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Why the Philippines will bring the South China Sea conflict to the UN

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The Philippine Department of Foreign Affairs has just released the following to explain to Filipinos its actions on the South China Sea (West Philippine Sea) conflict. To the Philippines, “China is a good friend. Arbitration is a peaceful and amicable process to settle a dispute between and among friends. “

Q & A on the UNCLOS Arbitral Proceedings against China to Achieve a Peaceful and Durable Solution to the Dispute in the West Philippine Sea

1.Why are we bringing China to an arbitral tribunal?

China’s 9-dash line claim encompasses practically the entire West Philippine Sea (WPS). We must challenge the unlawful claim of China under their 9-dash line in order to protect our national territory and maritime domain.

2.Why do we have to do this now?

Having exhausted all possible initiatives, we feel the time to act is now. If we do not act now, we will be in default.

3.What is the basis of our legal action?

The legal action is pursuant to the President’s constitutional mandate to pursue the national interest and defend the Philippine territory and maritime domain. It also pursues the policy of a rules-based approach based on international law, especially UNCLOS, in resolving the disputes in the WPS.

4.What do we expect from this arbitral tribunal?

We hope that the arbitral tribunal will issue an award in accordance with international law that will direct China to respect our sovereign rights and jurisdiction over our EEZ, continental shelf, contiguous zone, and territorial sea over the West Philippine Sea, and to desist from undertaking unlawful acts that violate our rights.

5.What is the process of arbitration?
Under Annex VII of UNCLOS, the arbitration process begins by notifying the other party to the dispute and giving a statement of facts on which the notification is based.

In accordance with this process, the Philippines through the DFA handed the Note Verbale to the Chinese Ambassador in Manila in the afternoon of 22 January 2013 notifying China that the Philippines is bringing the dispute in the WPS before an arbitral tribunal under Annex VII of UNCLOS.

The next step is to form the 5-member arbitration panel. When the panel is formed, the parties will present their documents to further explain their case.

6.Is the legal track the only option?

We have adopted three tracks in terms of the political, diplomatic and legal approaches. At this stage, the legal track presents the most durable option to defend the national interest and territory on the basis of international law.

7.Who filed the case and where?

The Philippines filed the arbitration case against China. The parties will have to agree on the place where the arbitral tribunal will hold the hearing of the case.

Under UNCLOS, Parties to a dispute have the choice on where to file the case, either in the International Court of Justice, ITLOS, arbitral tribunal and special arbitral tribunal. The Philippines chose to bring this case before the arbitral tribunal because it believes it is the appropriate body to hear the complaint of the Philippines against China.

8.How long will the arbitration process last?

Based on the cases so far handled by international tribunals on maritime disputes, the case would take 3-4 years.

9.Will we win our case?

We believe we have a very good case under international law. In any legal action, however, there are many different factors to consider. What is more important is that we are able to present our case against China and defend our national interest and maritime domain before an independent international tribunal. We expect international law to be the great equalizer.

10.Who are the members of the PH legal team?

Solicitor General Francis H. Jardeleza is the agent or the legal representative of the Philippines in this arbitration case. Mr. Paul Reichler of the Washington law firm Foley and Hoag is the lead counsel.

11.Why are the other countries not filing a case against China?

The Philippines is taking action based on its national interest and not on the actions or non-action of other countries.

12.What if China refuses to participate in the arbitration?

The Philippines will pursue the procedures and remedies available under Annex VII of UNCLOS to achieve the award outlined in the Statement of Claim.

Annex VII of UNCLOS provides for compulsory proceedings with binding decision.

13.What’s next for the Philippines?

The Philippines will now prepare for the formation of the 5-member arbitration panel and agree on the venue.

14.Do you have the support of the other branches of the government?

Yes, all the three branches of the Philippine Government support the President’s decision to bring the dispute in the West Philippine Sea before the UNCLOS arbitral tribunal.

15.What will be the effects on Philippines-China economic relations?
As arbitration is friendly and peaceful, we hope that there will be no adverse effects on our trade with China. President Aquino and President Hu Jintao agreed that the bilateral agenda will be moved forward while contentious issues will be abstracted for separate treatment.

We are all for improving our economic relations with China but it should not be at the expense of surrendering our national sovereignty.

16.What will be the effects on tourism?

The Philippines and China have an incredible people-to-people engagement. We look forward to enhance it through an effective tourism program.

17.What will happen to our OFWs who may be affected by this action?

The Philippine Government will provide the appropriate safety net for the OFWs.

18.Did the US and Japan influence your decision to take this action?

No. The Philippines is taking this action independently.

19.What are the opinions of the different sectors in Philippine society?

While there are varied opinions on the dispute, nevertheless, all Filipinos should unite to support the President’s constitutional mandate to protect Philippine territory and national interest.

20. Will this result into a military conflict?

China is a good friend. Arbitration is a peaceful and amicable process to settle a dispute between and among friends.

21.What will happen to PH-China relations?

We will continue to pursue an enhancement of our bilateral relations in all areas of cooperation.

22.Would this action affect ASEAN?

