Posts Tagged ‘exclusive economic zone’

Philippines’ South China Sea Exploration Plan With China Draws Scrutiny — China’s Propaganda Machine Touts Deals With Asean, Nations China Wants To Exploit

August 5, 2018

The Philippines and China are finalizing an exploration deal in a disputed area of the South China Sea, where 60 percent of the proceeds would go to Manila and the rest to Beijing despite warnings the development could diminish Manila’s claim to the region.

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The deal was announced by Foreign Secretary Alan Peter Cayetano earlier this week, before he traveled to Singapore to attend a regional ministerial meeting where China was also present.

While full details of the proposed deal were not disclosed, Cayetano said officials from both sides and independent experts on international law were drafting a framework for the agreement. The draft deal is likely to be ready this month or in September.

He did not say where the proposed exploration site is, but President Rodrigo Duterte had hinted that an area in the Reed Bank could be open for exploration.

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Filipinos should ask the Vietnamese how the oil sharing with China is going….

Initial seismic surveys have indicated that Reed Bank, also called Recto Bank, could be rich in natural deposits. While it is within the Philippines’ exclusive economic zone, which was affirmed by an arbitration court in 2016, China has continued to contest its ownership.

Gary Alejano, a former Marine captain who serves as an opposition member of the House of Representatives, said the arbitration ruling specifically puts the area under Philippine control.

“We do not co-own the West Philippine Sea with China,” he said, using the Philippine name for the South China Sea. “Why would our government want to share resources that we alone legally own?”

“Just because the Philippines will presumably take a larger share given the 60-40 scheme being proposed, does not guarantee that we are going to be on the winning end,” said Alejano, who has been following developments in the sea region.

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“This is ultimately an issue of sovereignty, especially on the question of which law will apply: Is it the Philippine law, Chinese law, or international law? We also have to make sure that the joint exploration would not in any way diminish the arbitration ruling which largely favored the Philippines,” he said.

Meanwhile, security analyst Rommel Banlaoi said the reported agreement was a breakthrough that could propel exploration forward even as Manila should continue to assert its rights in the sea.

“We should not compromise with China, and let them know that we are not giving our rights in that area,” Banlaoi said. “Otherwise, our arrangement with China would fall under suspicion.”

Alejano said it was not a guarantee that Beijing would stick to the agreement, as it has shown in past actions in the region.

China had thumbed down the ruling, even as governments around the world welcomed it as a step toward ensuring peace in the vital sea lane. The South China Sea is considered a powder keg in a region where varying claimants have had armed confrontations.

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Chinese bomber over Philippine territory. Coercion?

A sham policy?

The Spratlys, an island chain in the sea, are claimed in whole or in part by China, Taiwan and Association of Southeast Asian Nations (ASEAN) members Brunei, Malaysia, the Philippines, and Vietnam.

It is considered a flashpoint in the region, and while the claimants have agreed to desist from any actions that would complicate the matter, China has been expanding and militarizing islands it occupies.

Alejano argued that the Philippine-China exploration deal would have implications to the other claimants and may be used by Beijing as a premise that it could enter into bilateral agreements with other countries.

“The Duterte administration should realize that the decision whether to pursue a joint exploration or not would define our relationship with China and our relationship with our neighboring countries as well,” Alejano said.

Opposition Sen. Risa Hontiveros branded the Philippines-China deal as “preposterous and dangerous.”

“It reverses our historic victory at The Hague and signs away Philippine sovereignty in the West Philippine Sea,” she said in a statement.

“We have sovereign rights to access offshore oil and gas field, including the Reed Bank, within our 200-mile Exclusive Economic Zone. We don’t share ownership of the West Philippine Sea with China,” Hontiveros said.

She also questioned Duterte’s independent foreign policy which was turning out as a sham policy meant to benefit China.

Duterte has adopted a pro-China policy since he took power in June 2016.

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ASEAN

In Singapore, where ASEAN foreign ministers were attending their annual ministerial meeting, the 10-nation bloc announced it had reached a milestone in talks with China to establish a code of conduct in the sea region.

Negotiations for the code started in March, and the first draft was completed in June in China, Singapore’s foreign minister Vivian Balakrishnan said. He declined to divulge details, citing the sensitivity of the issue, but did say that while negotiations were completed, the code would not necessarily bring an end to territorial disputes.

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A draft of the ministerial statement seen by BenarNews said foreign ministers would express their concerns to China’s continued reclamation in the region. It said China’s move has eroded trust and confidence and could undermine security and stability.

The group also emphasized the importance of “non-militarization and self-restraint” in the conduct of activities in the disputed region, so as not to escalate tensions.

The draft is subject to negotiations and could be refined by the time the ministerial meeting ends on Saturday.

Felipe Villamor in Manila contributed to this report.

https://www.eurasiareview.com/03082018-philippines-south-china-sea-exploration-plan-with-china-draws-scrutiny/

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Above: China’s seven military bases near the Philippines in the South China Sea

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law. China occupies the South China Sea illegally. Asean seems ready to agree to China’s “de facto ownership” — even though it violates rule of law.

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South China Sea: Evolving Strategy

August 1, 2018

For many who follow developments in the South China Sea, the July 2016 tribunal ruling in the Philippines’ case against China has become the equivalent of the birth of Jesus in the Gregorian calendar: Developments are considered B.A. and A.A.—Before Award and After Award.

In the first year after the award, compliance was fair: Beijing largely kept its actions, if not its words, within the letter of the ruling.

By  Lynn Kuok
Lawfare

In late July 2017, however, things went south. The Chinese government insists that the situation in the South China Sea is “calm” and that the region is “in harmony”; it accuses the United States of stirring up trouble. But any stability in the past year has largely been the result of smaller countries in the region resigning themselves to the notion that the weak suffer what they must.

