PH in The Hague: China violated int’l law
PH CASE VS CHINA Members of the Philippine team are seated at the Peace Palace in The Hague before starting oral arguments on the arbitration case against China’s claims over the West Philippine Sea. Members include Solicitor General Florin Hilbay, Senior Associate Justice Antonio Carpio, Justice Secretary Leila de Lima, Presidential Adviser on Political Affairs Ronald Llamas, Speaker Sonny Belmonte Jr., Executive Secretary Pacquito Ochoa Jr., Foreign Secretary Albert del Rosario, Defense Secretary Voltaire Gazmin, Associate Justice Francis Jardeleza, Chief Presidential Legal Counsel Benjamin Caguioa, Deputy Executive Secretary Menardo Guevarra, Consul General Henry Bensurto and legal counsels led by Paul Reichler of Foley Hoag. PHOTO FROM ABIGAIL VALTE’S TWITTER ACCOUNT
China violated international law by seizing territory in the region “with overwhelming force,” Foreign Secretary Albert del Rosario said on Tuesday as he asked an international court to intervene in the Philippines’ dispute with China over the right to exploit natural resources and fish in the West Philippine Sea.
Del Rosario spoke before the five-member Permanent Court of Arbitration in The Hague, saying China violated the United Nations Convention on the Law of the Sea (Unclos) by invoking “historic rights” in claiming nearly all of the 3.5-million-square-kilometer South China Sea.
Addressing the tribunal’s president, Judge Thomas Mensah of Ghana, Del Rosario said the Philippines took to the dispute resolution provision of Unclos as these “allow the weak to challenge the powerful on equal footing, confident in the conviction that principles trump power, that law triumphs over force, and that right prevails over might.”
The Philippines filed suit in the court in January 2013, seeking to enforce its right to exploit waters within a 370-kilometer exclusive economic zone (EEZ) off its coast, as defined under Unclos.
Manila calls those waters West Philippine Sea, but Beijing insists those are part of its territory, and has seized traditional Philippine fishing grounds there and reefs believed to be sitting atop vast oil and gas reserves.
As China’s actions struck right at the core of Unclos, Del Rosario told the court that it had jurisdiction over the case.
It is “not just the Philippines’ claims against China that rest in your capable hands, Mr. President. It is the spirit of Unclos itself,” he said.
Unclos, an international agreement reached between 1973 and 1982, guides nations on their rights and responsibilities with respect to their use of the world’s oceans.
Not sovereignty
Del Rosario stressed that the Philippines was “not asking the tribunal to rule on the territorial sovereignty aspects of its dispute with China.”
Questions of territorial sovereignty are tackled at the International Court of Justice.
“We are here because we wish to clarify our maritime entitlements in the South China Sea, a question over which the tribunal has jurisdiction. This is a matter that is most important not only to the Philippines, but also to all coastal states that border the South China Sea, and even to all the state parties to Unclos,” he said.
Both the Philippines and China ratified the Unclos, considered the “Constitution for the Oceans.”
Del Rosario told the tribunal that the Philippines had always respected Unclos and implemented its rights and obligations under the treaty in good faith.
To make sure that its maritime claims are in harmony with Unclos, the Philippines, he said, amended its national legislation and converted its straight baselines into archipelagic baselines” in conformity with Articles 46 and 47 of Unclos.
The Philippines also ensured that the maritime zones of the Kalayaan Island Group and Panatag Shoal (Scarborough Shoal) in the West Philippine Sea would be consistent with Article 121 of the treaty.
Beyond the limits
Del Rosario noted that provisions of the Unclos precluded another state to broaden its “entitlements, sovereign rights, or jurisdiction” over maritime areas beyond the limits of the EEZ and continental shelf it has defined.
“In particular, the convention does not recognize, or permit the exercise of, so-called historic rights in areas beyond the limits of the maritime zones that are recognized or established by Unclos,” he said.
“Sadly, China disputes this, Mr. President, in both word and deed,” he said.
Del Rosario argued that China had been claiming that it was entitled to exercise sovereign rights and jurisdiction, including the exclusive right to the resources of the sea and seabed, far beyond the limits established by the convention, based on so-called historic rights to these areas.”
China demarcates its claim in the South China Sea with “nine-dash lines” on the map, encompassing swaths of the sea claimed by the Philippines, Brunei, Malaysia, Vietnam and Taiwan.
