Three Years After Our Nation’s Arbitral Victory: An Environmental Crisis

In commemoration of the Philippines’ decisive win in the South China Sea Arbitration before a UN Convention on the Law of the Sea Annex VII Tribunal constituted at the Permanent Court of Arbitration in The Hague, Netherlands in 2016, the UP Institute for Maritime Affairs and the Law of the Sea, in partnership with Stratbase ADR Institute, hosted “Three Years After Our Nation’s Arbitral Victory: An Environmental Crisis”, a public forum, at the UP Bonifacio Global City Campus last July 12, 2019. The forum was attended by various government institutions, non-government organizations, lawyers, academics, students, and news and media organizations. 

Supreme Court Associate Justice Antonio Carpio and Prof. Renato de Castro. Source: Stratbase-ADRI.

The forum consisted of two panels, the first of which focused on the Duterte Administration’s post-Arbitration policy direction in the West Philippine Sea. Supreme Court Associate Justice Antonio Carpio, De La Salle University professor Dr. Renato De Castro and UP IMLOS Director Dr. Jay Batongbacal provided insight on the same.

IMLOS Director Prof. Jay Batongbacal. Source: Stratbase-ADRI.

The second panel featured former Ombudsman Conchita Carpio-Morales, PROTECT West Philippine Sea Chief Scientist Dr. Deo Florence Onda, De La Salle University College of Law Dean Atty. Jose Manuel “Chel” Diokno, and ABS-CBN News Correspondent Chiara Zambrano, who then focused on the environmental crisis in the West Philippine Sea and the long-term effects of marine degradation on food and economic security. Dr. Mahar Mangahas, President of the Social Weather Stations, also presented the SWS survey results on public perception on the current Administration’s handling of West Philippine Sea-related issues.

Dr. Mahar Mahangas discussing SWS Survey Results on Public Opinion on the West Philippine Sea Conflict.

More information on the Symposium can be found here.

IMLOS holds symposium on China’s Growing Role in the Philippine Economy

On May 28, 2019, the UP Law Center, through its Institute for Maritime Affairs and Law of the Sea (IMLOS) and Institute for International Legal Studies (IILS), hosted a public discussion on “China’s Growing Role in the Philippine Economy”. The symposium explored, in particular, issues relating to the Philippines and China’s recent cooperation agreements signed on the occasion of Chinese President Xi Jinping’s state visit to Manila in November 2019, and President Rodrigo Duterte’s visit to Beijing in April 2019.

Prof. Merlin Magallona, Former Dean of the UP College of Law, discussed the constitutional implications of the Memorandum of Agreement on Oil and Gas Cooperation. Information and Communications Technology Law experts Prof. Rogelio Quevedo and Prof. Emerson Bañez, each discussed aspects of commuications infrastructure cooperation with China. Former Public-Private Partnership Center head Prof. Andre Palacios discussed the thrust of the ongoing Build, Build, Build Program vis-a-vis proposed infrastructure projects under the agreements. Finally, UP School of Economics Teaching Fellow JC Punongbayan walked attendees through the financial and economic aspects of China’s agreements under the Belt and Road Initiative.

The Symposium concluded with several points for future consideration as the two countries move forward with their respective commitments. First, there must be a careful assessment of how these agreements are treated in relation to the Constitution. Definitions of particularly contentious terms such as “patrimonial assets” must also be analyzed. Second, agreements about information and communications technology must be reviewed as against the existing tech infrastructure in the country, the technical and financial capacity of existing players, and future demand of consumers. Third, public infrastructure agreements must be assessed in terms of what kind of financing is most advantageous and feasible, the source of such financing, and terms and conditions that may severely put the Philippines at a disadvantage. Panelists and participants also noted the importance of looking out for various risks which, while not contained in stipulations under the agreements, may nevertheless arise in the implementation stages.

With a number of such agreements providing for deadlines to further agree on the terms of implementation thereof, and the forthcoming assumption into office of new members of Congress, public discussion on the same remains timely as ever.