We are counting on ASEAN to support us in finding a peaceful and durable solution to the dispute. The Philippines must protect its own national interest in this regional forum as well as in other fora in order to enhance the respect of our international partners who support our cause.

23.Would discussions on the Code of Conduct (CoC) continue?

Yes, the Philippines will continue to work with ASEAN and China in crafting the Code of Conduct and implement the commitments of ASEAN Member States and China in the Declaration on the Conduct of Parties in the South China Sea (DOC).

24.Why can we not do joint development with China?

Joint development, following the Chinese model, is a violation of the Philippine Constitution. Joint development should be in accordance with Philippine law.

25.How much will this cost the Filipino people?

One cannot put a price in the concerted effort of the Filipino people and government in defending our patrimony, territory, national interest and national honor.

26.Why should the Filipinos support this action?

If someone forces himself into your house and tries to unlawfully take away what belongs to you, should you not take action against the intruder? Our action is in defense of our national territory and maritime domain.

27.How can all Filipinos help in promoting a positive result of this legal initiative?

All Filipinos should stand behind the President to defend what is ours in accordance with the Philippine Constitution. We should all firmly demonstrate our patriotism. We should all stand united as one before the whole world to manifest the President’s leadership on this issue.

Comments

  1. Sea tribunal names judge to PH arbitration case vs China over Spratlys area

    By Tarra Quismundo
    Philippine Daily Inquirer
    9:04 pm | Monday, March 25th, 2013

    MANILA, Philippines — The Philippines’ arbitration case against China has moved a step forward after the president of the International Tribunal for the Law of the Sea (Itlos) appointed the second member of the ad hoc tribunal that would deliberate on the country’s bid to stop Chinese incursions into the West Philippine Sea (South China Sea).

    The Department of Foreign Affairs (DFA) confirmed on Monday that the Itlos president, Judge Shunji Yanai, appointed Polish Itlos Judge Stanislaw Pawlak to the panel last week, leaving only three more slots to be filled in the tribunal.

    Pawlak will join the panel with German Judge Rudiger Wolfrum, the arbiter appointed by the Philippines when it announced its arbitration bid in January.

    The Polish judge’s appointment is the first for Yanai, who took on the task of composing the arbitral panel after China announced its rejection of the proceedings.

    Under the United Nations Convention on the Law of the Sea (Unclos), the international law the Philippines invoked in seeking arbitration, the Itlos president has the power to appoint members of the panel in case one party refuses to take part in the proceedings.

    China waived its right to name its representatives to the ad hoc panel upon formally announcing its rejection of the proceedings.

    “The next step will be for the Itlos president to appoint the other three members of the arbitral tribunal upon the written request of the Philippines,” DFA spokesperson Assistant Secretary Raul Hernandez told a briefing on Monday.

    He reiterated that the arbitration would be a peaceful process to settle disputes in the contested waters.

    “We stress that arbitration is a peaceful and durable form of dispute settlement pursuant to international law,” said Hernandez.

    The Philippines went to the UN in January in hopes of halting Chinese incursions into the West Philippine Sea and nullifying China’s nine-dash line, which encroaches into established Philippine maritime boundaries.

    The DFA had contended that the nine-dash line was an “excessive claim in violation of international law, the Unclos.” Both countries ratified the international law but disagreed on interpreting its letter, particularly on the matter of maritime boundaries.

    The move specifically seeks to stop the Chinese occupation and construction on smaller islands in the West Philippine Sea that are claimed by the Philippines and hopes to compel the Chinese to respect the Philippines’ exclusive economic zone and continental shelf.

    The DFA had said it took the legal action after exhausting all other means to peacefully settle the dispute.

    But China rejected the Philippines’ move citing “indisputable sovereignty” over resource-rich territories in the West Philippine Sea and asserted that the issue should be resolved through direct negotiations between the two countries.

    While impartial on the merits of the case, several countries have expressed support for the Philippines’ decision to take a peaceful step toward resolving the dispute, among them, the United States and Germany. The United Nations also took the same position.

    Japan, which has its own territorial dispute with China over islands in the East China Sea, said the Philippines’ move was “understandable.”

    “I think it’s understandable, the solution that [the Philippines is] seeking… they are not using force and they are trying to find the peaceful solution under the rule of law. So in that sense we totally understand the Philippine action,” said Japanese Ambassador to the Philippines Toshinao Urabe in a recent interview.

    “We’re just waiting for what’s going to happen. So we totally understand the action, but we’re not taking sides,” he said.

    The envoy happens to know the Itlos president, a compatriot, and remarked that the judge would be fair in handling the arbitration case against China despite its dispute with Japan.

    “It doesn’t matter [that the Itlos president is Japanese]. It’s under the rule of law. And I know him. He’s a very impartial person, a very understanding person and I don’t think he will use his position to advance the national interest,” Urabe said.

    SOURCE: http://globalnation.inquirer.net/70257/itlos-names-judge-to-ph-arbitration-case-vs-china-over-spratlys-area

    Reply

  3. @CPMers

    Winning and losing territories.