“China is not entitled to exercise what it refers to as historic rights over the waters, seabed and subsoil beyond the limits of its entitlements under the convention,” Del Rosario said.
“The central element of the legal dispute between the parties is that China has asserted a claim of historic rights to vast areas of the sea and seabed that lie far beyond the limits of its EEZ and continental shelf entitlements under the convention,” he said.
China’s island-building
Del Rosario also complained to the tribunal about the massive reclamation works that China had been carrying out in the South China Sea since the Philippines brought the arbitration case.
“In fact, China has done much more, Mr. President, than to simply claim these alleged historic rights. It has acted forcefully to assert them, by exploiting the living and nonliving resources in the areas beyond the Unclos limits while forcibly preventing other coastal states, including the Philippines, from exploiting the resources in the same areas,” Del Rosario said.
He stressed that those areas lie well within 370 kilometers from the Philippines’ coast.
“In many cases, hundreds of [kilometers] beyond any EEZ or continental shelf that China could plausibly claim under the convention,” he added.
China’s island-building frenzy in the South China Sea has drawn opposition among members of the international community, including the United States and the Group of Seven (G-7), which includes Germany, France, United Kingdom, Italy and Japan.
Del Rosario said the various maritime features relied upon by China as a basis upon which to assert its claims in the South China Sea were not islands that generated entitlement to an exclusive economic zone or continental shelf but rocks.
“Others are low-tide elevations and still others are permanently submerged. As a result, none are capable of generating entitlements beyond [22 km] and some generate no entitlements at all,” he said.
“China’s recent massive reclamation activities cannot lawfully change the original nature and character of these features,” he said.
Environmental damage
Apart from altering the existing status quo in the South China Sea through its reclamation works, China, Del Rosario said, has “irreversibly damaged the regional maritime environment,” which is against Unclos.
Del Rosario said China destroyed coral reefs in the South China Sea, including areas in the Philippines’ EEZ, “by its destructive and hazardous fishing practices, and by its harvesting of endangered species.”
Earlier, the Philippines said China had destroyed 300 hectares of coral reef systems and caused economic losses of $100 million to coastal states annually.
Del Rosario said arbitration became the Philippines’ only resort after all its efforts, which included bilateral talks with China and dialogues within the Association of Southeast Asian Nations (Asean), had failed.
Asean and China have yet to conclude a binding code of conduct in the South China Sea. But a Declaration on the Conduct of Parties in the South China Sea was signed in 2002 to resolve the disputes in the region.
Aggressive behavior
Over the years, China’s positions and behavior have become progressively more aggressive and disconcerting, Del Rosario said.
He told the court about China’s “salami-slicing strategy,” which was to take little steps at a time, and “cabbage strategy,” which meant “peeling one layer off at a time.”
“When these small steps are taken together, however, they reflect China’s efforts to slowly consolidate de facto control throughout the South China Sea,” he said.
He enumerated China’s acts over the years. He said China prevented the Philippines from carrying out longstanding oil and gas development projects in areas that were well inside the Philippines’ EEZ and continental shelf.
In 2012, China forcibly expelled Filipino fishermen from Panatag Shoal.
“If China can defy the limits placed by the convention on its maritime entitlements in the South China Sea, and disregard the entitlements of the Philippines under the convention, then what value is there in the convention for small states parties as regards their bigger, more powerful and better armed neighbors?” Del Rosario said.
Jurisdiction
Following Del Rosario’s speech, the American lead lawyer for the Philippines, Paul Reichler of Foley Hoag LLP, was called to the podium.
Reichler presented the justification for the tribunal’s jurisdiction over the Philippine claims under Unclos.
He was followed by other foreign legal experts, who explained how the Philippine claims did not raise questions of sovereignty over land or raise questions of maritime delimitation.
According to the Department of Foreign Affairs (DFA), the Philippines’ lawyers will further explain on the second day of oral arguments how the Philippine case would not fall under the specific Unclos exemptions that would preclude the tribunal from hearing the case.
“They also will present strong arguments regarding the strength of the Philippines’ environmental and fishing claims against China,” the DFA said in a statement.
The Philippine legal team is expected to summarize the Philippines’ case and reply to questions to be raised by the tribunal before the oral arguments conclude on July 13.–With wire report
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