DFA exec: Phl can compel China to accept int'l arbitration

MANILA, Philippines - An official of the Department of Foreign Affairs (DFA) disclosed yesterday that despite China’s refusal to accept arbitration by an international tribunal to settle the dispute over Panatag (Scarborough) Shoal off Zambales, the Philippine government could raise the issue for settlement even without Chinese consent.

Secretary-General Henry Bensurto Jr. of the DFA Commission on Maritime and Ocean Affairs Secretariat told a public hearing conducted by the Senate committee on foreign relations yesterday that the United Nations Convention on the Law of the Sea (UNCLOS) has a unique feature that allows signatory states to avail themselves of compulsory dispute settlement in cases when consensual mechanisms for settlement fail.

Bensurto said the DFA has already tapped the services of foreign legal experts to help in this course of action against China.

The standoff at Panatag Shoal began on April 10 when two Chinese surveillance ships stopped the Philippine Navy flagship BRP Gregorio del Pilar from investigating eight Chinese fishing boats for poaching marine life.

Bensurto declined to identify the law firm or the lawyers involved, but the revelation came after Senate President Juan Ponce Enrile urged the DFA to consider tapping the legal services of foreign firms that have expertise in these types of cases.

Enrile cited the move of Vietnam to hire the services of Washington -based law firm Covington & Burling in its own efforts to settle its boundaries in its southern coast, which form part of the disputed Spratly Islands.

The issue of taking the country’s dispute with China over Panatag Shoal to an international court, such as the International Tribunal on the Law of the Sea (ITLOS) and the International Court of Justice (ICJ), has generated varying opinions from different sectors.

China, as expected, had refused the invitation of the Philippines to bring the dispute for settlement at an international tribunal, claiming that the Chinese have historical claims over the shoal.

University of the Philippines professor Merlin Magallona said that the government could not take China to a compulsory dispute settlement at an international tribunal because of the absolute rule in international law that consent of opposing party must be secured for such actions.

Bensurto, however, argued that the need for consent from the opposing state as far as the UNCLOS is concerned refers only to territorial disputes.

He explained that the DFA is not pursuing a settlement over a territorial dispute but rather a maritime issue involving the waters under the jurisdiction of the Philippines.

Bensurto said that the note verbale issued by the Philippine government to China inviting China to settle the Panatag dispute in an appropriate forum precisely made a distinction between the territorial and maritime issues.

He said that China was told to respect the sovereign rights of the Philippines with respect to its exclusive economic zone (EEZ).

The EEZ, under the UNCLOS, covers 200 nautical miles from the baseline of a state, in which the state has sovereign rights for the exploration and exploitation, conservation and management of natural resources in those waters.

“We are also inviting them (Chinese) with respect to sovereign rights of the Republic of the Philippines, with respect to its EEZ, we have invited them to ITLOS. We want this to be a consensual, peaceful settlement. If we cannot agree between the two of us, maybe we can tap a third party for adjudication,” Bensurto said.

He said that the Philippine government could ask the international tribunal for compulsory dispute settlement on issues outside of the reservations made by China regarding the issue.

“The general rule is there is compulsory arbitration. The exception to this is if one of the countries makes a reservation, they don’t want to be party to any dispute, they cannot be brought to compulsory arbitration with respect to those issues,” Bensurto said.

“But what about issues outside of the reservations made? The answer is yes. Under UNCLOS, the general rule is compulsory dispute settlement. This is the unique feature of UNCLOS that distinguishes it from the general legal framework of public international law,” he added.

Enrile said that the country has a strong case against China as far as Panatag Shoal and even Recto Bank (Reed Bank) are concerned.

“We have a good case over Scarborough Shoal against China as well as over the Reed Bank. I could not believe that a nation almost 1,000 nautical miles away from the Scarborough Shoal and the Reed Bank could overwhelm the rights of nearest sovereign state like the Republic of the Philippines in these places apart from the fact that probably, the Scarborough Shoal and the Reed Bank could very well be part of continental shelf of the Republic of the Philippines, both strictly and broadly defined,” Enrile said.

Ang Kasangga party-list Rep. Teodorico Haresco warned the government that China might not withdraw from Panatag Shoal since Beijing is in the middle of a military expansion program in the region aimed at weakening the influence of the US.

Haresco said that in 1993 the Chinese government unveiled its plan to increase its power in the region, particularly in the resource-rich West Philippine Sea and the Malacca Straits.