    The United Nations has approved the Philippines’ claim to Benham Rise, “we own Benham Rise now”

    DID YOU KNOW THAT LAST YEAR, THE UNITED NATIONS APPROVED THE PHILIPPINES ‘ TERRITORIAL CLAIM TO BENHAM RISE WHICH IS POTENTIALLY RICH IN MINERAL AND NATURAL GAS DEPOSITS?

    We cannot and should not lose the West Philippine sea.

    Reply

    • Thank you for the link. Very interesting reading, and encouraging. It rebuts those who claim the filing with the UN is wasted energy. It shows that the Philippines has taken the lead to break down China’s divide and conquer strategy. More credit to President Aquino.

      Reply

  6. If UN checks the validity regarding chinas claim of senkaku island then it should also check the claim of the Philippines to kalayaan group of islands and scarborough shoal.

    http://www.gmanetwork.com/news/story/291910/news/world/un-to-look-into-validity-of-china-s-claim-over-islands-in-dispute-with-japan

    If china submits itself to tribunal against japan then it should do the same to Phillipines regarding the 9 dash “theory”.

    This will test the credibility of UN unless they allow double-standard in international laws. :)

    Reply

  9. Bravo Prez Noy, whatever the outcome, it is a great act
    to let them know that what what China is claiming does not belong to them.
    Bulag ba sila, mismo mga righteous chinese people WILL DISAGREE if they will
    see that the Philippines is the NEAREST to these ROCKS, somehow
    not all of the chinese really support the communism of china, maybe the chinese
    freedom lover will use this sort of crumpled relations as an oppurtunity to
    re-continue what they wanted he he he he FREEDOM

    We need to be positive kahit walang yaman yun mga bato na yun he he he, if there are riches
    lalo dapat ipaglaban he he he tresspassing mga wakanga he he he

    wag lang daanin sa nuclear war, may panalo tayo he he he he lalo na sa cyber war ala silang panalo
    di naman natutulog mga henyo natin sa computer he he he Pinoy blood will always be on top kahit na
    sa Japan or down under pinanganak or lumaki, mga pinoy sa USofA or Europe he he he aatake rin yan he he he

    Reply

  11. First i want to commend Pnoy administration and Sec. Del Rosario for having HUGE BALLS for fighting for our sovereign rights and territory in the most peaceful way possible to date.

    Second Im glad that we took this approach to settle the territorial problem since it will expose both China and UN on this issue.

    a. China will have to prove the 9 dash theory once and for all with facts and evidence. The irony of it is that Philippines challenge is not only for our countries benefit but in hindsight it will also benefit our silent brothers in ASEAN (vietnam,malaysia,brunei) claimants.

    b. Expose UN if it really has the mandate to enforce and arbitrate regarding the laws that it established like UNCLOS.

    And if UN’s answer is no we cant arbitrate regarding the dispute, then it will expose them that all the laws they touted around the world are pretty much useless.

    Reply

      • Salamat po :)

        Let me also add another angle regarding the dispute.

        Remember the time when enrile-trillanes have a heated debate in senate and when enrile became to personal, trillanes walked-out of the senate floor.

        Until today JPE never the answered the questions trillanes asked. Enrile waived a paper with red marking “CONFIDENTIAL” allegedly letter that came from sonia brady (former ambassador to china).

        While the Palace and DFA said it never got a copy regarding the confidential papers JPE had. The thing that troubles me is that Sonia Brady reported directly to JPE and not the President of the Phillipines nor the DFA Secretary.

        If China’s Vice Minister for Foreign Affairs Fu Ying and Chinese Ambassador to Manila Ma Keqing can approach the senate President of the Philippines easily shown in this 2012 photo (after the heated debate with trillanes)

        http://www.gmanetwork.com/news/photo/26696/chinese-officials-visit-enrile

        Then i think JPE should also explain to every Filipino what they (chinese representatives) have talked about in closed doors.

        Reply

  12. Now that we want an ARBITRATION COMMITTEE to handle the ISSUE/PROBLEM at South Philippine Sea , if ever CHINA will submit to the procedures and rulings of the committee ,we have to expect some AWARDS to be favorable, unfavorable and disadvantageous to us.

    All discussions will be supported by MAPs showing those contested islands/shoal/rocks including each COORDINATEs ( azimuth,bearing and distances ) and KEY DATEs of occupation , construction of FORTRESS if any and incorporation to each COUNTRYs mainland.

    MISCHIEF REEFs was within our EEZ ( 130miles nearer than 200miles ) heavily fortified/armed by CHINA since 1994 .

    Scarborough Shoal also within our EEZ ( 137miles nearer than 200miles ) Philippine flag and Chinese marker were planted on the area.

    Sovereignty lies or effective if we can exercise political and territorial jurisdiction to an area.So that the best we should have done to the TWO areas was to include or incorporated them at MAINLAND PHILIPPINEs using the Archipelagic Base Line Doctrine of UNCLOS. We were given our chance but DECIDED to declare the TWO areas only REGIME of ISLANDs even though we knew very well that they were WITHIN the EEZ of PHIL… … HOW ca we exercise political and territorial sovereignty to an ISLAND which have no INHABITANT on it.

