PH power team to The Hague; UN tribunal to rule first on jurisdiction

By: Nikko Dizon - 9 years ago

President Benigno Aquino III has assembled a top-caliber delegation to the oral arguments on the Philippine case against China before the United Nations arbitral tribunal in The Hague, which will first decide whether it has jurisdiction over Manila’s petition to nullify Beijing’s claim to nearly all of the South China Sea.

The oral arguments open next week as China rushes the completion of artificial islands on Philippine-claimed reefs in the Spratly archipelago, in what is seen as a strategy to hand the UN tribunal a fait accompli in the event the court accepts the case and rules in Manila’s favor.

Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, said China’s island-building in the Spratlys had for sure drawn the attention of the UN arbitral tribunal.

“They will be very, very careful in what they do and analyze the issue. They will be attentive to the details,” Batongbacal said when asked in a telephone interview whether the tribunal would consider China’s island-building in looking into the Philippine petition.

But first the tribunal needs to decide whether it has jurisdiction over the case.

Jurisdiction is perhaps the most crucial step the Philippines has to hurdle in pressing its case against China, Batongbacal said.

“It is the threshold preliminary question that has to be answered in our favor before the tribunal decides on the merit of the case,” he said.

Batongbacal said the tribunal would likely issue a “mixed ruling.”

“It’s more realistic [that, yes, it has jurisdiction than] no, it has no jurisdiction,” he said.

This is because there are specific claims in the Philippine petition, such as the claim over Panatag Shoal (Scarborough Shoal) and China’s claim over almost 90 percent of the 3.5-million-square-kilometer South China Sea, he explained.

“Each one has a jurisdictional and admissibility issue,” he said.

Malacañang has not released the list of officials going to the oral arguments but the Inquirer has learned that the group leaving for The Hague this weekend includes members of the Cabinet security cluster.

PH delegation

The oral arguments from July 7 to 11 will tackle jurisdiction and case admissibility and not yet the merits of the case, Foreign Secretary Albert del Rosario told the Inquirer.

The Inquirer learned that aside from Del Rosario, those who will attend the oral arguments as observers are Executive Secretary Paquito Ochoa, Justice Secretary Leila de Lima, Defense Secretary Voltaire Gazmin, Undersecretary Abigail Valte and Undersecretary Emmanuel Bautista, executive director of the Cabinet cluster on security, justice and peace.

Also members of the delegation are Supreme Court Justices Antonio Carpio and Francis Jardeleza and Sandiganbayan Justice Sarah Jane Fernandez.

Senate President Franklin Drilon and House Speaker Feliciano Belmonte Jr. are also joining the delegation, the Inquirer has learned.

To argue the Philippine case in the closed-door hearing is Solicitor General Florin Hilbay. He will be assisted by an American lawyer retained by the government, Paul Reichler of Foley and Hoag LLP.

China fuming mad

Inquirer sources said China was fuming over the Philippines’ insistence on international arbitration to settle their territorial dispute in the South China Sea.

China has refused to take part in the proceedings, insisting on bilateral negotiations even as it gobbles up reefs in the heavily disputed Spratly archipelago, building artificial islands that other claimants to territory in the South China Sea fear it will use to impose its will on its rivals in the region.

Besides the Philippines, Brunei, Malaysia, Vietnam and Taiwan claim parts of the South China Sea, a waterway believed to be home to vast oil and gas reserves and crisscrossed by sea-lanes where $5 trillion in global trade passes every year.

The US think tank Center for Strategic and International Studies (CSIS) reported on Sunday that a 3,000-meter runway that China was building on Philippine-claimed Kagitingan Reef (Fiery Cross Reef) in the Spratly archipelago was “nearly complete.”

A satellite picture taken on Sunday showed that China was paving and marking the runway on Kagitingan, and an apron and taxiway had been added, CSIS said on its website.

China’s project to build artificial islands and facilities on various reefs and outcrops in the Spratlys only became publicly known in recent months but construction has since been rapid, raising tensions with its neighbors that also claim parts of the South China Sea and with the United States.

Washington has weighed sending warships and aircraft within 22 kilometers of the artificial islands to test China’s extensive claim over the South China Sea.

Broken promise

Communications Secretary Herminio Coloma told a news briefing in Malacañang on Thursday that by building artificial islands in the Spratlys, China had broken its commitment to maintain the status quo under the Declaration on the Conduct of Parties in the South China Sea that it signed with the Association of Southeast Asian Nations (Asean) in 2002.

Coloma said the Philippines halted planned improvements to its facilities on Pag-asa Island (Thitu Island) and seven other islands in the Spratlys in keeping with the agreement.

He said China’s recent announcement that its island-building in the Spratlys would end soon was not making good on its commitment because the artificial islands would be completed by then and the construction of infrastructure would follow.

The completion of the artificial islands would prove that China violated the 2002 agreement with Asean, Coloma said.

Rule of law

Coloma did not give a direct answer when asked about reports that China appears to be building military bases on the artificial islands, but he said the Philippines was no longer alone in seeking a resolution of territorial disputes in the South China Sea according to the rule of law, specifically the United Nations Convention on the Law of the Sea.

CSIS reported that a lake in the middle of Kagitingan Reef had been filled in and it had a partially developed port with nine temporary loading piers.

Personnel could be seen walking around and two helipads, up to 10 satellite communications antennas and one possible radar tower were also visible, CSIS said.

Washington wants Beijing to halt construction and militarization, which “the Chinese show no indication of willingness to do,” said Bonnie Glasser of CSIS.

Short-term lull

She said that she anticipated a short-term lull in construction as summer is typhoon season in the South China Sea while China’s President Xi Jinping was due to visit the United States in September and “the Chinese are attaching priority to having a successful summit.”

But she said she expected activity would pick up again later.

The artificial island on Kagitingan Reef is now 2.74 square kilometers in size, CSIS said.

China has reclaimed land on seven different reefs totaling an estimated 12.8 sq m, CSIS added.

At one of the sites, Philippine-claimed Mabini Reef (Johnson South Reef), CSIS said China had added a small port with two loading stations, two helipads on the reef and up to three satellite communications antennas.

It also had a “large multilevel military facility” with two possible radar towers being built, along with up to six security and surveillance towers, and four possible weapons installations.

Military capability

Analysts said the runway on Kagitingan Reef would be long enough for the People’s Liberation Army to land any of its aircraft on the artificial island.

Arthur Ding, an expert on China’s military at Taiwan’s National Chengchi University, said the airstrip would “definitely improve or enhance somewhat China’s military capability in the South China Sea,” including being able to deploy jet fighters to the island, although they would need “sophisticated logistical” support.

Other neighboring countries have also built artificial islands in the area, Ding pointed out. But the speed and scale of China’s works were much faster, he said, and whatever it does “definitely will have serious repercussions on the South China Sea and the regional order.” With reports from Jerry E. Esplanda and AFP