Posts Tagged ‘The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea’

South China Sea: One Year After The Philippines Win At The Permanent Court of Arbitration — Brilliant Statecraft or Treason?

July 12, 2017

By Ellen Tordesillas

Posted at Jul 12 2017 02:46 AM

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One of the good things that President Duterte has done was to rekindle relations with China which reached its lowest ebb during the administration of Benigno Aquino III.

Never mind that during the election campaign, he rode on the anti-China sentiments of most Filipinos fueled by the pro-American leanings of Aquino and his Foreign Secretary, Albert del Rosario.

Remember, a standard in Duterte’s campaign speech was his boast that he will ride on a jet ski to one of the islands in the disputed Spratlys and plant the Philippine flag. He would kiss the flag to dramatize his promise. Once in Malacanang, he was asked when he was going to jetski to Spratlys and he replied it was a joke. He said he didn’t even know how to swim.

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In the guise of independent foreign policy, Duterte didn’t just cozy up to China. He attacked the United States when then President Barack Obama reminded him to respect human rights amid reports of rampant killings in connection with his anti-illegal drugs campaign.

His foreign policy moves can be likened to a pendulum that swung from extreme right to extreme left. Today marks first year anniversary of the ruling of the Permanent Court of Arbitration in The Hague, Netherlands on the case filed by the Philippines against China on the latter’s activities in the disputed waters of the South China Sea.

China did not participate in the Arbitral Court proceedings.

It was a major victory for the Philippines. The Arbitral Court declared invalid China’s nine-dashed line map which covers some 85 percent of the whole South China which infringes on the economic exclusive zones of other countries namely the Philippines, Vietnam, Malaysia and Brunei.

The Arbitral Court also ruled that China’s  artificial islands – rocks that were turned into garrisons through reclamation – in the disputed South China Sea do not generate entitlements under the United Nations Convention on the Law of the Sea such as economic exclusive zone (220 nautical miles from the shore) and extended continental shelf (350 nautical miles).

As to Scarborough or Panatag Shoal, which is within the Philippine EEZ, the Arbitral Court said it’s a traditional fishing ground of Philippine, Chinese, Vietnamese and fishermen of other nationalities and should be maintained as such.

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Filipino fishermen had been denied access to the area since April 2012 after a two-month stand off between Chinese and Philippine Coastguards following arrest by a Philippine warship of Chinese fishermen in Scarborough shoal. Two Chinese ships remained even after the Aquino government withdrew its ships.

Duterte takes pride that because of his friendship with Chinese President Xi Jinping, Filipino fishermen are now allowed to fish in the area, which is being guarded by two Chinese ships.

It’s like a battered wife thankful that the husband has stopped beating her.

Duterte’s critics have scored his deference to China even  echoing  the position of China that historically South China Sea is theirs  as the name states.

In an ambush interview last April. Duterte said, “They really claim it as their own, noon pa iyan. Hindi lang talaga pumutok nang mainit. Ang nagpainit diyan iyong Amerikano. Noon pa iyan, kaya (It goes way back. The issue just did not erupt then. What triggered the conflict were the Americans. But it goes all the way back. That’s why it’s called) China Sea… sabi nga nila (they say) China Sea, historical na iyan. So hindi lang iyan pumuputok (It’s historical. The issue just had not erupted then) but this issue was the issue before so many generations ago.”

VERA Files fact-check about the name of South China Sea showed  that  South China Sea used to be called the Champa Sea, after the Cham people who established a great maritime kingdom in central Vietnam from the late 2nd to the 17th century.

That is contained in the book,  ‘The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea” by  Senior Associate Justice Antonio Carpio.

Carpio said it was the  Portuguese navigators who coined the name South China Sea.

“The ancient Malays also called this sea Laut Chidol or the South Sea, as recorded by Pigafetta in his account of Ferdinand Magellan’s circumnavigation of the world from 1519 to 1522. In Malay, which is likewise derived from the Austronesian language, laut means sea and kidol means south,” he further said.

“The ancient Chinese never called this sea the South China Sea. Their name for the sea was “Nan Hai” or the South Sea, he adds.

Reading Duterte’s blurting the Chinese line on the South China name, Ruben Carranza, former commissioner of the Presidential Commission on Good Government and now director of the Reparative Justice Program at the International Center for Transitional Justice, said “In football, that would be an ‘own goal.’

That’s when a player delivers the ball to the opponent’s goal.