UP Law hosts 2019 Stetson SEARR—NUS, UP teams bag top awards

Final round judges with the winning team from NUS

The University of the Philippines Law Center through its Institute for Maritime Affairs and Law of the Sea (UP-IMLOS) and Institute for International Legal Studies (UP-IILS), hosted the Southeast Asian Regional Rounds (“SEARR”) of the 23rd Stetson International Environmental Law Moot Court Competition (“Stetson”) last January 8 to 10 at the UP College of Law. The Stetson is the most prestigious international environmental law moot court competition that focuses on the legal aspects of global environmental challenges. One of two student teams representing the National University of Singapore bagged the championship during the Stetson SEARR.

This year’s competition centers on the “Use of the Sargasso Sea and the Protection of Eels”, involving coastal States’ responsibilities under international environmental treaties. These include the Convention on Biological Diversity (CBD), Convention on Migratory Species (CMS), UN Convention on the Law of the Sea (UNCLOS), UN Framework Convention on Climate Change (UNFCCC), and the Paris Climate Agreement.

A total of 14 teams participated in the Stetson SEARR, hailing from law schools in the Philippines, Singapore, Malaysia, and Thailand. Four of these teams will be moving on to compete in the International Final Rounds of the Stetson Competition in Gulfport, Florida, namely, the University of the Philippines, University of St. La Salle, and two teams from the National University of Singapore (NUS).

Best Speaker in the Final Round, Camille Angela Santana Cruz

Next to NUS’ Applicant Team, the University of the Philippines emerged First Runner-Up of the competition, with mooter Camille Angela Santana Cruz receiving the award for Best Speaker in the Final Round. Awards for the top five speakers during the preliminary rounds were also given to the following, ranked first to fifth: Danelle Leigh Pandan Villadolid (University of St. La Salle), Mark Brainwin Lora Que (Ateneo Law School), Lcid Crescent De La Gente Fernandez (University of San Agustin), Princess Joy Quinto (Lyceum of the Philippines University),and Daniel Victor Labrador Zayco (University of St. La Salle).

The Ateneo Law School also received an award for submitting the Best Memorial, followed by the NUS Applicant Team, and the University of the Philippines.

The International Final Rounds of Stetson will be held in Gulfport, Florida on April 11-13, 2019.

IMLOS opens 2019 with Discussions on Marine Environmental Protection

The UP Institute for Maritime Affairs and the Law of the Sea kicked off its activities for 2019 with a public lecture on “Fisheries and Marine Environment Protection Cooperation within ASEAN” by ocean affairs expert Dr. Lowell Bautista, last January 9, 2018 at the UP Law Center. Dr. Bautista is presently affiliated with the Australian National Centre for Ocean Resources and Security (ANCORS), and is a Senior Lecturer and Head of Students at the University of Wollongong.

During the lecture, Dr. Bautista discussed the global and regional legal and institutional framework on fisheries and marine environmental protection, focusing in particular on different mechanisms existing within the ASEAN. Examining the current situation and strategic realities of the Southeast Asian region, Dr. Bautista pointed to the absence and desirability of a comprehensive, integrated, legally-binding, and overarching marine environmental regional framework. Lack of the same renders compliance merely voluntary and highly dependent on a State’s resource capacity. The region’s political and economic situation also impedes environmental cooperation. Dr. Bautista thus emphasized the need to translate regional programs and projects into national policies that are adequate and effective,in view of the fact that the current legal framework for transboundary fisheries governance is either ad hoc, sectoral, or species-based.

The public lecture was attended by members of different government institutions, non-government organizations, and participants from different law schools competing in the Southeast Asian Regional Rounds of the 23rd Stetson Annual Environmental Moot Court Competition. 

A graduate of the UP College of Law prior to his Master of Laws and Doctor of Philosophy degrees from Dalhousie University (Canada), and the University of Wollongong, respectively, Dr. Bautista regularly advises the Philippine and Australian governments on issues relating to offshore oil and gas resources, the law of the sea, and maritime boundary delimitation, among others.