Two years on from the ruling, the stakes are clear: The challenge immediately after the award was getting smaller countries on China’s periphery to be less risk-averse in openly supporting the rule of law; now, the test has become whether the United States and its allies can help countries stand firm against incursions into their exclusive economic zones and defend a rules-based order.

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Exclusive Economic Zone Encroachments

The main significance of the 2016 ruling was to clarify resource rights. An international tribunal in The Hague ruled that China cannot claim historic rights to resources in the waters within a “nine-dash line” encompassing much of the South China Sea if these waters are within the exclusive economic zone, or EEZ, of other coastal states. Such rights, the tribunal determined, were extinguished when China ratified the United Nations Convention on the Law of the Sea (UNCLOS) in 1996.

The tribunal also clarified that none of the features in the Spratly Islands—a group of features in the south of the South China Sea that China and five other actors claim—generates an exclusive economic zone that China can claim overlaps with the exclusive economic zones of coastal states. Taken together, the findings make clear that coastal states in the South China Sea are entitled to full 200-nautical-mile exclusive economic zones unencumbered by any Chinese claims.

Although the award is not technically binding except between the parties to proceedings, namely, the Philippines and China, it was clear on China’s maritime entitlements. Beijing should adhere to its findings.

Instead, shortly after the one-year anniversary of the award, Beijing reportedlythreatened Vietnam with military action if Vietnam did not stop drilling in its own exclusive economic zone. Prompted by concerns that Washington did not have its back, Hanoi stopped its operations. The Association of Southeast Asian Nations and the rest of the international community averted their gaze. This might well come to be regarded as the point when a rules-based order began unraveling in the region. In March and May this year, Vietnam again attempted to drill for oil and gas in its exclusive economic zone, and Beijing issued similar warnings.

Vietnam is not the only country Beijing has leaned on. Brunei, Malaysia and the Philippines have all come under pressure to concede “joint development” in their exclusive economic zones, a term that has come to suggest legitimate overlapping claims: Where there are such claims, the U.N. Convention on the Law of the Sea stipulates that parties should seek to enter into “provisional arrangements of a practical nature” prior to delimitation of the exclusive economic zone or continental shelf.

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China H-6 bomber over Scarborough Shoal, the Philippines

Fortresses in the Sea

In recent months, Beijing’s militarization of the South China Sea has escalated. In April, it deployed anti-ship cruise missiles, surface-to-air missiles and electronic jammers to Fiery Cross Reef, Subi Reef and Mischief Reef in the Spratlys. In May, it landed long-range bombers on Woody Island in the Paracels, features to the west of the South China Sea.

The tribunal did not directly address the question of whether the militarization of features was lawful. It considered only whether Beijing’s island-building activities in the South China Sea were military in nature to determine whether it had jurisdiction to rule on these activities. Under the U.N. Convention on the Law of the Sea, when a state signs, ratifies or accedes to the convention, it may declare that it does not accept compulsory procedures entailing binding decisions in certain categories of disputes, including military activities. China availed itself of this option in 2006. The tribunal determined that for ascertaining whether the exclusion applied to deny it jurisdiction, it would take Beijing’s word when it insisted that activities were not military in nature.

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Still, China’s activities on features in the South China Sea are problematic. Beijing maintains that it is entitled to do as it wishes on its territory and that this is allowed by international law.

But Mischief Reef is not China’s territory. While the tribunal did not have jurisdiction to rule on competing claims to sovereignty, it did have jurisdiction to determine whether a feature is, at first instance, entitled to an independent sovereignty claim. The tribunal made clear that jurisdiction over a low-tide elevation lies with the country in whose territorial sea or exclusive economic zone it is located. Because Mischief Reef is a low-tide elevation in the Philippines’ exclusive economic zone, the Philippines has jurisdiction over it.

As for the rest of the features in the South China Sea, sovereignty continues to be fiercely contested. International law on the responsibility of an occupying state in a disputed area is far from clear, so Beijing’s actions are, at best, in a legal grey zone.

Lawfare

While Beijing’s dramatic military buildup in the South China Sea has received much attention, its attempts to undermine the tribunal’s award through “lawfare” have been largely overlooked. In the long run, this could shape the narrative on the South China Sea and promote Beijing’s ability to justify its claims and actions.

In mid-May, the Chinese Society of International Law published a “Critical Study” on the South China Sea arbitration case. Over nearly 750 pages, it detailed why it thought the tribunal erred. It was mostly an unremarkable rehash of arguments long raised by Beijing.

Notably, however, the study also attempted to advance an argument that China’s Ministry of Foreign Affairs first laid the foundation for in a statement issued just after the award. The statement’s wording was vague, but it flagged that China was seeking to claim maritime zones from groups of features in the South China Sea rather than from individual features. In other words, Beijing appears to be making the case that even if not entitled to historic rights within the nine-dash line, it was entitled to resources in a wide expanse of sea on the basis of an exclusive economic zone generated from outlying archipelagos.

But under the U.N. Convention on the Law of the Sea, only archipelagic states (such as the Philippines and Indonesia) may draw straight archipelagic baselines from which maritime zones may be generated. The tribunal explicitly found that there was “no evidence” that any deviations from this rule have amounted to the formation of a new rule of customary international law.

China’s arguments are unlikely to convince lawyers, but that is not their intended audience. Rather, their target is the political and business elites in Southeast Asia who are already predisposed to accept Beijing’s claims in the South China Sea. They fear Beijing’s threat of coercive economic measures and eye promises of development through offerings such as the Belt and Road Initiative.

China is also seeking to shape international law to its liking through the strategic use of research funding and has prioritized issues of national import, including the law of the sea.

Holding Beijing Accountable

In April, Adm. Phil Davidson, then commander-designate of U.S. Pacific Command, testified at a Senate Armed Services Committee hearing that China has attained peace-time control of the South China Sea.