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http://news.abs-cbn.com/blogs/opinions/07/11/17/opinion-ph-win-in-arbitral-court-one-year-after

Blog:www.ellentordesillas.com
E-mail:ellentordesillas@gmail.com

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 (Contains links to information about Vietnam’s renewed efforts to extract oil and gas from the sea bed)

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Dominance of the South China Sea, the Malacca Strait and the Indian Ocean would solidify China’s One Belt One Road project
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The international arbitration court in the Hague said on July 12, 2016, that China’s “nine dash line” was not recognized under international law — making the Vietnamese and Philippine claims on South China Sea islands valid and lawful.
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China’s aircraft carrier Liaoning at Hong Kong
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Winning against China

June 13, 2017

This is the final column based on Justice Antonio Carpio’s e-book The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea. I summarize here Justice Carpio’s interpretation of the decision of the arbitral tribunal in the Permanent Court of Arbitration that upheld the Philippine positions on most issues. I also share Justice Carpio’s suggestions on how the Arbitral Award can be enforced.

On the Scarborough Shoal, the Tribunal ruled that the Shoal is a high-tide elevation entitled to a 12-nautical mile territorial sea but not to a 200-NM exclusive economic zone since obviously it is not capable of human habitation. The territorial sea of Scarborough Shoal, which includes the lagoon, is however a traditional fishing ground of Filipino, Chinese, and Vietnamese fishermen. In any case, China cannot prevent Filipino fishermen from fishing in the territorial sea of Scarborough Shoal.

China claims the Scarborough Shoal because the shoal was allegedly the observation point in the South China Sea where Guo Shoujing erected in 1279 CE an astronomical observatory. This claim is belied by the fact that China had already identified Xisha (the Paracels) as the observation point when China presented its argument against Vietnam in 1980. As clearly pointed out by Carpio: “The biggest rock on Scarborough Shoal is just 1.2 meters above water at high tide, and not more than six to 10 people can stand on it.  It is physically impossible to erect, or operate, the massive astronomical observatories of Guo Shoujing on the tiny rocks of Scarborough.”

As regard the environment, the arbitral tribunal ruled that China violated its obligation under the United Nations Convention on the Law of the Sea to “protect and preserve the marine environment” when China: (a) Dredged and built islands on seven reefs;  (b)Failed to prevent its fishermen from harvesting endangered species like sea turtles, corals, and giant clams in the Spratlys and Scarborough Shoal.

Other issues raised on which the arbitral tribunal has ruled are:

China violated the exclusive right of the Philippines to its EEZ when China: (a) Interfered with fishing activities of Filipino fishermen within Philippine EEZ, including imposing a fishing moratorium within Philippine EEZ; (b) Interfered with petroleum activities of Philippine-commissioned vessels within Philippine EEZ; (c) Failed to prevent Chinese fishermen from fishing within Philippine EEZ; and (d) Constructed an artificial island and structures on an LTE (Mischief Reef) within Philippine EEZ.

China also violated its obligation not to aggravate the dispute during the arbitration when China: (a) Dredged the reefs, reclaimed and built the islands while the proceedings were ongoing, and; Destroyed the evidence of the natural condition of the geologic features at issue when China dredged and reclaimed them while the proceedings were ongoing.

Finally,  China violated its obligation to observe maritime safety when Chinese coast guard vessels crossed the path of Philippine vessels at high speed.

In conclusion, Justice Carpio suggests ways forward in the enforcement of the arbitral award, namely: (a) Enforcement of the award by the world’s naval powers with respect to freedom of navigation and overflight for military vessels and aircraft; and, (b)  Enforcement of the award by the Philippines with respect to its exclusive right to exploit the resources of its EEZ in the South China Sea.

On the first enforcement method, Justice Carpio observed that naval powers such as the United States, France and Great Britain can enforce the award by sailing and flying, and conducting military activities, in the high seas and EEZs of the South China Sea.

On the second method of enforcement, the Philippines can do several things, such as suing in a jurisdiction that ratified UNCLOS, move before the International Seabed Authority for the suspension of China’s exploration permits in the area, move before the U.N. Commission on the Limits of the Continental Shelf (CLCS) for the suspension of China’s application for an ECS in the East China Sea, can negotiate its maritime boundaries with Malaysia (EEZ and ECS) and Vietnam (ECS), applying the Arbitral Tribunal’s ruling that no geologic feature in the Spratlys generates an EEZ and that the nine-dashed line has no legal effect on maritime entitlements, can delineate its ECS from Luzon and file its claim with the CLCS, there being no legal impediment from the nine-dashed line, and the Philippine navy and coast guard vessels and aircraft can continue to patrol  Philippine EEZ in the West Philippine Sea.

