to present) Secretary-General, Iran-United States Claims
Tribunal.
Member (Sri Lanka), Permanent Court of Arbitration, The
Hague.Alternate Member (Sri Lanka), International Court of Arbitration
of the International Chamber of Commerce, Paris.Sole arbitrator in
dispute between Singapore firm and Sri Lanka State Timber Corporation
(Permanent Court of Arbitration);President of Five Member Tribunal in
marine environmental dispute Between Malaysia and Singapore. (Under
Annex VII of the UNCLOS). Source: Source:
http://www.sccietac.org/custom/sccietac/arbiterDetail.jsp?id=1921

Judge Jean-Pierre Cot

Member of the Tribunal (ITLOS) since 1 October 2002; re-elected as
from 1 October 2011; President of the Chamber for Marine Environment
Disputes 2008-2011. Licence en droit, Docteur en droit public, Paris
Law Faculty (1955–1965); Agrégé des facultés de droit et des sciences
économiques (1966). Professor of public and international law and
Dean, University of Amiens (1966–1969); Professor of public and
international law, University of Paris-I (Panthéon-Sorbonne)
(1969–1998); Emeritus Professor, University of Paris-I (1999–present);
Associate Research Fellow, Université Libre de Bruxelles
(1999–present); Counsel and Advocate in a number of cases before the
International Court of Justice: Frontier Dispute (Burkina
Faso/Republic of Mali), Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Kasikili/Sedudu Islands (Botswana/Namibia), Armed
activities on the territory of the Congo (Democratic Republic of the
Congo v. Burundi), Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Sovereignty over Pulau Litigan and
Pulau Sipadan (Indonesia/Malaysia); Member of an arbitral tribunal of
the International Chamber of Commerce; Counsel and advocate, arbitral
tribunal, France/UNESCO; President of an arbitral tribunal established
within the framework of the European Development Fund; Judge ad hoc,
International Court of Justice, Maritime Delimitation in the Black Sea
(Romania v. Ukraine),Aerial Herbicide Spraying (Ecuador v. Colombia),
Territorial and Maritime Dispute (Nicaragua v. Colombia) and Temple of
Preah Vihear, Interpretation (Cambodia v. Thailand).

.

Source: http://www.itlos.org/index.php?id=83

MR.ALFRED H.A.SOONS, Studied law at Utrecht University, The
Netherlands, followed by postgraduate studies in international law at
the University of Washington (Seattle, USA) and Cambridge University
(UK). He obtained a PhD-degree at Utrecht University in 1982.
Professor of public international law and director of the Netherlands
Institute for the Law of the Sea (NILOS) at Utrecht University in
1987. Acted as counsel and arbitrator he has been involved in
international litigation at the International Court of Justice and
arbitral tribunals.

Source: http://untreaty.un.org/cod/avl/pdf/ls/Soons_bio.pdf

Judge Stanislaw Pawlak

Member of the Tribunal since 1 October 2005. Born: Kalisz, Poland, 27
September 1933; Education: Master of Law, University of Warsaw (1955);
Doctor of Law, University of Warsaw (1967); Doctor habilitated of
Political Science, University of Warsaw (1973). Professional
Experience: Legal Adviser and Analytic Officer, Polish delegation to
the Neutral Nations Supervisory Commission in Panmunjon, Korea
(1956–1958); Attaché and Second Secretary, Polish Embassy, Tokyo
(1958–1963); Senior Counsellor, Ministry of Foreign Affairs
(1963–1965, 1970–1972); Deputy Chief, Polish delegation to the
International Control Commission, Saigon, Viet Nam (1965–1966); First
Secretary, Polish Embassy to the United States of America (1967–1970);
Deputy Director, Foreign Minister’s Office (1973–1975); Polish
Representative to the UN General Assembly (1973–1978, 1983–1990,
2002–2005); Associate Professor of International Relations and
International Law, Faculty of Journalism and Political Science,
University of Warsaw (1974–2001); Director, Department of
International Organizations, Ministry of Foreign Affairs (1975–1978);
Ambassador, Canada (1978–1983); Director, Legal and Treaty Department,
Ministry of Foreign Affairs (1983–1986); Head of Polish delegation,
talks with the GDR delegation on the Agreement of 22 May 1989 on
delimitation of the maritime boundary with the GDR (1983–1988); Head
of Polish delegation, talks with the USSR delegation on the
delimitation of the Polish-Soviet sea border (1985); Chairman, Polish
delegation to the Vienna diplomatic conference which drew up the draft
Convention on the law of treaties between States and international
organizations and between international organizations (1986);
Director, International Organizations Department, Ministry of Foreign
Affairs (1986–1989); Ambassador and Permanent Representative of
Poland, UN, New York (1989–1991); Visiting Professor, various
universities in the United States and Syria (1990–2001); Chairman,
group of Polish experts, talks with the delegation of experts of the
Russian Federation and delegations of experts of other interested
States on protection and conservation of marine resources of the Sea
of Okhotsk (1992–1995); Delegate of Poland to the Steering Committee
for Human Rights (CDDH), Council of Europe (1992–1995);
Deputy-Director, Legal and Treaty Department, Ministry of Foreign
Affairs (1992–1996); Chairman, Polish Delegation to the International
Conference which drew up the 1994 Convention on Protection of
Fisheries in the Bering Sea (1993–1994); Chairman, Polish Delegation
to the UN Conference for the Agreement on Straddling Fish Stocks and
Highly Migratory Stocks (1993–1995); Ambassador, Syrian Arab Republic
and Hashemite Kingdom of Jordan (1996–2001); Adviser to the President
of the Republic of Poland (2001–2005); Titular Ambassador
(2002–present); Professor of International Relations and Public
International Law, Faculty of Journalism and Political Science,
University of Warsaw (2002–2011); Professor Emeritus, University of
Warsaw; President, thirteenth Meeting of States Parties to the
Convention (2003); Chairman, Polish delegations to the thirteenth and
fourteenth Meetings of States Parties to the Convention (2003–2004);
nominated to the List of Arbitrators under article 2 of annexes V and
VII to the Convention (2004); Professor and Dean, Faculty of Social
Science and Administration, Warsaw Academy of Computer Science and
Administration (2005–present).

