From GMA News (Sep 27): Legal case against China's West PHL Sea claims gathers pace
The Philippines' legal challenge against China's claims in the South China Sea
is gathering pace, emerging as a "proxy battle" over Beijing's territorial
reach.
Manila has assembled a crack international legal team to fight
its unprecedented arbitration case under the United Nations' Convention on the
Law of the Sea - ignoring growing pressure from Beijing to scrap the action.
Any result will be unenforceable, legal experts say, but will carry
considerable moral and political weight.
The Philippines has invested
a "huge amount of political capital in this legal gambit and it wants to ensure
success regardless of the cost," said security scholar Ian Storey of Singapore's
Institute of South East Asian Studies.
"If the Philippine team
submits a less than convincing case...this would be very embarrassing for Manila
and put it right back to square one in its dispute with China.
"Beijing would also be emboldened to pursue its claims even more assertively
than it has been doing over the past few years."
Beyond the legal
questions, the case carries political and diplomatic risks and is being closely
watched by Japan and Vietnam, locked in their own disputes with China over sea
territory, officials from both countries say.
The United States,
which is deepening military ties with the Philippines, a longstanding treaty
ally, is also watching.
The legal battle mirrors tensions at sea,
where China and the Philippines eye each other over rival occupations of the
Scarborough and Second Thomas shoals.
Chinese vessels occupied
Scarborough after a tense two-month standoff between rival vessels last year - a
move some regional analysts have described as an effective annexation by
Beijing.
The Philippines accused China of further encroachment when a
naval frigate and two other ships steamed within five nautical miles of a
dilapidated transport ship that Manila ran aground on Second Thomas Shoal in
1999 to mark its territory.
One Asian envoy from a non-claimant
country said: "We are watching and worrying about an accident or miscalculation
sparking an armed confrontation. So in some ways this growing legal fight looks
like the proxy battle, you could say."
Overlapping claims in the
South China Sea - traversed by half the world's shipping tonnage - are one of
the region's biggest flashpoints amid China's military build-up and the U.S.
strategic "pivot" back to Asia.
The claims of the Philippines,
Vietnam, Malaysia and Brunei are bisected by China's "nine-dash line" - the
historic claim that reaches deep into the maritime heart of Southeast Asia.
European states, Russia, India and South Korea are also monitoring
events, given the sea's shipping lanes and potential oil and gas resources,
diplomats and military officials say.
Manila's
frustrations
Frustrated by slow progress by the Association
of South East Asian Nations in easing tensions and fearing its sovereignty was
threatened, Philippines officials said they had no alternative.
Unable to contest actual sovereignty in international courts without China's
consent, Manila instead launched its arbitration in January - despite formal
objections from Beijing.
Philippines Foreign Ministry spokesman Raul
Hernandez told Reuters this week that Manila remained positive that the action
would clarify the claims and entitlements of claimants to "benefit the region
and the international community as a whole".
Manila's team is
preparing arguments to show that the nine-dash line claim is invalid under of
the Law of the Sea. They are also seeking clarifications of the territorial
limits, under the law, of rocks and shoals such as Scarborough - all part of a
bid to confirm the Philippines' rights within its 200-nautical-mile exclusive
economic zone.
Philippines' lead counsel Paul Reichler, a
Washington-based lawyer with Foley Hoag, told Reuters that his five-strong team
included British law professors Philippe Sands and Alan Boyle as well as Bernard
Oxman from the University of Miami's law school.
Independent legal
experts have described the team, managed by the Philippines' Solicitor General
Francis Jardeleza, as "formidable", with deep experience of the arcane world of
the Law of the Sea, a landmark document approved in the early 1980s.
China's anger
China has refused to participate,
saying the case has "no legal grounds", and is widely expected to reject any
outcome its does not agree with.
Foreign Ministry spokesman Hong Lei
said China views the move as a breach of a 2002 declaration between China and
ASEAN.
"The Philippines has illegally occupied the reefs and islands
in the South China Sea that belong to China... China has consistently advocated
for resolution to the dispute at hand through bilateral dialogue," he said.
Behind the scenes, Chinese diplomats are telling the Philippines' ASEAN
peers that the case has no merit, according to diplomats from the 10-nation
grouping.
Philippines Foreign Ministry officials said Beijing
demanded that Manila scrap the case as a condition for a long-planned trip by
President Benigno Aquino to a regional trade show in southern China this month.
Chinese officials said no invitation was ever offered. The trip never
happened.
The Philippines' effort, however, was recently given a
boost by a decision from an arbitration panel created to hear the case under the
U.N.'s International Tribunal of the Law of the Sea.
The five
international judges said the Philippines had until March 30, 2014 to produce
written arguments about the case's admissibility and merits. China is a member
of the tribunal but has forgone its right to select one of the judges to the
panel.
Maritime scholar Clive Schofield said the request for the
Philippines to provide arguments was potentially favorable. It also meant the
case might take less than the three to four years anticipated by Manila when it
was launched in January.
"It suggests that the Philippines will be
able to present its arguments on the merits of the case as soon as the
jurisdictional hurdle is overcome...If I was sitting the Philippines' chair
right now I would be happier than sitting in China's," said Schofield, a
professor at the University of Wollongong in Australia.
Schofield
described the panel as "irreproachable. These guys are at the very top of their
game and I expect it would be very unlikely they would be swayed by political
issues."
He said that it appeared the panel would not be hostile to
China even though it was not contesting the arbitration.
Ultimately,
the Philippines was anticipating a "good return" on its investment, said Storey,
the Singapore-based expert. A favorable ruling would give Manila confidence in
developing oil and gas reserves in disputed areas such as the Reed Bank.
"Foreign energy companies would also feel more comfortable about
investing in areas...that lie within the Philippines' exclusive economic zone,"
he said.
http://www.gmanetwork.com/news/story/328499/news/nation/legal-case-against-china-s-west-phl-sea-claims-gathers-pace
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