As a final word, Justice Carpio emphasized that the leaders of our nation must exercise utmost deliberation, consistency, and perseverance in seeking ways to enforce what the arbitral tribunal has finally awarded to the Philippines as its own EEZ in the West Philippine Sea.  Silence or inaction is no way to go as this can be interpreted as a state’s acceptance of a factual or legal situation.

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Supreme Court Senior Associate Justice Antonio Carpio

It is fitting to end this series this week, when we celebrate Independence Day of the Philippines. There can be no real independence without securing our sovereignty.  President Duterte’s approach to foreign policy, while laudable for its independence, has been reckless on its defense of national territory. Thankfully, we have Justice Antonio Carpio to remind our leaders of what needs to be done, I reiterate what I said at the beginning of this series, Justice Tony is a hero, a defender of the country’s territory and of our Constitution. Let’s be thankful for that.

Facebook: Dean Tony La Vina Twitter: tonylavs

http://thestandard.com.ph/opinion/columns/eagle-eyes-by-tony-la-vina/239177/winning-against-china.html

Related:

(Contains links to previous related articles)

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For about five years China has been loudly proclaiming “indisputable sovereignty over the South China Sea.” China has said, everything north of the “nine dash line” shown here, essentially, belongs to China.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said China’s “nine dash line” was not recognized under international law.

China says it is vigilant as two U.S. bombers fly over South China Sea — Plus Who Lost the West Philippine Sea?

June 9, 2017

Reuters

China said on Friday it was monitoring U.S. military activities in the South China Sea, after two U.S. bombers conducted training flights over the disputed waters.

The U.S. Pacific Command said on its website that two U.S. Air Force B-1B Lancer bombers flew a 10-hour training mission from Guam over the South China Sea on Thursday, in conjunction with the Navy’s USS Sterett guided-missile destroyer.

The exercise comes after a U.S. warship in late May carried out a “maneuvering drill” within 12 nautical miles of an artificial island built up by China in the South China Sea.

The U.S. military conducts such “freedom of navigation” patrols to show China it is not entitled to territorial waters there, U.S. officials said at the time.

The latest exercise was part of Pacific Command’s “continuous bomber presence” program, but it did not give details on where it was conducted, and did not refer to it as a freedom-of-navigation operation.

“China always maintains vigilance and effective monitoring of the relevant country’s military activities in the South China Sea,” the ministry said in a statement, referring to the United States.

“China’s military will resolutely safeguard national sovereignty, security and regional peace and stability,” it said.

China claims nearly all of the South China Sea, through which about $5 trillion in ship-borne trade passes each year, a stance contested by Brunei, Malaysia, the Philippines, Taiwan and Vietnam.

The United States has criticized China’s construction of islands and build-up of military facilities there, concerned they could be used to restrict free movement and extend China’s strategic reach.

U.S. allies and partners in the region had grown anxious as the administration of U.S. President Donald Trump had held off on carrying out South China Sea operations during its first few months in office.

(Reporting by Michael Martina; Editing by Robert Birsel)

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Who lost the West Philippine Sea?

/ 12:09 AM June 06, 2017

This could be the question that will haunt us in our old age. Supreme Court Justice Antonio Carpio asked the Meet Inquirer Multimedia forum on Monday to imagine that moment, years from now, when our children and grandchildren will sit us down and ask us: “Who lost the West Philippine Sea to China?”

It is our “civic duty,” Carpio said, to raise the alarm today about the imminent loss of our territory and our waters, to forge a national consensus on what needs to be done, and to defend the West Philippine Sea.

What is at stake in the dispute with China, and in Beijing’s continuing disregard of the July 12, 2016, arbitral tribunal ruling? In his “The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea” (the e-book is available online, free of charge), Carpio added up the costs: The Philippines stands to lose “about 80 percent” of its exclusive economic zone (“including the entire Reed Bank and part of the Malampaya gas field”) and “100 percent” of its extended continental shelf (about 150,000 square kilometers of maritime space). Altogether, China’s claim to most of the South China Sea “encroaches on over 531,000 sq km of Philippine EEZ and ECS, including all the fishery, oil, gas, and mineral resources found within this vast area, which is larger than the total land area of the Philippines …” Carpio does not mince words: “This Chinese aggression is the gravest external threat to the Philippines since World War II.”