“Beijing’s strategic plan for its military, economic and even cultural expansion is from 2010 to 2020 and Chinese leaders want to preserve and strengthen what they believe is the only existing civilization,” Haresco said.

He noted that China has been steadily increasing its defense spending in the last several years and the People’s Liberation Army (PLA) has already begun test runs of its newly acquired aircraft carrier, which is meant to project power.

“They have been moving forward inch by inch in the region and have been effective in increasing its influence and territory without us realizing it,” he said, referring to the number of Chinese structures in the disputed Spratly Islands.

Phl formally invites China

DFA spokesperson Raul Hernandez said the Philippines had formally invited China on Thursday to bring their claims to ITLOS.

Hernandez said the DFA sent a note verbale to the Chinese side, calling on China to respect the Philippines’ sovereignty and sovereign rights under UNCLOS over Panatag Shoal and its EEZ.

“In the same note verbale, we have also formally invited China to join the Philippines in bringing the issue before an appropriate third-party adjudication body under international law, specifically ITLOS, with respect to the rights and obligations of the two countries in the Philippines’ EEZ. This approach would resolve on a long-term basis any differences of position on the issue, and ensure a peaceful, stable, and lasting bilateral relationship between the Philippines and China,” Hernandez said.

Foreign Affairs Secretary Albert del Rosario asked China on April 17 to join Manila to proceed to the United Nations-backed tribunal for a legal and lasting resolution instead of a diplomatic solution.

Although talks to resolve the standoff in Panatag Shoal by diplomatic means should continue, Del Rosario said the two countries should seriously consider a legal track by proceeding to ITLOS.

Del Rosario’s invitation to seek recourse in ITLOS was made as China continued to display might with its ships currently engaging in illegal activities within the Philippines’ EEZ.

The international law, he said, would be the greatest equalizer.

The secretary first raised last July to Foreign Minister Yang Jiechi as well as Vice President Xi Jinping the proposal to take the issue to the ITLOS.

According to Del Rosario, the response he received was that “we should undertake to settle this bilaterally and not use a dispute settlement mechanism, let’s not go the legal way, let’s do it the friendly way. So effectively they said no to our suggestion that we take it to international arbitration.”

China’s Ministry of Foreign Affairs reminded the Philippines of its explicit pledge in the Declaration on the Conduct of Parties in the South China Sea for resolution of the sea dispute not by negotiation with the Association of Southeast Asian Nations (ASEAN) but bilateral negotiation with relevant countries.

Del Rosario said that China’s rejection of Manila’s suggestion that both countries elevate their dispute in the West Philippine Sea (South China Sea) to ITLOS is an indication that Beijing may not be able to validate its territorial claims.

China has recognized that the UNCLOS allows coastal states to claim a 200-nautical-mile EEZ, providing legal basis for the Philippines’ territorial claims but declared “there is no such issue of taking the dispute over Panatag Shoal and the West Philippine Sea to the ITLOS.”

Chinese Foreign Ministry spokesperson Liu Weimin rejected anew the Philippines’ invitation for both countries to proceed to the UN-backed tribunal to defend their respective claims.

With Beijing’s rejection to validate its territorial claims, the Philippines appears to be heading to the ITLOS alone.

The Philippines believes that the world is watching China’s behavior in Panatag Shoal, which Beijing calls Huangyan Island.

The Philippines had also urged the member-states of ASEAN to take a common position and seek ways to address the developments in the West Philippine Sea.

Meanwhile, Environment Secretary Ramon Paje said the UNCLOS has finally approved the Philippine claim over Benham Rise, an underwater area off Aurora province believed to have gas deposits.

Paje said UNCLOS had sent a letter to the government confirming Philippine ownership of the Benham Rise.

“We can now formally own Benham Rise which covers some 13 million hectares. This is even bigger than Luzon province plus Samar and Leyte,” Paje said.

He said the Benham Rise is an area abundant with minerals like manganese, an indispensable component of steel.

The Philippines is the only claimant of Benham Rise, which is located in front of Isabela and Aurora.

Paje said the Philippines only filed its claim at the UNCLOS in 2008 though the area was discovered in 1933.

“Apart from minerals, it is also rich in gas deposits like methane,” he added. - With Pia Lee-Brago, Rhodina Villanueva, Paolo Romero