Reference: Prof. Harry L. Roque, Jr. 09175398096
University of the Philippines Professor Harry Roque cautioned the Philippine government yesterday against seeking provisional measures before the UN Tribunal on the Law of the Sea against the Chinese reclamation of disputed islands in the West Philippine Sea, saying it could open an opportunity for China to invoke reservations it had earlier made under the UNCLOS a defense.
“This action could likely trigger the reservation clause that China had placed, and which the Tribunal has allowed: namely that it be allowed military and law enforcement activities in connection with the exercise of sovereign rights,” he stated.
Prof. Roque, who is director of the Institute of International Legal Studies at the UP Law Center, was reacting to a recommendation earlier made by Supreme Court Associate Justice Antonio Carpio on the Chinese building spree.
Justice Carpio had said the Philippines should ask the ITLOS for provisional remedies the Asian superpower under Art. 290 (1) of the UN Convention on the Law of the Sea, which provides that if a dispute has been duly submitted to a tribunal of competent jurisdiction, the tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final decision.
Prof. Roque however said such action if pursued by the Philippines might boomerang against its own position because China justifies the reclamation as part of its military and law enforcement activities, pursuant to its claim of sovereign rights over the disputed areas.
He said when China joined the UNCLOS it made an express reservation under Art. 298 of the UNCLOs that it does not consider disputes concerning military and law enforcement activities in regard to the exercise of sovereign rights as covered by the jurisdiction of the Tribunal.
He said any resort to provisional remedies against the Chinese reclamation will now bring to the fore the Chinese Art. 298 reservations to the UNCLOS.
In addition, China may also argue that under the UNCLOS the reclamation of artificial islands are also recognized as a valid exercise of sovereign rights of a coastal state.
“Given this reality,” Professor Roque stated, “it becomes imperative for the Philippines to prompt the UNCLOS ad hoc Tribunal to hasten the process of its ruling, particularly on the validity of the Chinese nine-dash lines.”
The Philippines resorted to arbitration before the ITLOS in 2013, after Filipino fishermen were barred from fishing in Panatag Shoal, an area within the Philippine Exclusive Economic Zone. China however has refused to take part in the proceedings, saying that the ITLOS does not have jurisdiction over the dispute.