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Bill Hayton, the BBC journalist who is a leading expert on the South China Sea disputes, recently tweeted a link to a new article in the “Journal of Modern Chinese History.”

“The Origins of the South China Sea issue” is by Li Guoqiang, who is identified in the journal as “vice director of the Institute of Chinese Borderland Studies of the Chinese Academy of Social Sciences.” Perhaps not coincidentally, CASS publishes the journal.

Hayton’s one-tweet review is brutal: “Li Guoqiang demonstrating the intellectual bankruptcy of official Chinese history of the South China Sea. ‘Nonsense on stilts’.”

He points to his “favorite” among Li’s “ridiculous statements”: “For example, in 1791, British Captain Henry Spratly ‘discovered’ Mischief Reef in the Nansha Islands and named it after his German crewman Mischief.”

Set aside the mention of Mischief (the claim that the reef was named after a “German” crew member named Heribert Mischief seems dubious) or of the use of “Henry” (in fact, Captain Spratly’s name was Richard). But the man who gave his name to the Spratly Islands was born in 1802.

This ridiculousness is repeated in a propaganda website like http://www.spratlys.org (“Spratly Islands—China’s precious pearls in the South Sea!”), where the “timeline” asserts that “Captain Spratle arrived in the group and named the islands by his name” in 1791—11 years before he was born!

This is the kind of thinking that supports the aggressive Chinese posturing in the South China Sea. Just imagine if, rather than merely acknowledging Chinese military might, President Duterte’s scathing tongue were directed at this and other fallacies. Mischief abroad!

 

On Twitter: @jnery_newsstand

Read more: http://opinion.inquirer.net/104569/lost-west-philippine-sea#ixzz4jVr93U3d
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Related:

(Contains links to previous related articles)

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For about five years China has been loudly proclaiming “indisputable sovereignty over the South China Sea.” China has said, everything north of the “nine dash line” shown here, essentially, belongs to China.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said China’s “nine dash line” was not recognized under international law.

Recent developments surrounding the South China Sea

May 9, 2017

May 8, 2017

The Associated Press

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A look at recent developments in the South China Sea, where China is pitted against smaller neighbors in multiple disputes over islands, coral reefs and lagoons in waters crucial for global commerce and rich in fish and potential oil and gas reserves:

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EDITOR’S NOTE: This is a weekly look at the latest developments in the South China Sea, the location of several territorial conflicts that have raised tensions in the region.

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CHINA SHOWS NAVAL AIR EXERCISES ABOVE SEA

China’s state broadcaster has shown navy fighter bombers taking part in exercises over the South China Sea, including one involving the detection and expulsion of foreign military surveillance aircraft such as those deployed regularly in the area by the U.S. and others.

The video shown on CCTV’s military channel over the weekend shows a squadron of two-seater Xian JH-7 Flying Leopards flying in formation and dropping bombs on targets in the ocean below. Other video showed planes flying just meters (yards) above the ocean surface.

Following that, pilots were “notified that foreign aircraft had entered our airspace to conduct surveillance. One of the planes taking part in the exercise was immediately ordered by the tower to break off and intercept the foreign aircraft,” the report said.

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That plane increased its elevation and “responded effectively,” seizing the commanding position and “successfully expelling” the foreign aircraft, it said.

The report did not say when the exercise took place but said training this year was designed to be more realistic and focused on specific situations, taking the Chinese aircraft to the limits of their range and capability.

“In the process of unceasingly challenging ourselves, the building of our team of talents has entered the fast lane,” Tian Junqing, commander of an unidentified South China Sea naval air force regiment, told the station. “The overall combat capability of the force is increasing by stages, forging a formidable force that dares to fight and thunders over the South China Sea.”

Missions by U.S. Navy surveillance planes flying in international airspace off the Chinese coast are a particular bone of contention for Beijing.

Twice last year U.S. and Chinese aircraft came close, in one instance to within 15 meters (50 feet) of each other. In August 2014, a Chinese fighter jet came within 9 meters (30 feet) of a Navy P-8 Poseidon reconnaissance plane off Hainan Island — a major military hub — and carried out a series of risky maneuvers, including rolling over it.

In April 2001, a Chinese jet fighter collided with a U.S. surveillance plane over the South China Sea, leading to the death of the Chinese pilot and China’s detention of the 24 U.S. crew members for 10 days.

The U.S. and China in 2015 signed rules of behavior to make air-to-air encounters safer, but some analysts say they don’t go far enough.