    Observe now MISCHIEF REEFs………inhabited by Chinese Navies with the construction of at least 5 stories FORTRESS ( heavily armed ), who is now exercising sovereignty on it?

    I want the Philippoines to re-acquire those areas legally and technically , I said technically because we will be encountering here MORE on MEASUREMENTS and AWARDS if any will be given to us with exact MEASURENENTs.

    The declaration of the TWO areas only into REGIME of ISLANDs WEAKENS our claims especially if we apply the meaning of Regime of Island under UNCLOS.

    Reply

    • China if ever submit themselves to an ARBITRATION ,..they will COMPROMISE for ” China’s better end ” .

      They also knew that owning the Spratly’s alone ,with an intertwined , crisscrossed EEZ and territorial waters on and claimed by almost all ASEAN nations , will be impossible for them to acquire ALL so as UN to rule on their favor. The most they wanted in the Arbitration Committee is a COMPROMISE to gain the FURTHEST DISTANCE from China’s mainland/shrelines.

      It will be golden award for China if they get MISCHIEF REEFs and diamond award if it includes Scarborough Shoal . It lessens our EEZ and other sea areas we used to owned and dominate.

      I still wondered why RAMOS did not go to UN before while his Army in Palawan were monitoring weekly taking pictures on Mischief Reefs while China were building their FORTRESS thereat.

      Reply

  13. “We’re small. It doesn’t mean we’re helpless.” — Barbie Thumbelina

    Can’t resist quoting this cos it’s so true.

    Reply

  14. All Filipinos wherever they may be, including all departments of the government, the political opposition and Filipino-Chinese, must give unequivocal support to the President in regards to foreign affairs. In particular the Filipino-Chinese community must embrace the foreign affairs policy of the Philippine government without any mental reservation of whether the policy is right or wrong. Pure Filipinos, meaning those with Philippine citizenship only, have no choice but to follow. However, those with dual citizenship must choose where their allegiance lie. If these category of Filipinos could not totally support PNoy’s position vis-a-vis China, they have to leave our country and live where their loyalty is until the issue is settled.

    Reply

  15. What if UN and other organizations agreed that Scarborough (Spratly) legally belong to the Philippines and China don’t agree and obey the ruling. What’s next.
    I am sure China is not stupid starting WWIII. Doomsday for all.

    Reply

    • China Irks Neighbors as Tensions Rise in South China Sea
      http://www.youtube.com/watch?v=YmNqFn3houQ&feature=player_embedded
      Tensions in the South China Sea over territorial disputes are rising once again with China clashing with Vietnam and the Philippines recently. The disputes come as the United States and ASEAN try to help those with claims in the resource rich waters resolve their differences through dialogue and avoid the use of force or threats. VOA’s William Ide has more.

      Reply

      • Ooiii, are you ready for this saga?

        Ang Han ay tumataas ang kilay, at ini-ihian na ang mga bansang dating tumulong sa kaniya nuong mga panahon ng kalamidad at kagutuman nila.

        Hindi pa nau-upo si Xi at barkada, ipina pahamak na ng mga hawkish ang susunod na liderato.

        Anu kaya ang contingency ni PNoy at sambayanang nakaka-alam? Stay the course of diplomacy. Tignan natin ang pasok ni Xi at barkada niya sa marso kung anu ang kalibre nila.

        Sa UN? Iisnabin ni Han. Sila naman ngayon ang papapel sa Security Council.

        Reply

        • Xi Jinping Formally Elected President Of China By National Legislature

          By GILLIAN WONG 03/13/13 11:49 PM ET EDT

          BEIJING — China’s new leader Xi Jinping capped his rise to the top Thursday by adding the largely ceremonial title of president, though he will need more time and cautious maneuvering to consolidate his power and build support from a public that is increasingly clamoring for change.

          The elevation of Xi to the presidency by the rubberstamp national legislature gave him the last of the three titles held by his predecessor, Hu Jintao. The move was expected after Xi was named head of the Communist Party and chairman of its military, positions of true power, last November in a once-a-decade handover to a new group of leaders that has been years in the making.

          Despite being formally in charge, it will be within the party’s top ranks – in which powerful people are often divided by patronage, ideology or financial interests – that Xi will find the biggest challenges.

          This will be doubly so if he follows through on his pledge to tackle the endemic graft he has pinpointed as detrimental to the party’s survival, said Willy Lam, a China politics watcher at the Chinese University of Hong Kong. Graft is deeply ingrained in the party’s patronage-based culture and those at the top – many of whose families have benefited from their political connections – are believed to be most resistant to anti-corruption measures that diminish their prerogatives.

          “He has to walk a fine line,” Lam said. “If he were really serious about going after senior cadres, he might establish his authority within the rank and file, however, that would also jeopardize his relationship with the power blocs and with the holders of vested interests.”

          Xi’s accession marks only the second orderly transfer of power in more than six decades of communist rule. He was the only candidate for president in Thursday’s vote. Delegates to the country’s figurehead parliament, the National People’s Congress, voted 2,952-to-1 for Xi in balloting that amounts to a political ritual echoing the decisions of the party leadership. Three delegates abstained.

