Analyst: ICC case vs China’s Xi Jinping faces challenges
by UNTV News | Posted on Friday, March 22nd, 2019
MANILA, Philippines – The complaint filed by two former high-ranking Philippine officials against Chinese President Xi Jinping before the International Criminal Court (ICC) is facing many challenges, a maritime law expert said on Friday (March 22).
Former Ombudsman Conchita Carpio-Morales and former Foreign Affairs Secretary Albert del Rosario filed the complaint on March 13 on behalf of Filipino fishermen, accusing Xi and other Chinese government officials of committing crimes against humanity for implementing “systematic plan to control the South China Sea.”
“Over the several years, Chinese President Xi Jin Ping has ordered engineers to pile sand onto some of the sea’s disputed offshore reefs, mostly in the Spratlys, with the apparent goal of building military bases there,” the group stated in their communication.
“[Chinese Foreign Minister] Wang Yi is the Primary promoter of China’s plan in the South China Sea,” the complainants said.
“As China’s Ambassador to the Philippines, Xiao Jianhua defends, promotes and facilitates the crimes stated in this communication,” they added.
The complainants said the situation is both unique and relevant because “it presents one of the most massive, near permanent and devastating destruction of the environment on humanity’s history.”
“It adversely affects and injures not only myriad groups of vulnerable fishermen, including 320,000 Filipino fishermen, but also present and future generations of people across nations,” the complainants added.
But Prof. Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, said the complaint faces many challenges, including questions on whether ICC has jurisdiction of the case.
“’Yung loss of livelihood kasi it doesn’t per se fall under categories of crimes sa ICC. Medyo maraming magiging paliwanag pang kailangan kung talagang papasok iyon (the loss of livelihood does not per se fall under the ICC”s categories of crimes. It needs more explanation on whether it really falls under its jurisdiction),” Batongbacal said.
Despite reports on China’s alleged harassment against Filipino fishermen in the contested waters, massive reclamation of reefs and militarization in the region, the analyst thinks the complaint is lacking in certain elements.
“Hindi siya nag-involve ng tinatawag na use of force in international law, iyong aktibong pag-atake at paggamit ng dahas. Tapos in terms of injuries, hindi naman natin makita ‘no kung mayroong physical injury talaga, kahit nangyari iyon sa [Vietnamese fishermen], pero sa atin walang report. Threat lang o banta (The issue doesn’t involve what we call use of force in international law. There is no active armed attack. In terms of injuries, we do not see any physical injuries, even if it happened to Vietnamese fishermen, but in Filipinos, there was no report. Just threats),” he explained.
“Ang concern ay loss of fishing resources, iyong pag-regulate sana, paghinto sana ng illegal fishing sa ating EEZ (Exclusive Economic Zone), iyong mga gano’n pwede iyong pag-usapan sa ibang bodies tulad ‘nung within the UN (United Nations) System (The obvious concern here is the loss of fishing resources, the regulation or stoppage of illegal fishing. Those kind of concerns may be discussed by other foreign bodies within the UN system),” he added.
The Philippines’ formal withdrawal from the Hague-based body could also obstruct the case filed by del Rosario and Carpio-Morales, aside from the fact that China has never been a member of the ICC.
“Mayroong malaking obstacle diyan, iyong fact na hindi naman ever naging miyembro ng ICC ang China. Tapos pangalawa na iyong tayo, nag-withdraw pa tayo kasi supposedly, dapat iyong partido diyan ay involved iyong mga state, (There is a very big obstacle here, the fact that China is not a member of the ICC. Next is the Philippines’ withdrawal from the body. Supposedly, the states who are parties to the case should be involved with the ICC)” Batongbacal said.
Meanwhile, Opposition Senator Leila de Lima has lauded the “bold, unprecedented” move of Carpio-Morales and del Rosario to call the attention of the ICC on the plight of local fishermen affected by the maritime dispute.
“It’s in fact a masterstroke na nagpapakita kung bakit kailangan manatili tayo sa ICC. Kasi kung ganyan na foreign aggressor ang involved eh saan tayo pupunta? Kundi sa isang independent international body with universal jurisdiction (that shows why we really need to remain in the ICC. Because if a foreign aggressor is involved in the case then where will we go? To an independent international body with universal jurisdiction),” de Lima said in a statement.
by UNTV News | Posted on Wednesday, March 27th, 2019
MANILA, Philippines – Some senators believe that it is unlikely for the Philippines to default on its loans to China.
This is following concerns raised by some groups that China could seize natural resources in the hotly contested territories in the West Philippine Sea, if the Philippines fails to pay its loan obligations.
Last week, Supreme Court Associate Justice Antonio Carpio warned that the infrastructure loan agreement with China could put the country at a disadvantage.
Carpio claims the loan deal for the $62-million Chico River Irrigation project allows China to seize gas-rich Recto Bank (also known as Reed Bank) if the Philippines is unable to pay for its debts.
But Senate Minority Leader Franklin Drilon explained that the Philippines automatically pays its debts because the Presidential Decree No. 1177 mandates the automatic appropriations for annual debt servicing.
“So that provision on patrimonial property being held to pay for these debts will never happen,” he said.
Lacson also echoed Drilon’s statement, however, he does not agree with any loan provision that puts up any Philippine natural resources as collateral.
“But to say that the patrimonial assets could be collateralized, I think it’s wrong. In that case I disagree,” he said.
Malacañang has earlier said that the government has no plans of declaring Reed Bank as a patrimonial asset of the Philippines.
However, Carpio noted that under the Oil and Exploration Development Act of 1972, the Energy Department has already granted a service contract to exploit gas on the reed bank.