Source: http://www.itlos.org/index.php?id=86

Judge Rüdiger Wolfrum

Member of the Tribunal since 1 October 1996; re-elected as from 1
October 1999 and 1 October 2008; Vice-President of the Tribunal
1996-1999; President of the Chamber for Marine Environment Disputes
1997-1999; President of the Tribunal 2005-2008; Member of the Special
Chamber formed to deal with the Case concerning the Conservation and
Sustainable Exploitation of Swordfish Stocks in the South-Eastern
Pacific Ocean 2000-2009

Education: First State Examination (1969); Second State Examination
(1973); Dr. jur., University of Bonn (1973); Habilitation, venia
legendi for National Public and International Public Law (1980).

Professional Experience: Assistant Professor, Institute of
International Law, University of Bonn (1973–1982); Research fellow,
Center for Oceans Law and Policy, University of Virginia (1977–1978);
Professor of National Public and International Public Law, University
of Mainz (1982); Professor, Chair of National Public and International
Public Law and Director, Institute of International Law, University of
Kiel (1982–1993); Vice-Rector, University of Kiel (1990–1993); Judge
at the Courts of Appeal for Administrative Matters, Lüneburg and
Schleswig (1986–1993); Director, Max Planck Institute for Comparative
Public Law and International Law, Heidelberg (1993–present);
Professor, Faculty of Law, University of Heidelberg (1993–present);
Vice-President, German Research Foundation (1996–2002); Honorary
Professor, Faculty of Law, University of Hamburg (2002–present);
Vice-President, Max Planck Society for the Advancement of Science
(2002–2005); Honorary Professor, Faculty of Law, University of
Pretoria; Member, Board of the Max Planck Foundation on International
Peace and Rule of Law (2012).

German delegation to: Third UN Conference on the Law of the Sea
(1980–1982), Preparatory Commission for the International Seabed
Authority and for the International Tribunal for the Law of the Sea
(1982), 4th Special Consultative Meeting concerning Antarctic mineral
resource activities (1983–1988); Chairman of the Legal Working Group
of the Antarctic Treaty Consultative Meetings preparing an Annex to
the Protocol on Environmental Protection to the Antarctic Treaty on
responsibility for environmental damage (1993–1998); UN Committee on
the Elimination of Racial Discrimination (1990–2000, re-elected 1994
and 1998); Founding Member of the Humanities Section of the German
Academy of Natural Sciences (Leopoldina) (2003); Board of Trustees of
the University of Hamburg (2003–present); Chairman, Board of
theDeutsche Gesellschaft für Völkerrecht (German Society for
International Law) (2005–2009); Institut de droit international
(2007–present).

Source: http://www.itlos.org/index.php?id=80

So, How Does the Chinese Press Feel About the UNCLOS Arbitration?

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by Julian Ku, Opinio Juris

For those of you wondering how seriously the Chinese media is taking the Philippines’ arbitration claim against China over the South China Sea (there must be at least two of you out there), here is an illustrative cartoon from a Chinese newspaper, “JingChu Times”, in Central China (although originally from another publication).

Although one doesn’t need to read Chinese to get the jist, here is my attempt to translate anyway.

The Foot is labeled: “Chinese Territory”

The Fish biting the Foot’s toe is labeled: “The Philippines”.  The Fish is holding a sign with the words: “Mine!”.

Yes, this Annex VII UNCLOS arbitration claim is really sending shock waves throughout China.

Understanding our Unclos arbitral submission

After almost a year since our stalemate with China on Panatag Shoal, it’s about time we brought the controversy to the binding and compulsory dispute settlement procedure of the UN Convention on the Law of the Sea (Unclos). But contrary to many media reports, the action is not before the International Tribunal on the Law […] More →

‘Critical date’ and Chinese hegemony

China appears to be applying the law literally. The rule is where there is a dispute to territory, the claimant that can show a superior claim to the same, be it land or water, will be adjudged as having title thereto. In land territory, the rule is that discovery alone gives rise to an inchoate […] More →