          Named vice president in a vote of 2,839-80 was Li Yuanchao, a liberal-minded reformer and a close ally for decades of Hu. The move breaks with the practice of recent years, because Li is not in the party’s seven-member ruling inner sanctum, but is seen as a concession to Hu’s lingering influence and as a reward to a capable if not wholly popular official.

          Xi takes charge at a time when the public is looking for leadership that can address sputtering economic growth and mounting anger over widespread graft, high-handed officialdom and increasing unfairness. A growth-at-all-costs model that defined the outgoing administration’s era has befouled the country’s air, waterways and soil, adding another serious threat to social stability.

          Underlying public unhappiness with the party is a deficit in trust.

          “At present, the party and the government have very little public credibility,” said Zhang Ming, a China politics expert at the prestigious Renmin University in Beijing. “The way to regain credibility is to at least show some results, but at this point that can’t be seen and I predict there won’t be any real results later.”

          Source: http://www.huffingtonpost.com/2013/03/14/xi-jinping-china-president_n_2872404.html

          Reply

        • PROFILE | Who is China’s new president?

          By: Carol Huang, Agence France-Presse
          March 14, 2013 12:08 PM

          BEIJING – The new president of China’s 1.35 billion people is a relaxed, affable contrast to his stiff predecessors — but whether there will be an accompanying change of substance remains to be seen.

          Xi Jinping’s first months in power as head of the ruling Communist Party have shown a “new style, but short on delivery so far,” said Jean-Pierre Cabestan of Baptist University of Hong Kong, describing him as “old wine in a new bottle.”

          The 59-year-old is the first Chinese leader to have been born after the Communists took power in 1949, and is one of the party’s “princelings” — the privileged offspring of those who played key roles in the revolution.

          Xi was named head of state by the rubber-stamp national parliament on Thursday. But he became China’s de-facto supremo in November, when he was elevated to lead the all-powerful Communist Party.

          Since then, a barrage of official propaganda has promised reforms on issues ranging from pollution to corruption, while Xi and others have made high-profile tours of poverty-stricken villages.

          Warning that corruption could “kill the party,” Xi threatened in January to target not only lowly “flies” but also top-ranking “tigers.”

          An investigation by US news agency Bloomberg last year, however, found that Xi’s relatives had amassed hundreds of millions of dollars in assets, hinting at the challenge of implementing reforms that might threaten the business interests of powerful families.

          To underscore a commitment to economic reforms, Xi chose the southern city of Shenzhen, where China launched its modernization drive three decades ago, for his first official visit as party leader.

          But any desire for fundamental reforms is likely to be tempered by the overriding fear that drastic change could weaken party control.

          Xi reportedly warned officials during his southern trip against letting the party unravel as the Soviet Union did, saying that Gorbachev-style reforms could undermine Communist control.

          He rose to the top of the secretive party by serving as a compromise pick able to navigate between competing factions, including those of outgoing leader Hu Jintao and the influential former president Jiang Zemin.

          Xi has an impeccable political pedigree as the son of a revolutionary hero, and has a pop star wife, Peng Liyuan, who holds the rank of army general and starred in state broadcaster CCTV New Year’s gala for years.

          But his father Xi Zhongxun, a respected Communist elder, was purged during the 1966-76 Cultural Revolution, and Xi himself was sent to the Chinese countryside to live and work alongside peasants, as were many educated youths.

          Xi joined the Communist Party while laboring in the poor northern province of Shaanxi and in 1975 moved to Beijing to study at the prestigious Tsinghua University, earning a degree in chemical engineering.

          He went on to oversee some of China’s most economically dynamic areas, including Fujian and Zhejiang provinces and Shanghai, earning himself a reputation as a proponent of economic reforms and an effective manager.

          He created a stir during a 2009 speech in Mexico by scoffing at “foreigners with full bellies and nothing to do but criticize our affairs” — many Chinese harbor resentment against the West — but he has unusually longstanding US links for a Chinese leader.

          As part of a research trip in 1985 he spent time in Iowa, deep in the farming heartland of the Midwest, and paid his host family a return visit last year, while his daughter Xi Mingze studied at Harvard under a pseudonym.

          A diplomatic cable released on WikiLeaks recounted a 2007 conversation between Clark Randt, the then US ambassador to China, and Xi that revealed the future president as a big fan of US films on World War II.

          He told Randt that he “tremendously enjoyed” the 1998 Steven Spielberg war epic “Saving Private Ryan,” the cable said, adding that Xi noted: “Americans have a clear outlook on values and clearly demarcate between good and evil. In American movies, good usually prevails.”

          The cables described Xi as pragmatic yet ambitious, willing to tilt with the political winds to get ahead.

          They said he was uncorrupted by money yet with a sense of political entitlement, feeling that fellow “princelings” like him “deserve to rule China.”

          As of Thursday, he fulfills his destiny. But like all incoming Chinese leaders he will need to consolidate power, and whatever his personal beliefs, few expect him to stray far from the Communist template of gradually opening the economy while maintaining tight political control.