At present, such control is not complete: The United States continues to assert maritime rights in the South China Sea and, in a positive development, other maritime powers—Australia, France and the United Kingdom—have also asserted such rights. These operations send the important message that countries apart from the United States care about maintaining an open South China Sea and that rules matter.

However, the Trump administration’s failure to express support for Vietnam or to condemn China’s threats suggests that while smaller countries on China’s periphery are expected to support maritime powers’ defense of navigation, overflight and other freedoms of the seas, the United States and others are quite willing to hang these countries out to dry when it comes to  defending their economic rights—a matter that directly impacts their interests. It also feeds into the narrative that support for the United States’ “America First” agenda is effectively a one-way street: all for one and one for none. As countries make their strategic calculations, this will hurt U.S. interests.

Holding Beijing accountable requires action. A comparison of  Beijing’s behavior in the first and second year after the tribunal ruling suggests that it responds to coordinated pressure to abide by the rule of law and, conversely, takes advantage of times when the world looks away. As a major power, the United States must organize a regional and international effort to insist that Beijing abide by international law. What should this entail?

First, coastal states must be supported in standing up to any incursions into their exclusive economic zones, including through legal action initiated by coastal states. Second, there must be renewed calls to abide by the tribunal’s ruling. Washington went quiet on this partly because of Manila’s own reticence but also because of the ruling’s implications for U.S. claims to EEZs from small, uninhabited features in the Pacific. The United States should not miss out on the opportunity to demonstrate consistency in supporting the rule of law both within and outside of the South China Sea.

In this vein, the United States should finally accede to UNCLOS. The United States has already committed itself to abiding by the convention; acceding to it, as Adm. Davidson points out, “would give the United States greater credibility when calling on other states to adhere to the same rules.” Many observers note the double standard when the United States calls on other states to abide by the U.N. Convention on the Law of the Sea and comply with decisions of courts and tribunals regarding its interpretation when the United States itself has not acceded to the convention.

Fourth, Beijing’s claims that it is entitled to do as it likes on its own territory should be challenged. This involves reiterating that Mischief Reef is not Chinese. It also involves giving greater consideration to the responsibilities of an occupying state on disputed territories. Beijing should keep its behavior in check on features it occupies but that are also claimed by other parties.

Finally, a successful South China Sea policy must be part of a well-conceived and implemented Asia policy. Regional countries consider wider strategic developments in determining how best to respond in the South China Sea. The United States must continue to demonstrate a clear commitment to the region if it is to effectively counter growing sentiments that China is an unstoppable force and that caving in to Chinese demands now avoids greater pain later. In particular, the Trump administration’s Indo-Pacific strategy will need a strong economic component to provide viable alternatives to China’s ambitious Belt and Road Initiative.

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Mattis at the Shangri-La Dialogue in Singapore

At the International Institute for Strategic Studies’s Shangri-La Dialogue meeting of defense officials in Singapore in June, Defense Secretary James Mattis was sensitive to the region’s need for greater investment, including in infrastructure. But it is unclear whether “private sector-led economic development” will be sufficient. Other possibilities include a coordinated infrastructure fund that the United States and its allies could contribute to. A compelling vision must accompany any such fund: Japan outspends China in infrastructure investment in Southeast Asia, but this goes largely unnoticed.

Beijing is adept at using all instruments, including the law, to reinforce its claims. The United States and other like-minded partners must learn to do likewise if they are to have any hope of turning the tide in the South China Sea. The question for the Trump administration is less one of capacity, or even means, than one of will and focus.

https://www.lawfareblog.com/countering-chinas-actions-south-china-sea

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

Philippines: Former President Against Proposed Sharing of South China Sea Oil, Gas With China — Philippines has no obligation to share its resources

August 1, 2018

Former president Benigno Aquino III opposes the proposed 60-40 sharing of natural resources between the Philippines and China in the joint exploration of the West Philippine Sea.

Aquino said the area is within the Philippines’ exclusive economic zone (EEZ) and the country has no obligation to share its resources with the Asian giant.

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Benigno Aquino III

He again shared a “joke,” China’s supposed motto, which was often used during his term. What started as a joke, he said, seems to be coming true under the Duterte administration.

“Exclusive economic zone ang pinag-uusapan eh. Parang wala tayong obligasyon na makihati sa kanila. Noong panahon ko may joke eh, sabi raw nila: ‘What is ours is ours. What is yours, we share.’ So ngayon, parang nagiging totoo na ata ito,” Aquino said.

(We’re talking about our exclusive economic zone. We have no obligation to share it with them. During my time, there was a joke. China said: “What is ours is ours. What is yours, we share.” So now, it seems this is coming true.)

“Balikan lang natin fundamental dito: exclusive ito sa atin, meron ba tayong obligasyon na bahagian sila?” he added. (Let’s just go back to the fundamental issue here: This is exclusively for us. Do we have an obligation to share it with China?)

For Aquino, who brought China to court over the disputed waters, the Asian neighbor cannot be trusted. He said the proposed 60-40 scheme favoring the Philippines could end up being disadvantageous to the country.

“Ang bargaining position, 60-40. Baka naman sa dulo nito ay baliktad, baka sila 60, baka 70… Sa halip na wala silang karapatan, biglang ngayon eh baka naman kailangang amuhin sila sa dulo. At para mapaamo, kailangang mas malaki ang parte nila,” the former president said.

(The bargaining position is 60-40. But in the end, it might become the opposite. They might get 60% of the share or 70%. Instead of them having no rights, all of a sudden we might have to woo them in the end. And to woo them, we have to give them a larger share.)

“Bantayan natin na sana ‘di maging gano’n ang mangyari (Let’s be vigilant that it won’t happen),” he added.

Foreign Secretary Alan Peter Cayetano previously said China is “open” to the joint exploration proposal, adding that the draft framework might be out by September.

President Rodrigo Duterte himself made the proposal in a speech last April.

