Author Topic: A judge from China speaks up on our arbitral claim on the West Philippine Sea  (Read 1614 times)

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A judge from China speaks up on our arbitral claim on the West Philippine Sea

By HARRY ROQUE
November 22, 2013
 
Author's Note: Participants to the recently concluded 4th biennial Conference of the Asian Society of International Law in New Delhi, India last November 15, 2017 for the first time heard the Chinese position on the Philippine arbitral claim on the West Philippines Sea dispute.
 
In the said conference, I delivered a paper entitled “What next after the Chinese Snub? Examining the UNCLOS dispute settlement procedure: Philippines vs. China.”

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My paper argued that the issues that the Philippines brought to the arbitral claims, to wit, the validity of China’s nine-dash lines, whether certain low-tide elevations where China has built installations pertain to the Philippines as part of its continental shelf; and whether the waters surrounding the territorial sea of Panatag form part of the Philippines EEZ are issues of interpretation of specific provisions of the UNCLOS and hence, were within the compulsory and binding dispute settlement procedure of the UNCLOS.

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Further, while I acknowledged that China’s reservations on maritime delimitation and law enforcement activities in the exercise of sovereign rights were more challenging obstacles to hurdle, they were not insurmountable because the language of the Philippine claim does not call for a ruling involving any of the reservations made by China.


 
My paper assumed that the Tribunal’s jurisdiction over China as party to the proceedings was well settled. This is because China, as a party to the UNCLOS, has accepted the dispute settlement procedure of the Convention, together with all the provisions of the Convention which were all adopted on the basis of consensus.

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The Chinese Judge to the International Court of Justice, Judge Xue Hanqin, was present in the conference. Judge Xue is the highest woman official in China prior to her election to the Court.
 
Previously, she served as chief legal adviser and head of the treaties office of the Chinese Foreign Ministry and Ambassador to the Netherlands and Asean. She is said to have been groomed to be part of the Central Bureau of China’s People’s Party had she not opted to join the ICJ.
 
While Judge Xue and I have been good friends, having served together in the Executive Council of the Asian Society of International Law for the past six years, I knew it would still be awkward to have her listening to my paper. But the most unusual thing happened after my 25-minute presentation.

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Judge Xue explained that, since she was the only Chinese present in the conference because the Chinese delegates were denied visas by Indian authorities, took the floor for the next 20 minutes and for the first time expounded extensively on the Chinese position on the Philippine arbitral claim.
 
This was unusual because magistrates, be it from domestic or international courts, will normally refuse to comment on an actual dispute, which could come to their court for adjudication. This certainly applies to the West Philippines Sea dispute.
 
Judge Xue raised four crucial points.

underscoring is the poster's

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Her first was that the Philippine claim involved territorial claims which is outside the purview of UNCLOS. She added though that “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash lines with no country ever questioning it until oil resources were discovered in the area.”

Without expounding on the nature of the lines, she claimed that it is “not considered as a boundary line” and they “have not affected international navigation in the area.” She claimed that there was “”no international law applied in this regard to the region.”

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Second, Judge Xue argued that 40 countries, including China, made declarations to the dispute settlement procedure of the UNCLOS. According to her, this means “these 40 states have not accepted the dispute settlement of the Convention as being compulsory”. She added that “when countries joined UNCLOS I, they are not deemed to have given up all their previous territorial claims.”

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Third, she said that, as China’s first Ambassador to Asean, she knows that the countries of Asean and China have agreed to a code of conduct relating to the South China Sea. Under this code, disputes must be resolved through negotiations and not through arbitration. She claimed that this obligation was “a substantive obligation binding on all claimant states.”

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Fourth, Judge Xue explained that China opted out of the arbitration because “no country can fail to see the design” of the Philippine claim which she described as having “mixed up jurisdiction with the merits.”
 
She opined that the Philippines’ resort to arbitration complicated what she described as an “impressive process between Asean and China.”