          Cabestan added: “Frankly I don’t see him as a reformer.”

          Source: http://www.interaksyon.com/article/57094/profile–who-is-chinas-new-president

          Reply

  17. I commend President Aquino and our Department of Foreign Affairs for taking this action of bringing this case to the UN (unlike the previous administration who tried to make secret deals with the Chinese). It may take three to four years but it will also serve notice to the rest of the world that we are not going to allow ourselves to be buillied by the big, bad Chinese. And we are being represented by a high-powered Washington DC Law firm.

    Reply

  18. How could we force China to come into a arbitration tribunal where in fact China has already declared that;

    “The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”

    Here’s what;

    ANNEX VII. ARBITRATION

    Article 1

    Institution of proceedings

    Subject to the provisions of Part XV, any party to a dispute may submit the dispute to the arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a statement of the claim and the grounds on which it is based.

    The Philippines signed a contract with a law firm Foley and Hoag that will represent our interest in the arbitration proceeding. Now we’re into a bind and we have to pay this law firm for a process that will take according to Raissa 3 to 4yrs.

    While the process is on going China have a free hand exploiting our natural resources in the area because we have to abide with the contract of the law firm.

    Granting that the tribunal will award us by default how could we force China to accept the decision of the tribunal. Still we have to pay the arbitration tribunal supposedly 50-50 in accordance with arbitral tribunal provision.

    Reply

    • Your point above is supported by the table in the UNCLOS website, found below:

      un.org/Depts/los/settlement_of_disputes/choice_procedure.htm (Three w’s in front please).

      The pertinent provision states:

      Article 287
      Choice of procedure

      1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:

      (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
      (b) the International Court of Justice;
      (c) an arbitral tribunal constituted in accordance with Annex VII;
      (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.

      In the table, China did not choose any mode of procedure.

      Ironically, its citizen, Zhiguo Gao is a member of the ITLOS (section a above).

      In international disputes, whether before the ICJ or the ITLOS, the parties voluntarily submit to the jurisdiction of the court. The court cannot summon the parties, because all sister (or brother) countries are equal. The international courts cannot be above the parties. This is unlike the domestic courts, and citizens, where the court, as the voice of the law, can summon the citizens, because no citizen is above the law.

      That is why we were never able to assert the Sabah claim before the ICJ, because Malaysia would not accede to ICJ jurisdiction over the matter.

      There seems to be a problem here. We challenged the other party to a boxing match, but it did not show up. So do we shadow box?

      Reply

    • Not the freedom lover of China, those who claimed that are the communist lider of china he he he

      do you know how how chinese were killed if they oppose the government? Freedom lover dont love china, it is a proof of chinese people residing in our country and everywhere in the World…

      Reply

  19. There really is no other alternative other than bring our case to UNCLOS. I hate to be pessimistic about this but we all know what China’s response will be. They’ve said it once that they will not agree to the issue of the WPS being brought to the UNCLOS.
    Looking at the good side, bringing our case to the UNCLOS is a far better thing than rattling our puny sword against our bullying neighbor. Somehow, this will tone things down and make our relations with China to a more manageable level, hopefully a level equal to our pre-WPS days.

    Reply

  20. Not a good sign for OFWs in China like me. “Friendly and peaceful approach”? These words are not in the vocabulary of the Communist Party and People’s Liberation Army. Filipino patriotism will be met with Chinese jingoism. Trust me. I’ve seen it with my own eyes. Heard about what some Chinese people did to Japanese shops in China last year? Only God knows what they’ll do to FIlipino’s living in China. It’s good to know that the Philippines is standing up to protect her territory. I just hope the Philippine government is not thinking that we, OFWs in China, are expendables.

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  21. Here’s an interesting article by a certain guy named Allen of Hidden Harmonies China Blog.

    Philippines, China, UNCLOS and the South China Seas

    April 17th, 2012 Allen

    Recently, we hear a growing chorus how the China – Philippines dispute in the South China Seas ought to be settled by binding arbitration under the United Nations Convention on the Law of the Sea (UNCLOS). We already have dealt with some of the political dimensions of this (see, e.g., our South China Seas tag), and I won’t rehash them here. But I do want to bring up a couple of points that seem lost in the current fray.

    While UNCLOS does allow nations to claim Exclusive economic zones (EEZs) that extend 200 nautical miles out from a nation’s territorial sea, the UNCLOS is not the basis of the dispute between China and the Philippines.

    One way to view the dispute is as a dispute over maritime boundary. Since the South China Seas is populated with hundreds of islands and rocks, the question is how to disentangle the overlapping claims to the seas arising from the various claims to the islands. This would clearly be a dispute involving UNCLOS.

    The problem with this analysis is that China and the Philippines do not even agree over which islands and/or rocks belong to whom. The UNCLOS might be the appropriate forum to assess extent of various claims over the seas when there exists clearly delineated and accepted claims to land territories, but when it comes to disputes over actual claims over land (islands or rocks), there is little that the UNCLOS provides.