“Precisely I said, with the issue of the [South] China Sea, leave it at that, it’s geopolitics. Anyway, China has offered joint exploration and joint operation. And I said, maybe, we give you a better deal, 60-40,” Duterte said.

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Malacañang earlier spoke of two areas in the West Philippine Sea being considered for the joint activity – Service Contracts 57 (Calamian) and 72 (Recto Bank).

Senior Associate Justice Antonio Carpio warned, however, that the 1987 Constitution prohibits joint development within the Philippines’ EEZ.

Maritime expert Jay Batongbacal also said allowing joint development in such an area could be seen as “inconsistent” with the arbitral ruling won by the Philippines in 2016.

In its ruling, the Permanent Court of Arbitration said “there was no legal basis for China to claim historic rights to resources, in excess of the rights provided for by the Convention, within the sea areas falling within the ‘9-dash line.'” (READ: FAST FACTS: South China Sea dispute)

Despite the ruling, China continues its military buildup in the West Philippine Sea and harassment of Filipino fishermen in areas declared by the decision as common fishing grounds. – Rappler.com

https://www.rappler.com/nation/208651-noynoy-aquino-warns-vs-west-philippine-sea-joint-exploration

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

South China Sea: Philippines Defense Secretary Calls International Court Ruling “Empty Victory” — The Rule of Law Administration of Rodrigo Duterte

July 28, 2018

Defense Secretary Delfin Lorenzana apologized for saying the ruling favoring the Philippines over disputes in the West Philippine Sea is an “empty victory.”

He extended his apologies to former Foreign Affairs Secretary Albert Del Rosario and Acting Supreme Court Chief Justice Antonio Carpio. The two helped argue the Philippines’ case against China before the Permanent Court of Arbitration (PCA) in The Hague.

DIPLOMATIC PROTEST. Acting Chief Justice Antonio Carpio and former Philippine foreign secretary Albert del Rosario urge the Duterte administration to file a diplomatic protest against China's bombers in the South China Sea. File photos by LeAnne Jazul/Rappler

Acting Chief Justice Antonio Carpio and former Philippine foreign secretary Albert del Rosario

CNN

“I sincerely apologize to these two great gentlemen for ruffling their feelings when I said that the PCA ruling in our favor is an empty victory. Both have reasons to be miffed for they worked hard to win our case before the PCA. It was not my intention to denigrate their achievement,” Lorenzana said in a message to reporters Friday.

Earlier media reports claimed Carpio and Del Rosario did not take Lorenzana’s statements well.

But Lorenzana then said that with current realities, the victory claimed is premature and incomplete.

“The phrase ’empty victory’ does not pertain to the efforts of Mssrs. Carpio and del Rosario in successfully winning our case in the PCA but rather, to the outcome of the ruling. With the realities on the ground, the victory being claimed is premature and incomplete since the ruling has no enforcement mechanism,” he added.

The Defense chief explained that until our exclusive economic zone (EEZ) is under the country’s complete control, and until the ruling is fully enforced, it remains just “a piece of paper.”

“If it is a victory, then why is the (West Philippine Sea) not under our complete control? If we are victorious, why are the Chinese still in the (West Philippine Sea)? Lest we forget, the Malaysians and Vietnamese are also within our exclusive economic zone, occupying many islands which they have improved through the years,” he said.

Lorenzana’s remark came Monday, after the Social Weather Stations’ latest survey showed that 9 of 10 Filipinos deemed important that the Philippines to regain control over island occupied by China in the contested waters.

“We won, but it is an empty victory. The Chinese won’t leave our EEZ  and instead it continues to assert its historical rights over the areas within the nine-dash line,” he earlier said.

But Lorenzana said how the survey questions were framed might be wrong.

“Many people also need to understand that the PCA ruling was about ‘sovereign rights’ and not ‘sovereignty,’ which are two different things,” Lorenzana added.

The 2016 ruling junked China’s nine-dash line claim over the South China Sea, which overlaps with parts of the country’s 200-nautical mile (EEZ). China has refused to observe the international tribunal’s ruling.

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

President Rodrigo Duterte has been criticized for his warmer ties with China, but he vowed to protect the country’s sovereign rights in his third State of the Nation Address on Monday.

“Our improved relationship  with China does not mean we will waver to defend our interest in the West Philippine Sea,” Duterte had said. 

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The Philippines has extensive defenses on its island holdings

China Is Winning in the South China Sea

July 18, 2018

The U.S. should respond more vigorously to Beijing’s violations of international law.

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Two years after an international tribunal rejected expansive Chinese claims to the South China Sea, Beijing is consolidating control over the area and its resources. While the U.S. defends the right to freedom of navigation, it has failed to support the rights of neighboring countries under the tribunal’s ruling. As a result, Southeast Asian countries are bowing to Beijing’s demands.

The tribunal’s main significance was to clarify resource rights. It ruled that China cannot claim historic rights to resources in waters within the 200-nautical-mile exclusive economic zone of other coastal states. It also clarified that none of the land features claimed by China in the Spratlys, in the southern part of the South China Sea, generate an exclusive economic zone.

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In late July 2017, Beijing threatened Vietnam with military action if it did not stop oil and gas exploration in Vietnam’s exclusive economic zone, according to a report by the BBC’s Bill Hayton. Hanoi stopped drilling. Earlier this year, Vietnam again attempted to drill, and Beijing issued similar warnings.

Other countries, including the U.S., failed to express support for Vietnam or condemn China’s threats. Beijing has also pressured Brunei, Malaysia and the Philippines to agree to “joint development” in their exclusive economic zones—a term that suggests legitimate overlapping claims.

Meanwhile China is accelerating its militarization of the South China Sea. In April, it deployed antiship cruise missiles, surface-to-air missiles and electronic jammers to artificial islands constructed on Fiery Cross Reef, Subi Reef and Mischief Reef. In May, it landed long-range bombers on Woody Island.

