DFA forms legal team amid China standoff

Posted on April 28, 2012

THE FOREIGN Affairs department has created a legal team with foreign experts to prepare for the possibility of bringing the issue on the Scarborough Shoal standoff to the International Tribunal for the Law of the Sea (ITLOS) even without China’s consent, an official said on Friday.

"A legal team has been put in place in this respect. We have tapped foreign experts," Henry S. Bensurto, Jr., DFA Maritime and Ocean Affairs Secretary General, said at a Senate hearing.

His comment came following Senate President Juan Ponce Enrile’s suggestion to tap foreign law firms to prepare for unilaterally bringing the issue forward to United Nations-attached agencies like ITLOS and the International Court of Justice (ICJ).

"We should try to engage services of lawyers who devote their time to issues like this," he said, giving as an example Vietnam’s hiring of law firm Covington & Burling LLP for advice regarding its dispute with China over maritime boundaries in the South China Sea.

Mr. Bensurto, however, clarified the DFA’s position is still to invite China to discuss the issue at a forum.

"We want this to be a consensual, peaceful settlement," he said, noting that the department has a "menu of choices" including discussing the issue at the ITLOS or the ICJ.

Both countries have not made a particular declaration on their preferred mechanism to address the issue.

Mr. Bensurto said: "If at the end of the day there is no agreement on that, arbitration at ITLOS will be put into place," adding that the Philippines "may bring that forward unilaterally."

The official did not give further details, "as it [would] already constitute legal strategies."

The Scarborough Shoal (locally referred to as Panatag shoal and by China as Huangyan island) is within the 200-nuatical mile exclusive economic zone (EEZ) of the Philippines and is about 750 miles from China’s nearest point in Hainan.

On April 10, eight Chinese fishing boats were caught poaching from the shoal by BRP Gregorio del Pilar, the Philippines’ largest warship to date.

The arrest, however, was blocked by China sending two of its naval vessels on claims that the shoal belonged to them historically.

Despite noting that China has navigational rights on the Philippine’s EEZ, Mr. Bensurto said the DFA is closely looking at raising the former’s violation of the country’s sovereign rights.

"They (China) impeded the exercise of our right to enforce laws in that area. That is a denial of legitimate right, therefore that is an actionable ground," he said. The DFA has filed several diplomatic protests since the standoff.


With the legal recourses still being threshed out, Mr. Enrile opined that the country should put forward its Mutual Defense Treaty (MDT) with the United States in case attacked by China. "We can invoke the Mutual Defense Treaty if China will make the error of firing at us," he said.

"If they (the US) will not come to our rescue, it is better for us to abrogate it (MDT)," the Senate President added.

Recently, the US government affirmed its MDT with the Philippines amid growing tension between the latter and China. The MDT, however, needs approval from both parties’ Congress before one can aid the other.

China had issued a statement that the Philippines should not "internationalize" the issue by bringing in other states that have no claim over the disputed territory.

But Mr. Enrile said if the situation in the Scarborough Shoal escalates, "we cannot avoid internationalizing the issue."

The Senate hearing was called by the foreign relations committee chaired by Senator Loren B. Legarda to inquire into the diplomatic impasse between the Philippines and China. -- Antonio Siegfrid O. Alegado