    Another problem with appealing to the UNCLOS is that the the UNCLOS is really a red herring, as far as the South China Seas and China and the Philippines are concerned.

    Under International Law, nations generally have the right to ratify treaties in parts – by ratifying treaties with reservations. This is the case with UNCLOS. Neither China nor the Philippines ratified the UNCLOS in full. In fact, few of nations that ratified the UNCLOS did so without some sorts of qualifying statements or declarations (see UNCLOS delcarations and statements upon ratification).

    The Philippines ratified the UNCLOS under these terms:
    Understanding made upon signature (10 December 1982) and confirmed upon ratification (8 May 1984)

    1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines.

    2. Such signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of 10 December 1898, and the Treaty of Washington between the United States of America and Great Britain of 2 January 1930.

    3. Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defence Treaty between the Philippines and the United States of America of 30 August 1951 and its related interpretative instruments; nor those under any other pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party.

    4. Such signing shall not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto.

    5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or Proclamation of the Republic of the Philippines; the Government of the Republic of the Philippines maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippines Constitution.

    6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence and security.

    7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.

    8. The agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under article 298 shall not be considered as a derogation of Philippines sovereignty.

    In other words, Philippines subscribes to the UNCLOS to the extent it does not impair Philippine claim to sovereignty in the South China Sea.

    China ratified the UNCLOS under these terms:
    Upon ratification (7 June 1996)

    In accordance with the decision of the Standing Committee of the Eighth National People’s Congress of the People’s Republic of China at its nineteenth session, the President of the People’s Republic of China has hereby ratified the United Nations Convention on the Law of the Sea of 10 December 1982 and at the same time made the following statement:

    1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.

    2. The People’s Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.

    3. The People’s Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.

    4. The People’s Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State.

    Declaration made after ratification (25 August 2006)

    Declaration under article 298:

    The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.

    Thus China ratifies the UNCLOS to the extent it does not impinge upon its sovereign claims to all the islands and regions of South China Seas. Also while China will negotiate with all neighbors with which it has territorial disputes on grounds of equity and respect, it does not submit to Article 298 arbitration as provided under the UNCLOS.

    Article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone claims under Chinese sovereignty all territorial land and seas where:

    The PRC’s territorial sea refers to the waters adjacent to its territorial land.

    The PRC’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China.

    Given the above, it is quite funny that the Philippines has referred its dispute with China to the International Tribunal on the Law of the Sea. Legally, the disputes do not come under the UNCLOS – from either the Philippines or Chinese side. Philippines can’t make a long laundry list of reservations to protect its stakes and yet want to have its cake too by trying to bind China by imagined laws…

    This is a political issue that deserves a diplomatic solution. China claims South China Seas based on history. It’s ironic to see today Philippines “hosting” French archeologists to study sunken Chinese ships inits alleged territorial waters. 4 I hope the Philippine side will understand the depth of Chinese claims and come to the table with a more sincere spirit, instead of playing legal games and trying to distract from the real work that needs to be done.

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    • @clementejak , Interesting recitation. What is the “real work that needs to be done” in your opinion? I can see taking steps like shutting down Chinese mining, or other economic punishments that would meet reciprocity in China. I think China loses that game, though, net sum.

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    • Now the issue is of utmost interest. I am at first here in complicated situation here with the declarations or ratifications by both the Philippines and China on UNCLOS. Very interesting I say. Thanks to you @clementejack.

      China ratified the UNCLOSE under this term –

      “2. The People’s Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.”

      The word China used “equitability” surely comes from the word “equitably.” It means: in an equitable manner, or according to principles of equity.

      What does the word “equity” mean? Acceptable meanings: fairness. Impartiality. Justice. Latin word – aequitas, equality. In law, equity means “resort to general principles of fairness and justice whenever existing law is inadequate.

      Then China meant ‘Principles of equity.’ How or why it used the word ‘equitability’ China clearly meant equity or equitable. Whatever China’s understanding of ‘equitability’ it understands ‘equity’ or ‘equitably’ as understood.

      Will China submit to the Philippine’s filing of the claims under UNCLOS? Under China’s ‘No. 2’ ratification, it appears as supported by its own declaration that China will have to submit. The ratification says:

      xxx The People’s Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts xxx”

      and that it will submit it under International law, as further stated in its ratification –

      “xxx respectively on the basis of international law and in accordance with the principle of equitability.”

      “xxx on the basis of international law” simply means by a body like UNCLOS, agency of UN. Philippine claim and China’s claim is now, as filed by the Philippines subject of ‘jurisdiction’ by UNCLOS, which China under it’s No. 2 clause of ratification. A maritime jurisdictional matter, in accordance with ‘Principle of equity’ [ or equitability as China wants to be understood.] Two disputing parties obviously cannot apply for themselves the principles of equity as against the other. It needs a third agency. UNCLOS.

      My simple understanding is there is no need ‘to force’ China as China ratified to submit itself under the Principle of equity as it ratified it in it’s No. 2 Clause. For China not to honor it’s own ‘Ratification’ in No. 2 Clause is meaningless. It will not be an ‘equitability’ or equitable for it to dishonor it’s No. 2 Clause ratification.