IMLOS Brown Bag Series: “Fisheries and Environmental Cooperation in the South China Sea”

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Featured Guest:

Mr. Gregory Poling, Director of the Asia Maritime Transparency Initiative and a Fellow with the Southeast Asia Program at the Center for Strategic and International Studies (CSIS)

Mr. Poling oversees research on U.S. foreign policy in the Asia Pacific, with a particular focus on the maritime domain and the countries of Southeast Asia. His research interests include the South China Sea disputes, democratization in Southeast Asia, and Asian multilateralism. Mr. Poling’s writings have been featured in the Wall Street Journal, Nikkei Asian Review, Journal of Political Risk, and YaleGlobal, among others. He is the author of The South China Sea in Focus: Clarifying the Limits of Maritime Dispute (CSIS, July 2013) and coauthor of multiple works including Building a More Robust U.S.-Philippines Alliance (CSIS, August 2015), A New Era in U.S.-Vietnam Relations: Deepening Ties Two Decades after Normalization (CSIS, June 2014), and A U.S.-Indonesia Partnership for 2020: Recommendations for Forging a 21st Century Relationship (CSIS, September 2013). Mr. Poling received an M.A. in international affairs from American University, a B.A. in history and philosophy from St. Mary’s College of Maryland, and studied at Fudan University in Shanghai.

For more information, call +632 9205514 loc. 218 or email up.imlos@gmail.com 

IMLOS COMMENTARY: Chinese Marine Scientific Research as the Philippines Latest Ocean Governance Challenge

By: Dr. Jay L. Batongbacal

China has openly identified marine science and technology through the conduct of marine scientific research (MSR) as vital for the development of maritime power, and has laid out a roadmap to 2050 outlining the means and methods for doing so. To this end, it has invested heavily in its academic and research institutions, fully modernized and upgraded its MSR vessels into the largest and best in the world, and embarked on national and international ocean research programs. It has 46 vessels already in operation, with more being built and pressed into service. The most modern ship, the Xiang Yang Hong 01, is a globally-mobile ocean laboratory capable of long-range voyages and deep-sea research, and if necessary can be operated by one person on the bridge.

Alarm over the grant of consent for conduct of MSR by the Institute of Oceanology of the China Academy of Science, subject to the condition that it partner with the University of the Philippines’ Marine Science Institute, is perfectly understandable given China’s spotty record in demonstrating respect for Philippine jurisdictions and its expansive maritime claims in the West Philippine Sea. Since 2016, a marked increase in MSR activities in the WPS have raised suspicions that China is deploying these vessels as a “grey zone tactic” to assert and demonstrate jurisdiction and administration of its claimed waters.

The PRRD Administration’s quiescence in the face of this increased activity, which included surveys and use of submersibles in areas around the Kalayaan Islands, Scarborough Shoal, and Reed Bank has done nothing to assure Filipinos of the government’s insistence that it continues to protect its maritime interests. International law does not sanction (and even expressly proscribes) the use of MSR activities as a means of asserting and proving sovereignty and jurisdiction over maritime space. But this has not prevented suspicion over China’s objectives, hence, even more intense suspicions were raised once Chinese MSR activities began intensifying on the Pacific seaboard as well.

 

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IMLOS Director Delivers Professorial Lecture

Thru the Dolores and Eduardo Hernandez UP Centennial Professorial Chair Award, Dr. Jay Batongbacal delivered a morning lecture entitled “Philippines – United States Mutual
Defense Treaty and Philippines – United States Security Relations: Evolution or Entropy”. In the afternoon of the same date, Dr. Amado Mendoza of the UP Political Science Department delivered a counterpoint lecture on “Philippines – China – US Relations” and its political implications.

IMLOS COMMENTARY: Understanding the Issue About Chinese Survey Vessels in Benham Rise

By: Dr. Jay L. Batongbacal, 13 May 2017

Benham Rise is an underwater plateau that stretches from the coast of Cagayan and Bicol up to approximately 300-350 nautical miles (nm) in the Pacific Ocean. A large part of this plateau is within the 200 nm Exclusive Economic Zone and continental shelf of the Philippines. An additional area of seabed extending around 150 nm was successfully claimed by the Philippines as its “extended continental shelf” (ECS) in accordance with Article 76 of the UN Convention on the Law of the Sea. The region may not be “territory” in the same sense as land territory, but it is definitely “territory” for the purposes of Philippine laws and regulations over natural resources. The 1987 Constitution considers as legally part of the National Territory all areas over which the Philippines has sovereignty or jurisdiction; Benham Rise falls squarely within this definition.