The move, Carpio said, made the oil and gas deposits in the area as the country’s patrimonial assets.
Patrimonial assets refer to government-owned properties which are not for public use, but are alienable and disposable.
A law is necessary to convert a public property to patrimonial asset.
Constitutional Law Expert Prof. Tony La Viña agreed with Carpio’s stance.
“He is correct. We converted potential oil resources into patrimonial assets. We already collateralized it in our commercial transactions,” La Viña said
La Viña has long been studying the government’s loan agreements, noting that the provision on patrimonial assets as collateral has always been stated in deals made with China.
“They really want collateral, but it’s not a standard when it comes to other foreign loan deals. Let’s be clear about that. That’s why China already took over ports, airports. They take over what are called patrimonial assets,” he said.
According to reports, Sri Lanka is one of the countries that had fallen into china’s debt trap. Chinese State-owned companies allegedly took over its strategic airport, the Hambantota, after it failed to pay its over $1 billion debt.
Djibouti in East Africa was also reported to be in danger of falling into debt trap, with China poised to take control of its ports.
The Department of Finance and Malacañang have insisted that the government did not offer any of the country’s natural resources as collateral for the loan deals it took with China. – Robie de Guzman (with details from Nel Maribojoc)
MANILA, Philippines — President Rodrigo Duterte will possibly visit China and Japan anew this year.
Malacañang said on Monday the President may travel to China late next month to attend the second Belt and Road Forum in Beijing.
While on May, Duterte will most likely visit Japan to primarily attend a regional conference.
Presidential Spokesperson Salvador Panelo made the statement after the Japanese media reported that Duterte will be attending the 25th International Conference on the Future of Asia.
The event is reported to be held on May 30 and 31 in Tokyo.
Panelo told reporters at a press briefing that he has yet to confirm the said visit, but if it pushes through, this will be Duterte’s third time to visit Japan since becoming president in 2016.
Duterte, meanwhile, has yet to make a visit to the United States of America since his rise to power. Panelo said this is because the President cannot stand the cold temperature in the U.S.
“I think the relationship between the U.S. and China remain cordial and healthy. So, with America, the only reason perhaps the President has not considered visiting is because of the temperature. He couldn’t stand very cold temperature, he gets sick,” he said. – Robie de Guzman (with details from Rosalie Coz)
MANILA, Philippines – Beijing has no plans of answering the complaint filed against Chinese President Xi Jinping by two former Philippine officials before the International Criminal Court (ICC), the Chinese Embassy in Manila said.
Chinese Embassy Chargé d’Affaires Tan Qingsheng said in a recent media interview that the Chinese government will just ignore the complaint as it did not represent the view of the Philippines.
Last March 13, 2019, former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio-Morales sent a communication to ICC Prosecutor Fatou Bensouda.
Del Rosario and Carpio-Morales are accusing Xi and other Chinese officials of committing crimes against humanity over Beijing’s alleged continued reclamation and militarization in the disputed waters, depriving Filipino fishermen of food and livelihood.
Tan said the complaint filed by two former high-ranking Philippine officials will not hinder the development of the diplomatic ties between the Philippines and China.
Tan also reiterated China’s commitment to promote peace and stability in the region and in addressing differences and disputes through bilateral consultations.
But Del Rosario and Carpio-Morales said on Friday (March 22) that China should take the complaint seriously.
“I think if I were China, I would take this seriously because this is not our first encounter with them. It’s our second encounter and we are very serious about winning this encounter as well,” Del Rosario said.
He was referring to the Manila’s legal challenge against Beijing’s territorial claims at the Permanent Court of Arbitration in the Hague in 2013. The tribunal ruled in favor of the Philippines in 2016.
President Rodrigo Duterte last week expressed confidence that the ICC case against Xi will not jeopardize Manila’s ties with Beijing.
He also said that Del Rosario and Carpio-Morales are entitled to file the case as the Philippines is a democratic country, but whether or not the case would prosper or if the ICC has the jurisdiction is another story.
Malacañang also respects the former officials’ decision to file the complaint but it believes that the case will not prosper.
Presidential Spokesperson Salvador Panelo said in a statement on Saturday that the filing may also be a futile exercise as the ICC has no jurisdiction over China. Carpio-Morales and Del Rosario also have no authority to lodge a case against China on behalf of the Philippines.
“It could be dismissed because China is not a member of the ICC, so is the Philippines,” Panelo said.
“Even if they are so authorized, still since our position is that the ICC has never acquired jurisdiction over us, given that the Rome statute never took effect as the requirement of publication in a newspaper of general circulation or in the Official Gazette was not complied with, which publication is a requirement in our jurisdiction before the said Rome Statute or any law for that matter becomes effective and enforceable,” he added.
The Palace official also said that the complaint against Xi for environmental damage in the South China Sea is not within the Rome Statute.
“Hence, even assuming that the Philippines was a State Party when the complaint was filed, there could be an issues as regards the jurisdiction of the ICC,” he said.
Panelo also believes that the possible dismissal of the case will be used by the administration’s foes to further criticize the President.
“The critics and detractors will have a field day criticizing the President in the event the case is dismissed by the ICC for lack of jurisdiction. They can claim that it was a mistake for the Philippine government to withdraw its membership from the Rome Statute as the ICC can no longer serve as a venue to prosecute President XI for an alleged commission of crime against humanity,” he said.
“We do not need the help or disturbance of a biased tribunal known to politically prosecute heads of state, the very reason why powerful countries like the United States, China, Russia, and Israel, to name only a few, have either withdrawn their membership as State Parties from the Rome Statute or declined to be members of the ICC,” Panelo added.
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