      I guess Philippines has to watch out the ‘ratification’ Clause of China during the early skirmishes on the point. The strength or weakness of China’s subsequent acts to renege what it ratified has to be guarded well by Philippines. This is my observation. Thanks @clementejack.

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      • To go to the bigger issue is: Is China’s claim that “it owns all the islands in South China Sea” based on equity? Equitable? Or equitability? This is the first ‘anchor’ where equity obviously will clench or influence one or more of the rocks in this Sea disputed area. The ‘evidence or proofs’ and the allegations will be revealed for consideration before UNCLOS. Let us try to know what they are.

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        • @clementejack…why do you say –

          “Legally, the disputes do not come under the UNCLOS – from either the Philippines or Chinese side. Philippines can’t make a long laundry list of reservations to protect its stakes and yet want to have its cake too by trying to bind China by imagined laws…?”

          Is it only by diplomatic conduct and not before UNCLOS? What is your reason on this. Interesting really. Complicated but not unresolvable on equitable principles.

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          • @clementajak
            what Prez Noy and company did is a diplomatic solution, the UNCLOS is such a body….

            there is no way to do our claim via their diplomatic representative since he is dictated by the communism of chinese yellow.

            be positive, not all chinese love communism he he he he

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    • The Hidden Harmonies post is no more than a re-hash and recitation of China’s position. The last paragraph has the money quote that betrays the article’s pro-Chinese bias: “China claims South China Seas based on history.” FYI, history is not a solid basis for claiming ownership; neither is geographical proximity or distance for that matter. What counts (apart from occupation) is effective political administration of the contested territory.

      In a situation where it’s one country’s word against the other the rational course is to submit the issue to international arbitration. The Philippines is willing, China is not — perhaps because it knows it will lose? Who knows? Irony of ironies and wonder of wonders, while China refuses to submit the South China Sea to arbitration it is demanding international arbitration in its dispute with Japan over the Senkaku islands. So who wants to have its cake and eat it too?

      The article’s idea of a “diplomatic solution” is for a bilateral agreement – in other words, a private discussion between a colossal country and a minor nation. What do you think will the outcome be? The Philippines is not “playing legal games” because China refuses to give precise coordinates to its infamous “nine-dash” map. There is no guarantee it will stop at Scarborough, there is no guarantee it will NOT claim the waters immediately off Palawan or western Luzon.

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    • I have a further item to say…a guess or extra sense: Is there a secret, very confidential ‘pact or arrangement’ between the US gov’t and the PRC, militarily, economically and trade, where US manufacturing companies can be put up in China for the latter to produce US good, China to buy or invest in US dollars, and the products exported to US markets, thus the MFN Clause, on the condition that when at the ripe or right time, China vents and make moves to “take all Islands” in the South China Sea, US gov’t will not interfere, except that of taking TAIWAN. Something like that.

      If there is, TAIWAN must have some information on this but keeping it as confidential for it’s own benefit.

      Of course US gov’t has not shown an interests on the Islands in the area. If every now and then US warships are seen or sailing there, it’s just for some other many purposes or reasons.

      This ‘pact or arrangement’ must have been concluded many years ago, probably during the era of Deng Siao Peng after Mao Tse Dung. My suspicion because for USA to engage China to make US products must have been such a big big IDEA negating the NAFTA or North American trade idea.

      With such ‘pact or arrangement’ all other claimants in the South China Sea or West Philippine Sea, Japan, Vietnam, Malaysia and Taiwan, would have no chance to stop China moving to take over and occupy all the Islands with US gov’t honoring the arrangement with China. Of course, secretly abiding what was agreed.

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      • No, there isn’t. The greatest risk to Philippine independence is within the Philippines, a certain lack of unity and commitment by its peoples to bind Philippine interests with US interests. Notice I said peoples, not government.

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  22. China will define herself with her response. A military spokesman recently categorized the Philippines as a “running dog” of the US, along with Japan and Viet Nam, and further said “we only have to kill one” to get the others to fall into line. Japan is unlikely to be the one.

    Quite a different tenor from the DFA’s explanation above.

    To accede to the arbitration, China would have to change its diplomatic position. That would mean bending. I’m betting it won’t happen, and all we will hear from China is snarl.

    I’d love to be wrong. I just haven’t seen much diplomatic “class” emanating from over there for a while.

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    • @Joe America #3
      You’re right, given what China declares when he ratified the UNCLOS.

      Here’s what China declares

      Declaration under article 298:
      The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention

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  23. @jorge bernas

    I fully agree with you and the spirit of nationalism and patriotism should be rekindled once more in every Filipino.

    “Ne’er shall invaders trample our sacred shores.”

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  24. A very good move! Let the whole world know that China is trying to rob us of our territory. Would love to see other nations (Vietnam, Japan, and others) follow suit in filing cases in the UN. The Chinese brand will suffer a hit in the international business community because of its greed.

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    • I agree Mr. Bernas. I support the President by all means. Although I’m here in the US, I still think, act, feel I’m a Filipino.

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