Within 200 nm, the Philippines has exclusive sovereign rights to explore for, and exploit, living and non-living natural resources of both the water column (the EEZ) and the seabed beneath (the continental shelf). “Sovereign rights” may not be the same as full “sovereignty”, and people usually confuse these two terms. It is like confusing a person’s rights over property he holds under lease and rights to property he holds as a full owner. But the fact that the former is of a different status than the other does not make them any less enforceable under law.

These waters are subject to high seas freedoms available to all nations (including freedom of navigation and overflight), but such freedoms must be exercised in a way that respects, and gives due regard to, the sovereign rights of the Philippines. In addition, the Philippines has the right to regulate and participate in any marine scientific research (MSR) conducted in this area.

Beyond 200 nm, but within the area of the ECS, the water column is considered to be part of the high seas subject to the common rights and freedoms of all States. But the seabed underneath is still subject to the exclusive sovereign rights of the Philippines for purposes of exploration and exploitation of seabed resources. No other State may carry out activities for these purposes in the seabed in this area, even though they may exercise rights and freedoms on the waters above it. This is the area that was recognized by the Commission on the Limits of the Continental Shelf (CLCS) to be the Philippines’ ECS.

The reported activities of China therefore have to be viewed with an eye for careful legal nuances. SND Lorenzana described Chinese survey vessels to have been passing through, or to have been stationary for extended periods of time, or moving in a criss-cross/back-and-forth pattern. Naturally he cannot describe in detail what these vessels were doing, he can only see how the vessels are moving. But that is enough to make some reasonable assumptions. Even without direct visual sighting, the movement of a ship (such as that recorded on a radar plot, or by satellite) tells a lot about its activities.

The first point is this: a vessel is merely passing through if it is moving at a steady pace in one direction, obviously travelling from a distinct place of origin to a specific destination. UNCLOS Part II guarantees the right of foreign vessels to pass through the waters of coastal States subject to certain rules. If it is moving through territorial waters (i.e., within 12 nm from shore) its right to do so is guaranteed by the “right of innocent passage.” Beyond territorial waters, i.e., in the EEZ and high seas, it does so in exercise of “freedom of navigation,” likewise guaranteed by UNCLOS, but such freedom of navigation, by its very name, refers only to the act of navigating on water. It does not connote freedom to undertake any other activity. Such other activities will be governed by the rules applicable to either the EEZ or the high seas, wherever the ship may be located at the time.

This takes us to the second point: within the EEZ of a coastal State, a ship exercising freedom of navigation must respect the exclusive sovereign rights of the coastal State to its EEZ and continental shelf. These rights of a coastal State include regulatory jurisdiction over activities which have the purpose of exploring and exploiting the living and non-living resources of the water column and the seabed within 200 nm from shore. These are guaranteed by UNCLOS Part V and VI. They also include regulatory jurisdiction over activities that fall within the purview of “marine scientific research.” This is governed by UNCLOS Part XIII. While the extent of coastal State jurisdiction varies, they all require the basic element of coastal State consent.

A ship may be assumed to be doing more than exercising freedom of navigation if it is moving in a way that is not in accord with the general objective of navigation: to get from one place to another. If, for example, a ship becomes stationary for a long period of time in one place, either keeping in one specific spot or drifting somewhat, before again moving purposely, or doing so repeatedly, it is reasonable to assume that it is not merely navigating. It is likely doing something else, such as taking soundings, dropping probes, deploying divers or remotely-operated vehicles, or some other activity that requires the ship to stop navigating.

If a ship moves in a direction that is not a straight line, it does so not merely to navigate, but in connection with another activity entirely. If it is moving in circular, zigzagging, or other irregular patterns, it is reasonable to assume that it is chasing fish (or some other object), or actually fishing (or something similar), or doing something else entirely (like military exercises). If it is moving in a regular criss-crossing or back-and-forth pattern at regular intervals, it is likely mapping the ocean floor with sonar or other device. All of these activities indicate that the ship is not merely passing through (i.e., exercising either the right of innocent passage or the freedom of navigation) but is actually doing something else: either marine scientific research, or military activities such as exercises or hydrographic/oceanographic surveys. It becomes even more probable if the ship either returns to its port of origin, or goes to another place that it could have gotten to very easily and in far less time had it not carried out its various movements.

Bringing the situation back to Benham Rise, see the graphic provided. 

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