Chinese envoy to the Philippines Xiao Jinhua, right, said that the Philippines was not and would not be a province of China.  Presidential Photo/Simeon Celi Jr., File

Beijing says it can do as it wishes on its own territory. But under international law, Mischief Reef isn’t Chinese. The 2016 tribunal decision made clear that jurisdiction over a low-tide elevation lies with the country in whose territorial sea or exclusive economic zone it is located, and no other country can claim sovereignty. Because Mischief Reef is located in the Philippines zone, the Philippines has jurisdiction over it.

Sovereignty over the rest of the features in the South China Sea continues to be fiercely contested. As I wrote in these pages last year, international law on the responsibility of an occupying state in a disputed area is far from clear, so Beijing’s actions are at best in a legal gray zone.

While Beijing’s dramatic military buildup in the South China Sea has received much attention, its attempts at “lawfare” are largely overlooked. In May, the Chinese Society of International Law published a “critical study” on the South China Sea arbitration case. It rehashed old arguments but also developed a newer one, namely that China is entitled to claim maritime zones based on groups of features rather than from individual features. Even if China is not entitled to historic rights within the area it claims, this argument goes, it is entitled to resources in a wide expanse of sea on the basis of an exclusive economic zone generated from outlying archipelagoes.

But the Convention on the Law of the Sea makes clear that only archipelagic states such as the Philippines and Indonesia may draw straight archipelagic baselines from which maritime zones may be claimed. The tribunal also explicitly found that there was “no evidence” that any deviations from this rule have amounted to the formation of a new rule of customary international law.

China’s arguments are unlikely to sway lawyers, but that is not their intended audience. Rather Beijing is offering a legal fig leaf to political and business elites in Southeast Asia who are already predisposed to accept Beijing’s claims in the South China Sea. They fear China’s threat of coercive economic measures and eye promises of development through offerings such as the Belt and Road Initiative.

Why did Washington go quiet on the 2016 tribunal decision? One reason is Philippine President Rodrigo Duterte’s turn toward China and offer to set aside the ruling. The U.S. is also worried about the decision’s implications for its own claims to exclusive economic zones from small, uninhabited land features in the Pacific.

The Trump administration’s failure to press Beijing to abide by the tribunal’s ruling is a serious mistake. It undermines international law and upsets the balance of power in the region. Countries have taken note that the tide in the South China Sea is in China’s favor, and they are making their strategic calculations accordingly. This hurts U.S. interests in the region.

The U.S. still has a chance to turn things around. It must coordinate a regional and international effort to insist that Beijing abides by international law. Coastal states must be supported in standing up to any incursions into their exclusive economic zones, including through coastal state-initiated legal action.

There must also be greater pushback against Beijing’s claims that China is entitled to do as it likes on its own territory. In all of this, the U.S. will have greater credibility if it finally accedes to the Convention on the Law of the Sea. These efforts will be critical to defend a rules-based order against China’s bid for hegemony in the region.

Ms. Kuok is an associate fellow at the International Institute for Strategic Studies-Asia and a senior research fellow at the Centre for Rising Powers, University of Cambridge.

https://www.wsj.com/articles/china-is-winning-in-the-south-china-sea-1531868329

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See also:

China won’t allow Philippines to fall into a ‘debt trap’: envoy

Tor:https://peoplestrusttoronto.wordpress.com/2018/07/17/china-wont-allow-philippines-to-fall-into-a-debt-trap-envoy/

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Zhao: China’s loan to finance infrastructure projects will not make the Philippines fall into debt trap

https://durianburgdavao.wordpress.com/2018/07/17/chinese-loans-not-a-death-trap/

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law. Vietnam has been unable to develop its own undersea oil due to China’s aggressive behavior.

Philippines Must Do More In South China Sea To Support International law

July 17, 2018

Despite the bogey of war that President Duterte has raised every time China’s transgressions in the South China Sea/West Philippine Sea (WPS) is brought up, up to 8 out of 10 Filipinos still believe the government should enforce the 2016 ruling of the Permanent Court of Arbitration in the Hague that favored the country’s claims over disputed territories in the area.

In two surveys conducted just weeks before the second anniversary of the Court’s decision, 73 and 80 percent of respondents asked by Pulse Asia and Social Weather Stations, respectively, said Mr. Duterte should assert Philippine sovereignty in the West Philippine Sea.

Editorial

 / 05:08 AM July 17, 2018

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Citing loans and investments from China, the President has set aside the ruling, while his Foreign Secretary Alan Peter Cayetano has declined to show the “50 to 100” protests that he claimed the Philippines has lodged against its northern neighbor. Malacañang’s policy of appeasement appears only to have emboldened China to step up its militarization efforts in the disputed waters, where it has installed military-grade runways, hangars and retractable roofs for anticruise missiles on seized islands. It has also harassed Filipino fishermen in the country’s exclusive economic zone, destroyed reefs and corals, harvested marine resources, and even prevented the Philippine military from erecting shelter from the weather and bringing in supplies for soldiers stationed on Philippine-held shoals.

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By setting aside the ruling, the country also stands to lose 130 billion barrels of oil, gas and mineral deposits in the WPS, as well as territories three times the size of Quezon City, warned Acting Chief Justice Antonio Carpio. Already, “China has been taking half of the annual fish catch in the South China Sea to feed 1.4 billion people,” the magistrate added.

Based on international law, the Philippines’ failure to protest encroachment on its territory is as good as giving it up, Carpio said, adding that the government should file a protest with the United Nations or China itself.

Carpio also debunks the administration’s claim that war is the only other alternative to appeasement, citing the prohibition on war in the Philippine Constitution and the UN Charter.

Instead of playing “willing victim and abettor” to China’s aggressive moves in the WPS, as former foreign secretary Albert del Rosario put it, Carpio has suggested alternative approaches, among them arbitration which, he said, the UN Charter expressly recognizes as a peaceful means of settling disputes. Arbitration is also part and parcel of diplomacy, which the government has repeatedly invoked as the preferred response to China’s willful disregard of the ruling.