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PHILIPPINE JUDGE LAUNCHES BOOK ON SEA CLAIMS

A Philippine Supreme Court justice has released a book that questions China’s historic claims to most of the South China Sea and said he will distribute it online to try to overcome China’s censorship and reach its people.

Supreme Court Senior Associate Justice Antonio Carpio said his e-book can be downloaded for free in English now and will be made available later in Mandarin, Vietnamese, Bahasa, Japanese and Spanish to help more people understand the basis of the Philippines’ stand against China’s territorial claims.

Carpio said public opinion, including in China, can help pressure Beijing to comply with an arbitration ruling last year that invalidated China’s historic claims based on a 1982 maritime treaty. Carpio helped prepare the arbitration case, which the Philippines largely won.

China has dismissed the ruling and continued to develop seven artificial islands in the South China Sea’s Spratly archipelago. China’s construction of the islands on disputed reefs has alarmed rival claimants and the United States.

In the book, titled “The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea,” Carpio uses old maps, photographs, excerpts from the arbitration ruling, Chinese government statements and documents to question the validity of China’s claims.

Carpio warns in the book that China may be planning to build more island outposts at Luconia Shoal off Malaysia and Scarborough Shoal off the northwestern Philippines.

If it constructs an island base at Scarborough, China would have enough radar coverage of the South China Sea to be able to impose an air defense identification zone similar to what it did a few years ago in the East China Sea in a region where it has a territorial dispute with Japan, he said.

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WITH AN EYE ON CHINA, TRUMP MAKES DIPLOMATIC INITATIVE TO SOUTHEAST ASIAN COUNTRIES

U.S. President Donald Trump has made an unexpected diplomatic initiative toward several Southeast Asian counterparts, telephoning Thai Prime Minister Prayuth Chan-ocha and Singapore Prime Minister Lee Hsien Loong to reaffirm traditional close relations and invite them for meetings.

The invitations extended last week followed another one to Philippine President Rodrigo Duterte in a call during which Trump also affirmed America’s alliance and friendship with the Philippines and its president, who has maintained an antagonistic stance toward U.S. security policies.

Prayuth’s office said he had accepted Trump’s invitation, while a Singapore Foreign Ministry statement said the two leaders “looked forward to meeting each other soon.” No dates were mentioned for the visits.

Duterte said he has not accepted the invitation because of scheduled trips to Russia, Israel and other countries.

Washington’s diplomacy in Asia has focused recently on China and tensions with North Korea, although Vice President Mike Pence included Indonesia on a recent Asia tour.

Washington has strategic concerns in countering Chinese influence in Southeast Asia. Thailand, Singapore and the Philippines are historically the most pro-Western nations in the region, but China’s influence has been increasing as it flexes its economic muscle and projects its military power into the South China Sea.

China and the Philippines, along with Brunei, Malaysia, Vietnam and Taiwan have overlapping claims to parts or all of the South China Sea that straddle busy sea lanes and are believed to be atop undersea deposits of oil and gas.

Prayuth’s office said he and Trump reaffirmed the importance of their countries’ long-standing alliance. It also said Prayuth invited Trump to visit Thailand at a convenient time.

The White House statement about the call to Lee mentioned that “robust security cooperation and close collaboration on regional and global challenges” mark the two countries’ partnership.

Chinese President Xi Jinping also spoke by phone last week with Duterte, reflecting radically improved relations between the two governments. China’s official Xinhua News Agency quoted Xi as saying the Philippines and China are deepening political mutual trust, carrying out cooperation in various fields, and have set up a channel of dialogue and consultation on the South China Sea.

Philippine President Rodrigo Duterte (C) returns a salute from a Chinese naval officer (L) as Philippine Defence Secretary Delfin Lorenzana (R) looks on during Duterte’s arrival to visit the guided missile frigate Changchun berthed at the Davao international port on May 1, 2017. Philippine President Rodrigo Duterte on May 1 visited Chinese warships docked in his home town and raised the prospect of future joint exercises, highlighting fast-warming relations despite competing claims in the South China Sea. Manman Dejeto/AFP

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Associated Press writers Jim Gomez in Manila, Philippines, and Grant Peck in Bangkok contributed to this report.

Related:

 (Judge Carpio’s book)

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Seismic research vessel of the type typically used by China before mining the sea bed

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For about five years China has been loudly proclaiming “indisputable sovereignty over the South China Sea.” China has said, everything north of the “nine dash line” shown here, essentially, belongs to China.  On July 12, 2016, the Permanent Court of Arbitration in The Hague said this claim by China was not valid. But China chose to ignore international law and nobody has even complained.