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What the Philippines did “was to begin with the “complicated part of the South China Sea dispute” rather then with easier ones such as “disaster management.” This later pronouncement all but confirmed that the very limited humanitarian assistance extended to the Philippines by China in the aftermath of Yolanda was because of the Philippine resort to arbitration.
 
Judge Xue ended her intervention by exhorting the Philippines to consider joint use of the disputed waters, a matter that, according to her, has been successfully resorted to by China and Vietnam.

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While Judge Xue’s intervention made our panel, without a doubt, the most memorable exchange in the conference, her declarations provided us with many answers that China has refused to give us.
 
We have Judge Xue to thank for this. — KDM, GMA News
 

Prof. H. Harry L. Roque, Jr. is an Associate Professor at the UP College of Law and the Chairperson of the Center For International Law. This piece originally appeared in his website on November 21. We are re-posting it here with his permission. (GMA News)

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Her first was that the Philippine claim involved territorial claims which is outside the purview of UNCLOS.

ooops.  are we then, on the right track?  and why did our american arbitration lawyer accept the job?  he must know something...

She added though that “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash lines with no country ever questioning it until oil resources were discovered in the area.”

and i thought the world knew about the nine-dash line only when china started moving in, when they learned about the existence of oil resources in the area.

Without expounding on the nature of the lines, she claimed that it is “not considered as a boundary line” and they “have not affected international navigation in the area.” She claimed that there was “”no international law applied in this regard to the region.”

if the lines are not boundary lines, why claim what's bound by those lines as their own?

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so this judge xue hanqin is the chinese female judge in the international court of justice (ICJ).   

our own miriam defensor santiago is a judge in the international criminal court (ICC).

never the twain shall meet as judges.

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addendum: if china feels so right about their territorial claims, does it mean that all other countries around it that are in various stages of territorial disputes with it, are all wrong?  consider these countries: russia, india, japan, the various other claimants of certain islands and islets of the spratlys---vietnam, brunei, taiwan, malaysia and the philippines.  and over and above them all, it's china that's right?

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ICJ Judge Xue Hanqin


Prof. Herminio Harry L. Roque Jr.



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understanding a bit the philippines claim

The Philippines had been seeking to align its position in the WPS (West Philippine Sea) with international law. In 2009, the country passed its baselines law, wherein the Kalayaan Island Group and Bajo de Masinloc were placed under a “regime of islands” consistent with UNCLOS, signaling that Manila has no interest in drawing EEZs (Exclusive Economic Zone) and ECSs ( Extended Continental Shelf ) for its WPS features, which would excessively expand the country’s maritime entitlements and cause it to overlap with the maritime claims of other SCS (South China Sea) disputants. The Philippines is also advocating a rules-based approach that calls for the delineation of areas under dispute from those that are undisputed, to facilitate talks on functional cooperation or joint development in disputed areas. This position had been communicated at regional meetings and summits on the SCS issue. The recent filing of a legal challenge against China’s claims in the WPS can also be understood as resorting to international law to encourage a rival claimant to clarify the extent, nature and bases of its claims. 

Lucio Blanco Pitlo III is an MA Asian Studies student from the University of the Philippines Asian Center specializing in maritime security issues and Philippine foreign policy. The views expressed here are the author’s own.

for the whole article, the link: http://thediplomat.com/2013/10/the-philippines-and-the-west-philippine-sea/1/

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to date, china had made and continues to make moves at the following:

Panganiban (Mischief) Reef - since 1995
distance from palawan (philippines): 112 nautical miles
distance from hainan island (china): 335 nautical miles


Bajo de Masinloc (Panatag Shoal, Scarborough Shoal) - alleged effective occupation since last year
distance from zambales (philippines): 137 nautical miles
distance from hainan island (china): at least 500 nautical miles


Ayungin (Second Thomas) Shoal - recent moves
distance from palawan and pag-asa (philippines) - 105.77 nautical miles and 97 nautical miles
distance from hainan island (china) - 800 nautical miles


note: though distance is not usually a factor in territorial claims, it is so in this particular case of claims by the philippines because these disputed territories are within the 200-nautical mile distance of the country's exclusive economic zone (EEZ)

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