Gaining the support of the community of nations is foremost, added Del Rosario, “whether through multilateralism at the UN, or with Asean, or through our bilateral engagements with other states, or an all-out effort in pursuing all of the aforementioned.”

But with the Duterte administration’s defeatist stance over the issue, Carpio said the task of “keeping alive the [arbitral] Award within our country” has fallen on every Filipino … “[who] has a civic duty to preserve and protect the Award so that the next administration can enforce [it].”

It is also every Filipino’s duty, Carpio said, to inform the other peoples of the world “that China’s compliance with the Award is essential to the survival of Unclos as the governing law for the oceans and seas of our planet.” China’s noncompliance would mean the “collapse of the rule of law in the oceans and seas,” he warned. “What will prevail will be the rule of the naval canon.”

The administration’s passive approach to China appears to have roused dissenters to up their game. Last week, huge tarpaulins hailing the Philippines as a province of China were seen hanging from several footbridges in prominent streets in Metro Manila, and even near the airport. For maritime affairs expert Jay Batongbacal, the mocking tarpaulins mark “a turn in the intensity” of protests against Malacañang’s China policy. “It’s when the people begin to be like that—jovial and jok[ing] about the administration—that signals a loss of support and respect,” he added.

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That notion sounds more than plausible, given the overwhelming number of Filipinos who think this administration hasn’t done enough to defend the country’s rights against its bullying neighbor. But will Malacañang even deign to take heed of that ominous public sentiment?

Read more: http://opinion.inquirer.net/114661/do-more-to-enforce-ruling#ixzz5LUia8fDp
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Philippines President Duterte under pressure to press South China Sea claims

July 14, 2018

Two years after arbitration win, Philippine policy slammed as soft on Beijing

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Banners declaring the Philippines a province of China appeared in various parts of Metro Manila on July 12. Nobody has claimed responsibility for the apparent prank.(Contributed photo)

MANILA — Two years after the Philippines won a major legal victory against China at The Hague, President Rodrigo Duterte is coming under pressure to wield the ruling in its South China Sea disputes and to discard what many see as a weak-kneed approach.

At a forum held by local think tank Stratbase ADR Institute on Thursday, former Foreign Affairs Secretary Albert Del Rosario had a question for the diplomats, geopolitical experts and journalists in attendance.

“What should we call one that uses muscle to deprive others of their rights?”

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Former Foreign Affairs Secretary Albert Del Rosario

Del Rosario, who chairs Stratbase, supplied his own answer, “A bully.”

He went on with a counter-query for a “balanced view.” “What may we call one that acquiesces to the abuses against it?”

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“A willing victim,” he said, before branding China “a grand larcenist” and “international outlaw.”

This was how Manila’s former top diplomat portrayed the Philippines’ attitude exactly two years after it won a landmark case regarding claims in the South China Sea.

On July 12, 2016, the Permanent Arbitration Court in The Hague ruled in favor of the Philippines, which had challenged Beijing’s claim over the 3.5 million sq. km. area.

The court, which does not have an enforcement mechanism, ruled that China’s historic “nine-dash line” has no legal basis. It was an embarrassing defeat for Beijing, which says it holds “indisputable sovereignty” over the waterway.

Some $3 trillion to $5 trillion worth of trade passes through the South China Sea every year. Brunei, Malaysia, Vietnam and Taiwan also have territorial claims in the body of water.

Duterte, who assumed the presidency less than two weeks before the ruling, has adopted a nonconfrontational approach on the issue in exchange for billions of dollars worth of economic deals. In a reversal of his predecessor’s policy, Duterte has embraced China, saying the Philippines would find itself at war with the most powerful nation in Asia were it to press its claims.

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Philippine President Rodrigo Duterte is being criticized for taking a soft stance toward China regarding disputes in the South China Sea.   © Reuters
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Alan Peter Cayetano, the incumbent foreign minister, has said the Philippines will not give up “an inch” of territory. Yet he avoids publicly chastising China over its militarization of the sea. Instead, he says missiles installed on China-built islands in disputed areas are not directed at Manila but at those who dare to take on a rising maritime power.

This approach is “naive” and has only worsened the situation, said Jay Batongbacal, director at the University of the Philippines Institute for Maritime Affairs and the Law of the Sea.

“It would be naive to think that being told that the Philippines is not a target would automatically and magically change the region’s geography and alter the strategic location of the country as a potential battle space,” he said at the forum, organized by Manila think tank Stratbase ADR Institute, chaired by Del Rosario.

In June, a video of Chinese coast guards seizing Filipino fishermen’s catch circulated on social media, drawing the ire of many Filipinos. The Philippine government, however, played down the episode.

The incident “is one indicator of the level to which the rules-based order at sea has deteriorated within the Philippines’ exclusive economic zone,” Batongbacal said.

Vice-President Leni Robredo, who also spoke at the forum, said “China’s encroachment on Philippine territories is the most serious external threat to our country since World War II.”

“This is the time for us to peacefully protest any effort to limit movements within these waters,” she said.

On Thursday, red banners declaring the Philippines a “province of China” mysteriously appeared in various parts of Metro Manila. Batongbacal believes the antic was a form of protest against Duterte’s perceived pro-China policy.

In a survey conducted in June by Pulse Asia, a local pollster, and commissioned by Stratbase, 73% of respondents believe Duterte should assert the Philippines’ claims in the South China Sea.

Acting Supreme Court Chief Justice Antonio Carpio said the president has the “constitutional duty to conduct regular patrols” in the area. “The Filipino people would like to see security patrols periodically and regularly,” he said at the forum.

