‘Beijing cannot invoke UNCLOS provision on military activities’

Posted on June 26, 2015

SUPREME COURT Associate Justice Antonio T. Carpio said that Beijing cannot invoke a provision in the United Nations Convention on the Law of the Sea (UNCLOS) that exempts military activities from the jurisdiction of the arbitration case.

A Japanese Maritime Self-Defense Force Lockheed P-3C Orion patrol aircraft prepares to take off as part of a joint training exercise with the Philippines at Antonio Bautista Airbase in Puerto Princesa on the western Philippine island of Palawan on June 24. -- AFP
Mr. Carpio was responding to a recent statement by international law expert H. Harry L. Roque, Jr., who said seeking relief from the tribunal to counter Chinese reclamation would boomerang on Manila because it could invoke the exemption on arbitrating law enforcement activities under Article 298 (b) of UNCLOS.

The senior justice said in an earlier lecture that the Philippines should seek a provisional remedy from the arbitration panel because China has been violating UNCLOS provisions on the protection of marine environments.

But Mr. Roque said on Tuesday that this action could backfire, providing Beijing with an opening to claim the activities as part of law enforcement and invoke the reservation clause under UNCLOS, leading the tribunal to possibly allow the acts.

Speaking at a Thursday forum at the Pamantasan ng Lungsod ng Maynila, the senior justice said Beijing could not make the move without being inconsistent, because it has stated before the tribunal that reclamation works in the South China Sea are for civilian functions.

He recalled that China’s comprehensive position paper rejecting arbitration before the International Tribunal for the Law of the Sea (ITLOS) did not invoke the said provision on military activities.

“Discussion of any issue not included in this comprehensive position paper is speculative and pointless,” Mr. Carpio said. “Clearly, China does not want to invoke military activities as a purpose of its reclamation.”

He noted that some reclamation works are being done in submerged reefs classified part of the high seas -- waters beyond coastal states’ exclusive maritime claims and considered “global commons.”

UNCLOS, he cited, reserved these waters for peaceful purposes.

“If China says reclamations are for military activities, it will immediately be incurring violation of UNCLOS,” he said. “That’s why China has been very careful. It has always said they are for civilian purposes.”

Sought for comment, Mr. Roque maintained: “Provisional might give credence to Chinese view. We can’t underestimate China.”

China claims almost the entire South China Sea, enclosing it in its unprecedented nine-dash line and infringing on five other countries’ maritime claims. Manila has lodged the arbitration case with the ITLOS in hopes of invalidating Beijing’s claim.

The Philippines is planning to buy a spy and surveillance plane from Japan as it faces growing pressure from China, which has conducted reclamation activities on areas being claimed by both Manila and Beijing.

The Department of National Defense is exploring the possibility of purchasing a P-3C Orion maritime surveillance aircraft from Japan through an Excess Defense Articles deal, spokesperson Peter Paul Galvez on Thursday said.

Under the arrangement, the military can buy the plane at a very “low” and “reasonable” price as agreed by both nations.

The Philippines saw the capability of a P-3C Orion when Japan successfully flew one during its joint naval drill with the Philippines and the United States on the South China Sea.

The P-3C Orion, which is manufactured by the American company Lockheed Martin, is described as “the ultimate submarine finder.”

The aircraft can fly for 16 straight hours with its fuel capacity of 62,560 pounds (28,376.7 kilograms), allowing it to support high-altitude reconnaissance and low-altitude missions.

The military plane is worth $45 million (P1.8 billion). -- Alden M. Monzon and Vince Alvic Alexis F. Nonato