However, George Siy, director at the Integrated Development Studies Institute think tank in Manila, said Duterte’s nonconfrontational approach is working and the Philippines is reaping the fruits of an “independent foreign policy.”

“We have become a respected party all over Asia,” Siy told foreign correspondents last Tuesday. “This is a triumph that is multidimensional. We don’t have to give up anything. We use diplomacy and a strategic and long-term approach.”

Nikkei staff writer Mikhail Flores contributed to this report.

https://asia.nikkei.com/Politics/International-Relations/Duterte-under-pressure-to-press-South-China-Sea-claims

South China Sea: Albert del Rosario, Justice Antonio Carpio do not ‘fully comprehend the nature of arbitration,’ Philippine Government says

July 12, 2018

Does Philippine sovereignty matter? Is it meaningless?

Presidential Spokesperson Harry Roque says former foreign secretary Albert del Rosario and other individuals do not ‘fully comprehend the nature of arbitration’

FRIENDSHIP FORWARD. Philippine President Rodrigo Duterte and Chinese President Xi Jinping pose for a photo following a bilateral meeting at the Boao State Guesthouse on April 10, 2018. Malacañang file photo

FRIENDSHIP FORWARD. Philippine President Rodrigo Duterte and Chinese President Xi Jinping pose for a photo following a bilateral meeting at the Boao State Guesthouse on April 10, 2018. Malacañang file photo

MANILA, Philippines – Presidential Spokesperson Harry Roque said the Philippines under the Duterte administration continues to defend its rights over the West Philippine Sea even as he said there is no need to enforce the landmark ruling won by the country against China.

“I’m not sure what they mean by enforcing an arbitral decision because an arbitral decision is binding on parties thereto,” said Roque on Thursday, July 12, the 2nd anniversary of the historic Hague ruling.

DIPLOMATIC PROTEST. Acting Chief Justice Antonio Carpio and former Philippine foreign secretary Albert del Rosario urge the Duterte administration to file a diplomatic protest against China's bombers in the South China Sea. File photos by LeAnne Jazul/Rappler

Acting Chief Justice Antonio Carpio and former Philippine foreign secretary Albert del Rosario

Asked by Rappler if he means there is no need for enforcement, Roque said in a message: “Who will enforce? It’s self-executory as it’s binding on parties thereto.”

“We continue to assert our sovereignty and sovereign rights, but we have decided to move on on issues that are non-controversial,” he said in a press conference.

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He questioned the call of former foreign secretary Albert del Rosario for the Duterte administration to enforce the ruling.

“I don’t know what makes him an authority to give that view…. It clearly underscores the fact that some individuals, including the former secretary of foreign affairs, [do] not fully comprehend the nature of arbitration,” said Roque. (READ: How to enforce Hague ruling? PH lead counsel explains)

It was under Del Rosario’s watch as Department of Foreign Affairs (DFA) chief when the Philippines took China to court.

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Roque, asked why he thinks Del Rosario does not understand the nature of arbitration, said: “Because he’s calling for enforcement when clearly arbitration is binding…. Whether or not China will acknowledge it, China is bound by it because that is the nature of arbitration.”

However, China’s refusal to acknowledge the ruling, coupled with the Philippines’ decision to shelve it for later, has made the ruling ineffective in changing the situation on the ground.

Despite the ruling, China continues its military buildup in the West Philippine Sea and harassment of Filipino fishermen in areas declared by the decision as common fishing grounds. – Rappler.com

https://www.rappler.com/nation/207132-malacanang-no-need-enforce-hague-ruling

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Philippines should support freedom of navigation in South China Sea to protect own rights

July 12, 2018
In March, the French Navy announced that Floréal-class surveillance frigate Vendémiaire conducted a patrol in the South China Sea to assert French presence in the region.

French Navy, File
Audrey Morallo (philstar.com) – July 12, 2018 – 6:12pm

MANILA, Philippines — The Philippines should encourage freedom of navigation and overflight operations in the South China Sea as these could strengthen the enforcement of the historic arbitral ruling, Acting Chief Justice Antonio Carpio said on Thursday.

Carpio explained that the operations enforced the core legal effect of the 2016 ruling of the United Nations-backed tribunal.

“In effect, these operations enforce the core legal ramifications arising from the Award- that there are high seas in the South China Sea, and aroud these high seas are the exclusive economic zones belonging to the adjacent coastal states, including the EEZ (exclusive economic zone) of the Philippines in the West Philippine Sea,” Carpio said in a forum organized by the Stratbase ADR Institute in Makati City.

READ: US to continue operations in South China Sea despite China’s dissent — Pentagon chief

The acting chief justice said that China would not be able to transform the South China Sea into its mare nostrum with these operations.

Carpio said that immediately after the release of the ruling naval powers such as the US, the UK, Australia, France, Canada, India and Japan conducted their naval and aerial operations in the region.

The tribunal in the Hague invalidated in 2016 China’s expansive claim to the South China Sea, which was based on its so-called nine-dash line.

The ruling was released several weeks into Rodrigo Duterte’s presidency, and after initial uncertainty he eventually chose to back burn it to court Chinese money and investments into the country.

He has since tried to forge warmer ties with China, a stark contrast to the frosty relations between Manila and Beijing under former President Benigno Aquino III, whose government filed the case.

“Thus, effectively the president has placed in deep freeze any enforcement of the (arbitral) award by the Philippines,” Carpio said.

According to Carpio, it is the responsibility of Duterte as commander-in-chief of the Armed Forces of the Philippines to ensure that the military was conducting regular naval and aerial patrols in the country’s exclusive economic zones.

He said that the 1987 Constitution mandated the military to be the protector of the State and was mandated to secure its sovereignty and the integrity of its territory.

He also urged the Philippines to campaign among Southeast Asian nations and the US to make the building on the Scarborough Shoal their red line in the dispute.

He said that the US should treat this as a trigger for it to invoke the Philippine-US Mutual Defense Treaty which requires the countries to come to the aid of each other if it is attacked.

“I have always said that defending Philippine maritime zones in the West Philippine Sea is an intergenerational struggle,” Carpio said.

READ: France, UK sail warships in South China Sea

https://www.philstar.com/headlines/2018/07/12/1832907/philippines-should-support-freedom-navigation-south-china-sea-protect-own-rights

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

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South China Sea: Time for a different Philippine narrative on maritime dispute with China

July 7, 2018

Since the stunning victory over China in 2016, the official story has been defeatist

Soon, it will be two years since the Philippines overwhelmingly won in its maritime dispute against China. But during this time, the official narrative in the Philippines has been one with strong defeatist tones.

By Marites Dañguilan Vitug

Opinion

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From Day 1, July 12, 2016, when the international arbitral tribunal issued its decision invalidating China’s 9-dash line and clarifying the status of certain features in the South China Sea, this ruling has never been given the national attention it deserved. It has not been used as leverage in the country’s dealings with China. It has not been in the Department of Foreign Affairs’ talking points.

It has not been part of the country’s diplomatic arsenal.

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Yes, we won, officials say, but…

  • China is our source of economic deliverance. China will rebuild war-torn Marawi. China will invest heavily in the government’s “Build, Build, Build”
    program. Millions of Chinese tourists will boost our tourism industry. China is our new source of weapons.
  • China is a dear friend who, unlike the European Union, is nonchalant about the deadly drug war that has killed thousands and has led to a crushing wave of impunity.

These buts drown out the gains of July 12, 2016, weakening the Philippine position, making our country’s voice part of the chorus of approval of China in the region.

Let us not be taken by the official story. It’s time to talk about a different narrative.

Let’s go back to the story of Philippines vs. China, the historic arbitration case that reverberated in various parts of the world. As a law professor from the University of Geneva said, “July 12, 2016 is a date that will remain etched in the history of international adjudication.”

Let’s go back to the almost two decades of back-and-forth with Beijing when our diplomats asserted Philippine rights over parts of the South China Sea – only to be rebuffed with its stock response that China had “indisputable sovereignty” over this vast area.

Let’s hear from our scholars, experts, and diplomats on how to make use of our legal victory and start a national conversation on this crucial issue.

Historic case

In my new book, Rock Solid: How the Philippines won its maritime case against China, I tell the story of this victory that gave the country so much – a maritime area larger than the total land area of the Philippines, rich in resources – but has since been disregarded by the government.

First of all, the case is historic. It is the first to interpret the United Nations Convention on the Law of the Sea (Unclos) definitions of rocks, islands, and low-tide elevations; the first case to be filed by a South China Sea claimant state against China; and it is the first case to address the scope and application of the Unclos provision on protection and preservation of the environment.

This book addresses why President Benigno Aquino III took China to Court. Among others, he particularly remembered the quip of one ASEAN senior leader: “There are big countries and there are small countries. That’s the way of the world.” He mulled over this and thought that it was precisely the law that would serve as the great equalizer.

With this as anchor – the law as the great equalizer – Aquino decided, with the approval of the Cabinet, the leaders of Congress and two past presidents, to sue China.

In January 2013, the Philippines began its legal battle. It filed a “notification of statement and claim.”

More than year later, the Philippines submitted its memorial, like a plea, which reached more than 3,000 pages. It was a product of massive research in history, international law, geology, hydrography, marine biodiversity, and cartography. This included 10 volumes of annexes, which contained maps, nautical charts, expert reports, witnesses’ affidavits, historical records, and official communications.

Almost two decades of written exchanges between the Philippines and China, including notes verbale, were made public. Intelligence reports of the Navy, the Western Command of the Armed Forces, and the Department of National Defense were also submitted to the tribunal.

This was a first in the country: that diplomatic cables and intelligence documents were revealed to the public, a fascinating trove of our diplomatic history.

The Philippine story also unfolds in the transcripts of the oral hearings in The Hague which capture the essential points of the case. Paul Reichler and his team at Foley Hoag used the richly-documented diplomatic history of the Philippines-China dispute in their arguments before the tribunal.

These transcripts, the Philippine memorial, the awards (or the tribunal’s decisions) on jurisdiction and merit are accessible reading to non-lawyers like me. They can be downloaded from the website of the Permanent Court of Arbitration.

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Aftermath

Despite the stunning victory, why was the Philippines so glum about a historic ruling that was on its side? Why did it choose to bury a euphoric moment instead of using the victory to galvanize a nation?

The answer lay in the country’s new president, Rodrigo Duterte. He held a different view: his heart and mind were with China.

The Duterte government has taken a defeatist stance despite the immensity of what the Philippines had gained from the ruling. Duterte once said that the Philippines was “helpless” in the face of China’s might. For him, the choices in dealing with China were extreme, either to talk or to go to war. He has framed foreign policy in a false dichotomy.

While the story of Philippines vs. China offers hope and inspiration, it is the aftermath that offers more challenges. Rock Solid gives a few prescriptions on how to make the tribunal’s decision work, but there are definitely more ideas out there worth exploring.

Many have said that international pressure can encourage the implementation of the award – but friendly countries have to take the lead from the Philippines.

In the region, the award benefited not only the Philippines but other Southeast Asian states which have made claims to parts of the South China Sea. It was clear from the ruling, as Reichler explained, that “if China’s nine-dash line is invalid as to the Philippines, it is equally invalid to other states bordering the South China Sea like Indonesia, Malaysia, and Vietnam, and the rest of the international community.”

Making the tribunal ruling work and seeing it come to fruition, partly or fully, will take a long time, way beyond a single president’s term. It will require strategic thinking anchored on a strong sense of justice, equity, and sovereign rights. – Rappler.com

https://www.rappler.com/thought-leaders/206508-time-for-different-narrative-philippines-china-maritime-dispute

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

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Reuters

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